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National Industrial Court

Barrister Jonah Elebe Okah -VS- Bayelsa state Civil Service

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR  A. ALKALI

 

DATE:20th NOVEMBER, 2019                              Suit No: NICN/YEN/41/2017

 

BETWEEN:

BARRISTER JONAH ELEBE OKAH                   ………………….     CLAIMANT

 

AND

  1. BAYELSA STATE CIVIL SERVICE COMMISSION
  2. THE GOVERNMENT OF BAYELSA STATE              DEFENDANTS
  3. THE ATTORNEY GENERAL & COMMISSIONER

FOR JUSTICE BAYELSA STATE

 

 

REPRESENTATION

 

Mr. Sunny O.AdolorEsq for the Claimant.

ParabomaNelson Igbomgbo Esq with TariX. Torunana for the Defendants.

 

 

JUDGMENT

 

By paragraphs 25 of the amended statement of facts filed on the 2nd day of May 2018 the Claimant sought for the following reliefs:

  1. A DECLARATIONthat the Claimant’s dismissal from the employment of the 1st and 2ndDefendants vide a letter dated 23rd November, 2016 served on the Claimant on the 30th day of November 2016 is null, void and of no effect whatsoever.

  1. AN ORDERsetting aside the dismissal of the Claimant and all steps taking in that regard.

iii.               AN ORDERdirecting the 1st and 2ndDefendants to reinstate the Claimant to his status as a Senior State Counsel without prejudice to entitlements and promotions which have accrued to him during the period of his dismissal.

  1. AN ORDEROFPERPETUALINJUNCTIONrestraining all the Defendants, their agents, servants, privies, assigns, officials and in whatsoever name called from interfering and further interfering with the Claimant’s performance of duties as a Civil Servant under the Bayelsa State Government or acting in any manner whatsoever that may negatively affect the employment of the Claimant.
  2. The sum of N5, 000,000.00 (Five Million Naira) as general damages representing stress, inconvenience and trauma.

The Defendants entered an appearance to the Claimant suit vide a Memorandum of Conditional Appearance and the accompanying processes filed in the Registry of this Honourable court on the 7th day of November 2017, the Claimant amended their Statement of Facts vide an order of this Honourable court made on the 25th day of April2018, consequent upon the Claimant’s amended statement of fact the defendants filed their consequential amended statement of defence and the accompanying document. The claimantalso reply to consequential amended statement of defence of the defendants.

Trial commenced in this suit on the 21st day of June2018, whereupon the Claimant testified for himself and called one witness Mr. Diepreye Polly Zibbs while the Defendant called two witnesses namely: Mrs Nancy W. Ikelemo, who testified as DW1 and TorioweiEbiye Andrew testified as DW2.During the trial the claimant in proof of its case tendered the following exhibits.

  1. Exhibits JN 001, an Offer of Appointment dated 24th March, 2000 admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibits JN002 is a Confirmation of Appointment dated 9th May, 2002 admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibit JN 003 is a Promotion Letter dated 1st June, 2012 same was admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibit JN 004 is a document titled “Transfer of Service into the mainstream of the Civil Service” dated 24th October, 2012 same was admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibit JN 005 is a document titled “Forwarding Letter/Reminder” dated 5th October, 2016 admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibit JN 006 is a document titled “Reply to Query/Suspension” dated the 6th October, 2016 admitted in the proceedings of Thursday 21st June, 2018.

  1. Exhibits JN 007 is a document titled ‘Forwarding Letter, Arrest of Civil Servant Re: Defamation Publication of Mr. Ritchie OnjintonefieEtonyi ‘m’ by Mr. Jonah Okah of Ministry of Justice attached to the Bayelsa State Civil Servant Commission dated the 2nd September, 2016. Admitted through CW1 in the proceedings of Thursday 21st June, 2018 CW1.

  1. Exhibit JN 008 is a document titled “Re Letter of Dismissal: Application to have a Certified True Copy of the Report of the Commission’s Investigation Panel dated 5th November, 2016” admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibit JN 009 is a document titled “Report of the Investigation Panel on alleged absence from duties, involvement in partisan politics & false claim against Government Officials by Okah Jonah Esq.” admitted through CW1 in the proceedings of Thursday 21st June, 2018.

  1. Exhibit JN 10 is a document titled “Dismissal” dated 23rdNovember, 2016 same was admitted through CW1 in the proceedings ofThursday 21st June, 2018.

The Defendants in disproving the case of the Claimant called two witnesses as earlier stated and the Defendants tendered the following documents and admitted as exhibits in the course of the trial, they are as follows:

  1. Exhibit DWAG 001 is a letter dated 8th November, 2016 titled “request for attendance register and the accompanying documents.

  1. Exhibit DWAG 002 attendance report for law officers in the Ministry of Justice from Monday 28/09/2015 – Friday 2/10/2015 dated 5th October, 2015.

  1. Exhibit DWAG 003 attendance report for Law Officers in Ministry of Justice from Monday 8th to Friday 12th February, 2016 dated 18th February, 2016.

  1. Exhibit DWAG 004 attendance report for law officers in Ministry of Justice fromMonday 24th to Friday 28th August, 2015 dated 31st August, 2015.

  1. Exhibit DWAG 005 Query Letter dated 31st August, 2016.

  1. Exhibit DWAG 006 Reply of the Claimant to the Letter of Query dated 6th October, 2016.

  1. Exhibit DWAG 007 Letter of Suspension dated 7th September, 2016.

  1. Exhibit DWAG 008 Dismissal Letter dated 23rd November, 2016.

  1. Exhibit DWAG 009 Query dated 31st August, 2016.

  1. Exhibit DWAG 010 Letter of Invitation dated 31stOctober, 2016.

  1. Exhibit DWAG 011 Minutes of Meeting of the Investigative Panel held on 1stNovember, 2016 and 9thNovember, 2016.

  1. Exhibit DWAG 012 Submission/Adoption of the Claimant to the Query/Further clarification dated 3rdNovember, 2016.

  1. Exhibit DWAG 013 report of the Investigation Panel dated 16thNovember, 2016.

  1. Exhibit DWAG 014 Forwarding Letter dated 2ndSeptember, 2016.

 

CLAIMANT’S CASE

 

 

  1. That by a letter title ‘OFFER OF APPOINTMENT’ dated the 24th day of March, 2000, he came into the employment of the Bayelsa State Broadcasting Corporation (Radio Bayelsa), an agency of the 2ndDefendant and that subsequently his employment was confirmed in accordance with the operational rules at the time by a letter titled ‘CONFIRMATION OF APPOINTMENT’ dated 9th May, 2002.

  1. That by a letter titled ‘PROMOTION’ dated 1st June, 2012,Claimant was promoted from the post of Principal Editor to Deputy Controller News on Grade Level 13 which promotion took effect from 31st March, 2012.

  1. That by a letter dated 12 July, 2012, Claimant applied for a transfer of service from the Bayelsa State Broadcasting Corporation (Radio Bayelsa) to the mainstream of the Civil Service and that a request for the transfer of service to the mainstream of the Civil Service as Senior State Counsel was granted.

  1. That the Claimant as Editor /Reporter in the agency of the 2ndDefendant the Bayelsa State Broadcasting Corporation, Claimant was placed on Salary Grade Level 08/1 vide a letter of appointment dated the 24/3/2000.

  1. That by a letter dated the 9th day of March 2002 Claimant’s appointment was confirmed on the instructions of the 1st and 2ndDefendants in the (Bayelsa State Broadcasting Corporation) and that by a letter dated the 1st day of June 2012 Claimant was promoted to the position of Deputy Controller of News on Salary Grade Level 13 Step 7 and that on the 24th day of October 2012 vide a letter of instruction from the 1stDefendant the Claimant was seconded to the office of the 1stDefendant as the Head of the Legal Department and diligently and dutifully discharged his duties as assigned to him.

  1. That while Claimant was on secondment the Claimant with due diligence prosecuted cases assigned by the 3rdDefendant on record, and he reported the progress of the court matters handled by him to the Director of Public Prosecution and that subsequent to 31/8/2016,Claimant was sick of stomach ulcer despite that fact he went to work and later came back home to pick his drugs whereupon he was arrested at his home at CMTV Street AzikoroCommunity Road Yenagoa, Bayelsa State by the Police for an alleged offence of defamation of character of one Richard Etonye a Government House Accountant.

  1. That a petition was written against him and that the said petition was duly signed by the Solicitor-General and Permanent Secretary of the Ministry of Justice, Bayelsa State, on the instructions of the 2nd and 3rdDefendants but that the said petition is untrue to the best of the Claimant’s knowledge.

  1. That on the 1st day of September, 2016, claimant was arraigned at the Magistrate court on a one count charge of criminal defamation. The Director of Public Prosecution applied to take over the prosecution of the said charge at the Magistrate Court and the said charges were withdrawn and struck out and he was discharged.

  1. That the Bayelsa State Government set up a panel on the 24th of October, 2016 via Elder Bob Francis Ozaka, Dr. Mrs. Emily Mieyefa as the Chairman as well as other members with a terms of reference: 1. To determine the Claimant’s absenteeism from duty 2. To determine the element of partisan politics allegation 3. To determine the element of false claim against Government Officials 4. To recommend any disciplinary action if found culpable. 5. To recommend any action to be taken to prevent any such re-occurrence.

  1. That after the Claimant’s release from prison he resumed work on 5thOctober, 2016 he met a new Permanent Secretary who informed Claimant vide a photocopy of a Forwarding Letter/Reminder dated 5th October, 2016, of a query and a suspension letter served the same day and time. The query letter is dated 31stAugust, 2016 beingthe date of the Claimant’s arrest, and while the suspension letter is dated the 7th day of September, 2016 all the letters were prepared while Claimant was incarcerated both letters were served on the Claimant the same day being the 5th day of October, 2016 and that the Claimant replied the query with the document titled ‘REPLY TO YOUR LETTER OF QUERY/SUSPENSION dated 6th October, 2016.

  1. That on the 1stday of November, 2016, the Claimant received a telephone call from the Head of Administration (HOD Admin) of the 1stDefendant, one Mrs. Ikelemo Nancy inviting him to meet with her in her office and on getting to the HOD’s office, Mrs. Ikelemo ushered the Claimant into the 1stDefendant Conference Hall wherein Claimant accusers a panel seated with seven (7) persons in attendance. That Dr. Emily Mieyefa was the chairman of the panel.

  1. That despite the sudden invitation claimant was put under pressure to hurriedly put up a conditional reply and response to the allegations titled ‘SUBMISSION/ADOPTION OF MY REPLY TO THE QUERY/FURTHER CLARIFICATIONS AS MY DEFENCE ON THE MATTER BEFORE THE PANEL’ dated 3rdNovember, 2016.

  1. That the panel went on the voyage of looking for document to indict the Claimant which facts and documents were not made available to the Claimant neither was Claimant given the opportunity to cross examine the witnesses of the Defendants that testified at the panel. The panel report not made available to Claimant contrary to the Public Service Rules. Despite the fact that Claimant applied for a Certified True Copy of same. That the 1stDefendant and the panel set up by the 2ndDefendant (Government of Bayelsa State) was in gross violation of his constitutional right to fair hearing of the Claimant as well as a breach of the Public Service Rules 030303, 030305, 030302, 030306 and 030407. The policy guidelines and the Bible of the Civil Service Commission was not followed.

 

THE CASE OF THE DEFENDANTS

The Defendants’ case is that the Claimant was the 2ndDefendant’s employee, who was on secondment, from its Ministry of Justice to the 1st Defendant.That the Claimant was engaged in consistent acts of absenteeism and truancy at his place of assignment, without leave or any official permission. The defendants pleaded and tendered attendance register, and that claimant was also suspected of involving himself in partisan politics and making of false claims against government officials. Sequel to the above, the claimant was queried and suspended. The 1st defendant later set up a panel to investigate following allegations against the claimant, viz; (a) absenteeism from work; (b) engaging in partisan politics and (c) making false claims against government officials. The said investigation panel, through its secretary, served the claimant an invitation letter that was pleaded in the defendants’ paragraphs of the consequential amended statement of defence which was tendered in the cause of the trial. That claimant was invited to appear before the panel and gave claimant opportunity to respond to the allegations made against him. And upon the seven man panel recommendations the claimant was dismissed from service of the 1st and 2nd defendants on record.

SUBMISSIONS OF THE DEFENDANTS

At the end of the trial the counsel for the parties filed their respective final written addresses, which were duly adopted, learned counsel for the defendants formulated two issues for determination in the final address of the defendants as follows:

  1. FROM THE CIRCUMSTANCES OF THE CASE AND THE EVIDENCE BEFORE THIS HONORUABLE COURT WHETHER THE CLAIMANT PROVED THAT HIS DISMISSAL BY THE 1ST DEFENDANT IS A NULLITY?

  1. WHETHER THE CLAIMANT IS ENTITLED TO THE CLAIM FOR GENERAL DAMAGES SOUGHT AGAINST THE DEFENDANTS?

On issue one formulated by the Defendants, learned counsel for the Defendants submitted that the Claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case learned counsel for the Defendants relied on the cases ofUKAEGBU VRS NWOLOLO (2007) ALL FWLR (PT. 466) 1852, 1881, PARAS B – E; ODUNKURE VRS OFOMATA & ANOR (2010) LPELR – 2250 (SC).

Learned counsel for the defendants contended further that in alleged unlawful termination of appointment or employment such as the instant once, the onus lies on the plaintiff to prove that the termination of the appointment is unlawful which according to the defendants’ counsel the claimant has failed to discharge that onus of proof from the pleadings filed and the evidence adduced. Learned counsel for the defendants relied on the case of OLORUNTOBA-OJU VRS ABDUL-RAHEEM (2009) ALL FWLR (PT. 497) 1, 42, PARAS B – D.

Learned counsel for the defendants contended further that from the pleadings of the claimant, the gravamen of his case is that he was denied of fair hearing by the defendants and that the claimant stated that the defendants did not give him fair hearing,during the process leading to his dismissal, through the panel that was set up to investigate the allegations against him. Learned counsel for the defendants relied on the case of P.D.P VRS ABUBAKAR (2007) 3 NWLR (PT.1022) 515, 547 PARAS C – D.

It is the contention of learned counsel for the defendants that a claim of breach of fair hearing by the claimant in the procedure that led to his dismissal is untrue, misconceived and misleading, in that from the evidence before the court (including exhibits tendered by both parties), it is a glaring fact that the claimant was given fair hearing.He referred the court to EXHIBITS CW1 – JN 012 & DW AG 005dated 31st Of August 2016;a letter ofsuspensionEXHIBITS CW1 – JN 013 & EXHIBIT DW AG 007 dated 7th September, 2016; EXHIBITS CW1 – JN 006 &DW AG 006 dated 6th October, 2016; a letter ofinvitation(EXHIBIT DW AG 010 dated 31st of October, 2016EXHIBIT DW AG 012(dated 3rd November, 016). The record of proceedings at the sitting where the claimant was present was also received in evidence and marked as exhibits DWAG 011B. Learned counsel for the defendants argued that the report of the panel of investigation EXHIBIT DWAG 013 is an indication that it was performing an administrative duty, and not a judicial one. Learned counsel for the defendants also relied on the provision of Section 36 Sub (1) of the 1999 Constitution of the Federal Republic of Nigeria, as well as the case of NEPA VRS AROBIEKE (2006) ALL FWLR (PT. 316) 284, 307 – 308, PARAS F – C.

 

Learned counsel for the defendants referred the court to some paragraphs of the amended statement of facts of the Claimant. On whether the investigative panel was empowered to summon persons to testify before it, learned counsel for the defendant submitted that from its terms of reference of the panel, such a wide power was not given to the panel to summon persons whose names came up during the hearing and receipt of evidence such as the then commissioner IV and the chairman of the civil service commission and that, it was the claimant’s duty, at the panel’s sitting, to have brought the persons he mentioned, as his witnesses according to the submissions of learned counsel for the defendants.

Learned counsel for the defendants submitted that for an employer to justify the determination of the employee’s appointment, he has to prove the following: (a) that the allegation against the employee was disclosed to him; (b) that the employee was given a fair hearing; and (c) that the employer believe that the employee committed the offence. Counsel for the defendants referred the court to the cases of OLORUNTOBA-OJO VRS ABDUL-RAHEEM (2009) NWLR (PT. 1157) 83, 145, PARAS F – Hand urged the court to hold that the defendants satisfied all the above conditions.

Learned counsel for the defendants further submitted that the onus of proof has always been on the claimant to show that his dismissal is not justified: this is because there is a presumption in favour of an officer’s dismissal, once he absents himself from duty, without leave. Counsel referred the court to RULE 030413of the Public Service Rules.

On issue two formulated by the defendants, learned counsel for the defendants submitted that a claimant who fails to prove his claim of wrongful dismissal cannot be compensated in damages and that claimant cannot claim damages on the grounds of stress, inconvenience and trauma, and that the measure of damages in cases of wrongful dismissal is prima facie the amount the employee would have earned had the employment continued according to the contract of employment.Learned counsel for the defendants referred the court to the case of S.P.D.C LTDVRS OLARENWAJU (2009) ALL FWLR (PT. 458) 208, 229 PARA C.And that in, granting damages in terms of relief 5 of the claimant together with relief 3, will amount to double compensation, counsel referred the court to the case of ARISONS TRADING CO. VRS MILITARYGOVERNOR OF OGUN STATE (200() ALL FWLR (PT. 496) 1819,1828. And learned counsel for the defendants finally urge the court to dismiss the case of the claimant.

SUBMISSIONS OF THE CLAIMANT

The learned counsel for the claimant Sunny AdolorEsq of counsel formulated five main issues for determination which are as follows:

  1. Whether the dismissal of the claimant from the employment of the 1st and 2nd defendants is in accordance with the Public Service Rules?

  1. Whether the defendants followed the statutory procedure guidingClaimant’s employment purportingto dismiss the claimant?

  1. Whether the grounds and/or reasons given by the defendants for the dismissalof the claimant are justifiable and/or supportable having regard to the evidence adduced on both sides before the Honourablecourt?

  1. Whether the 1st and 2ndDefendants by their actions and the proceedings of the panel set up to investigate the claimant leading to the filing of this action, was there flagrant breach of the public service rules and in particular the provision of the 1999 constitution as amended relating to the right to fair hearing?

  1. Whether claimant’s employment is clothed with statutory flavour to entitle this Honourable court to reinstate claimant back to his employment?

Under issue number one,  learned counsel for the claimant argued that by paragraph 3 of the amended statement of facts, the claimant pleaded thus: “The 1st defendant is at all material times the machinery/recognized body at law through which the 2nd defendant Bayelsa State Government articulates and implements its policies and programmes in the employment, supervisions and discipline of allthe employee of the 2nd defendant which the 1st defendant is capable of suing and being sued in its own name. The 1st defendant is by law bound to follow the civil service rules but that the 1st defendant breached all the relevant provisions of the rules”.

It is the contention of the learned counsel for the claimant that by the amended joint statement of defence, of the defendants, the defendants admitted paragraph 3 of the statement of fact of the claimant and contended further that facts admitted need no further proof. Learned counsel for the claimant contended that 1st defendant (Bayelsa State Civil Service Commission) has the powers to employ as well as the powers to also discipline staff and that the 1stdefendant is a creation of statute and urge the court to take judicial notice of that fact in line with the provisions of Section122 (2) (a) – (b) of theEvidence Act 2011 as amended.

Learned counsel referred the court to Exhibit CW1 JN 10 which is the letter of dismissal dated the 23rd day of November, 2016, and that the contents thereof reveals that the dismissal was based on the panel of enquiry report. He referred the court to see the content thereof, learned counsel for the claimant contended that the 1st defendant is by law bound to follow the civil service rules but that the 1st defendant breached all the relevant provisions of the rules. Claimant counsel submitted that by paragraph 25 of the amended statements of facts it is pleaded thus: it is averred that the public service rules also known as PSR, under rules 030303 clearly spells out the manner, the civil service commission must adopt in enforcing discipline that may lead to  dismissal especially when a panel was constituted and that the rule says: “The person concerned must be given the opportunity to exercise his right of reply to the issues raised in the recommendations of the panel” which was also not done in the instant case. It is his further contention that the said panel failed to comply with this sacrosanct provision of the public service rules and ignored the fact that the public service rules is the terms of contract of the employment with statutory flavour and the policy guidelines of the service between the claimant and the 1st and 2ndDefendants in terms of his employment.

Learned counsel to the claimant further contended that a very vital question begging for an answer in the entire facts presented to court by both parties i.ewho is bound to follow and or comply with the Public Service Rules in terms of disciplinary issues against staff and employee? counsel submitted that the 1st defendant is under obligation to follow the Public Service Rules,and that where  the defendants, especially the 1st and 3rd defendants fails and or neglect to comply with the public service rules, any action taken in the defiant of compliance amounts to a nullity no matter how beautifully and or elegantly conducted.

Learned counsel for the Claimants contended that the onus is on the Defendants to show step by steps the various accounts on whether the steps taken in dismissing the claimant from the employment of the Bayelsa State Government was proper, and that where any of the steps is breached, the dismissal ought to be set aside and the claimant reinstated with damages awarded in that regard. The learned counsel for the claimant contended that the defendants woefully failed to prove in the trial that the step taken in dismissing the claimant were steps devoid of fair hearing. In fact the steps taken in the dismissal of the claimant were steps apparently fraught with lack of fair hearing and that the steps towards claimant dismissal are not steps in consonance with the rule of natural justice and not also in consonance with the public service rules. Counsel to the claimant referred the court to the provisions of RULE 030307 (I) which states that: “In serious cases which are likely to lead to dismissal, the officer should be given access to any document(s) used against him/her and he/she should be asked to state in his/her defence to state that he/she has been given access to documents. The officer should be called upon to state in writing, within the period specified in the query any ground upon which he/she relies to exculpate himself/herself”.

Learned counsel to the claimant submitted that the 1st defendant in concert with the 3rd defendants as well as the other defendants suborned documentary evidence after the claimant had testified before the panel but that none of these documents was made available to the claimant, in the pendency of the sitting of the panel of enquiry set up by the 1st and 2nd defendants. Counsel draw the court attention to the records of proceedings/minutes of meeting of the said panel of enquiry tendered and admitted in evidence as exhibit.

Learned counsel to the claimant contended that the claimant was not confronted with the vital evidence from the due process office of the defendants, and that was a grave injustice which touches on fair hearing, and lack of fair hearing is fundamental fact in issue to the findings of the panel of enquiry which forms the basis for the dismissal of the claimant from office.

Counsel to the claimant submitted further that there are series of very vital questions that are begging for answers such as (i) Whetherill health is not a good reasonable excuse to be absent from duty? (ii) Taken into account that claimant was not admitted in any hospital would it not amount to falsity of facts and total abuse to falsely procure a medical certificate of ill health? (iii)What would amount to show a good reason to defend the act of sickness when the claimant was not admitted in the hospital but has drugs to curtail an ailment of ulcer? (iv)Ifthe claimant was absolved of all other accusations except absenteeism while still embellish in the dismissal letter other reasons whichclaimant has been exonerated? (v) Does it not amount to witch hunting and undue victimization of the claimant to still contain in the dismissal letter a ground that are not material to dismissal? On the above questions raised, claimant counsel urge the court to resolve all of the above sub issues in favourof the claimant and against the defendants. Learned counsel to the claimant referred the court to paragraph two of the letter of dismissal.

Counsel to the claimant submitted that from the content of the paragraphs of the letter of dismissal it is crystal clear that the 1st defendant as well as his co-defendants were all out fishing for any facts or elements to punish the claimant at all cost by including in the dismissal letter substance that are not material. Counsel contended and ask that whether attempt at settlement of a matter out of court presumes any culpability that would warrant a panel to prescribe punishment of dismissal?. The claimant counsel contended that the 1st, 2nd and 3rd defendants violated the PUBLIC SERVICE RULES 0303049 (a) (b)which states thus: “It shall be the duty of every officer to report any case of misconduct that comes to his/her notice to an officer superior to the officer involved”.

Learned counsel to the claimant submitted further that there is no such report or allegation of misconduct of absenteeism made against the claimant by any such officer until the arrest of the claimant being masterminded by the 2nd and 3rd defendants following the petition by Mr. PreyeAgedah the Permanent Secretary and Solicitor General of the Bayelsa State Ministry of Justice over a case involving the claimant and another civil servant. Does a petition against the claimant to the police on issues between claimant and one Richard Etonye not victimization taken to the extreme? That on same day of claimant arrest on the 31st of August, 2016, on the strength of the petition written by the Solicitor General and Permanent Secretary ofBayelsa State, the claimant was issued a query while he was being detained, and remanded at Okaka Prison, Yenagoa. He submit further that DW1 admitted that she was informed by the Claimant that the claimant said he was sick on the very day the claimant was arrested.

Claimant counsel referred the court to rules 030303 which states as follows:

“Where a tribunal(like the topical panel constituted by the 1st defendant) of inquiry set upon by the Government makes recommendations of a disciplinary nature, the federal (or state) Civil Service Commission shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him/her by the Tribunal of Inquiry. If the officer refuses or neglect to reply to the allegations within a reasonable time or at all, the federal (State) or its agents shall proceed to accept and enforce the recommendations of the tribunal of inquiry and take such disciplinary action against the officer as it shall deem appropriate”.

The learned counsel to the claimant contended that the defendant failed to follow due process over the dismissal of the claimant from service. Claimant relied on the case of WAEC VRS ADEYANJU (2008) SC; also SECTION 46 (i), of the CFRN, 1999; and SECTION 36 (ii) of CFRN. And that the 1st defendant breached the claimant’s right of fair hearing as provided in section 36 (I) of the verifiable reason whatsoever for the refusal of 1st defendant as well as the panel set up by the Bayelsa State Government to avail the claimant the panel report as well as the suborned attendance register, and that the non-production of the clock in and clock out attendance machine even the print out which is the  secondary evidence of the said clock in and clock out machine is fatal to the case of the defendants.

Counsel to the claimant further contended that any reason for dismissal given must be demonstrably true on the faceof it so as not to admit of any shred of uncertainty. That the question of fair hearing is not just an issue of dogma and that on whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstance surrounding a particular case; and if a panel of inquiry is done in the absence of fair hearing as in the instant case the panel report becomes a nullity and it is an apt situation and circumstance that ought to prompt the intervention of thisHonourable court in reinstating the claimant to his employment cum award of damages and injunction.

Learned counsel to the claimant argued further that it is wrong and improper for the defendants to approach the meaning of fair hearing by placing reliance on any assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the panel of enquiry which smacks at the root of it, and several questions are begging for an answer, (1) Was the claimant given the opportunity to cross examine the witnesses of the defendants that testified at the panel?, (2) Was the claimant given the opportunity to cross examine the defendants’ witnesses on the suborned attendance register from the due process office?, (3) was the claimant confronted with the suborned attendance register at the time he testified?, (4) when the attendance register was procured after the claimant testimony at the panel of enquiry why was the claimant not recalled for further enquiry on the basis of the suborned or procured attendance register?,(5) was the information in the clocking machine part of the claimant attendance?, (6) is the 1st and other defendants ought to produce same at the trial?, (7) what is the effect of the non-production of the information in the clocking machine?. And that the very essence of fair hearing under section 36 of the constitution of the federal republic of Nigeria 1999 as amended is a hearing which must be fair to 1st defendant, its co-defendants as well as the claimant as parties to the complaint against the claimant at the tribunal of inquiry; be they plaintiffs or defendants, prosecution or defence. The said section 36 of the constitution of the federal republic of Nigeria does not contemplate a standard of justice which is based in favour of defendants alone even where they were the accusers as well the judges as it appeared in the face of the records of proceedings to the prejudice of the claimant. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audialteranpartem and nemojudex in causasua. Learned counsel referred the court to the case of NDU VRS STATE (1990) 7 NWLR (PT. 164) 550. That from an opinion on objective standards whether or not an equal opportunity has been afforded to claimant at all to fully defend the accusations of the grievances of the accusers before panel of inquiry on the basis of absenteeism that was founded on procured and suborned attendance registers after the claimant testified and that the principle of fair hearing cannot be applied by the defendants as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition toput across their case at the panel of inquiry as well as the use of all documentary exhibits but that it was not so. Counsel referred the court to the case of UNIVERSITY OF LAGOS VRS AIGORO (1985) 1 NWLR (PT. 1) page 142; OGUNDOYIN VRS ADEYEMI (2001) 13 NWLR (PT. 730) 403 at 421.

On ISSUE 2 (TWO): learned counsel to the claimant submitted that the purported dismissal of claimant from the employment of the government of Bayelsa State was not in line with the extant rules of service. The claimant contend amongst several factors that he is a civil servant by which the public service rules applies to his employment and that the extant rules are the law establishing the 1st defendant, the public service rules, which the court is entitled to take judicial notice of that fact. Learned counsel for the claimant referred this Honourable court to rules 030307 of the Public Service Rules which disciplinary matters are predicated.

On the defendants allegations of claimant absent from duty learned counsel for the claimant contented that for avoidance of doubt, CW2 Mr. Polly DiepreyeZibis an eye witness account, and he testified to the effect that until the dismissal of the claimant he had always seen the claimant in the office at all the times. The CW2 was not subpoened by the seven man panel set up by the 2nd defendant and that the members of the panel of enquiry went in the frolic of their own toprocure evidence that claimant did not see. That in the testimony of the claimant before the seven man panel the claimant also mentioned commissioner 4 in his evidence before the panel, as a person who is aware of the claimant prompt services as well as attendance and reporting to work. Learned counsel to the claimant submitted that a very vital question begging for an answer is why then was commissioner 4 not invited, the way and manner the documentary evidence were suborned from the due process office?. This simply implies lack of proper investigation with respect to ground 1 on the letter of dismissal. That had the panel carried out their fact finding properly as it relates to commissioner No. 4 of the 1st defendant,  claimant ought not to have been dismissed from service of the 1st and 2nd defendants, he referred the court to the dictum of OBASEKI JSC in the case of GARBA & OTHERS VRS UNIVERSITY OF MAIDUGURI (1986) ALL N.L.R. P. 149, PP. 207, OBASEKI J.S.Cheld: “the rules requires that a person liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so as to give him an opportunity to make representations, and effectively prepare his own case and to answer the case he has to meet”.

Claimant counsel contended that a notice of the readiness of the panel of enquiry to commenced hearing was not served on the claimant but that dw1 admitted that no notice was served on the claimant but that only a telephone call made to the claimant to see her in the office with respect to other issues. Whereupon at the appearance of the claimant to the office of DW1, claimant was hurriedly ushered into awaiting room of already seated panel of inquiry to commence trial with premeditated motives. Counsel referred the court to please peruse the said purported notice if at all it bears an endorsement on the date it was received by the claimant.

Counsel further submit that from the tenor of ground 2 of the dismissal letter, is to the effect that the defendants were both the accusers as well as the adjudicators. Learned counsel for the claimant referred the court to the dictum of Karibi White JSC as he then was in the case of F.C.S.CVRS LAOYE(1989) 2 NWLR (PT. 106) p. 652, at 699,: “The Ministry of External Affairs was both the accuser and investigator of the allegations against the respondent. It is on the ministry’s report that the federal civil service commission acted. The entire disciplinary action was initiated, investigated and determined by the Ministry of External Affairs which appeared to have been a judge in its own cause. Such a situation is intolerable in our concept of justice and clearly is a breach of the rules of natural justice”.

Learned counsel to the claimant submitted that the Civil Service Commission in their letter of suspension of the claimant claimed that the query issued to the claimant on the 31st day of August 2016 was informed by a letter written to them by state CIID Yenagoadated the 2nd day of September 2016 and it is curious that the civil service  commission which claimed that its query and suspension was based on a letter from the state CIID dated 2nd day of September 2016, whereas the Civil Service Commission back dated its purported query issued to the claimant, which means there is a sharp contradictions irreconcilable in conflict betweenthe date on the letter from state CIID relied upon by the 1st defendant (Civil Service Commission) and the query itself. Counsel submitted that no one can place something on nothing and expect it to stand and that the cart cannot be placed before the horse. He referred the court to Rules 030303, and 030302 of the PSR.

He referred the court to the case of OKOCHA VRS CIVIL SERVICE COMMISSION, EDO STATE (2004) 3 NWLR(PT. 861) 494, RATIO 5, on the procedure for discipline of civil servants under the defunct Bendelstate as thus: “ …if witnesses are called to give evidence during such investigation, the officer must be present and must be allowed to put questions to the witness… In the instant case the respondents did not comply with the requirements of the Civil Service Rules before they dismissed the appellant from his employment. In the circumstance the dismissal is nulland void”

On issue two on the effect of non compliance with the Public Service Rules for discipline and principles of natural justice?,Counsel for the claimant contended that the dismissal of the claimant from the employment of the 1st defendant as well as the employment of the Bayelsa State Government is null and void, same should be set aside and we urge the Honourable court to so hold. He referred the court to the dictum of ONU JSC in the case of U.T.H.M.B VRS NNOLI(1994) 8 NWLR (PT. 363) whereONU JSCheld inter-alia:

            “when a statute directs that a certain procedure be followed before a person can be          deprived of his right, whether in respect Of his person, property or office, such a       procedure must be strictly followed; otherwise, the court will declare void any act           done   not in accordance with the prescribed procedure. “The court went further to      hold at p. 413 that “The non-observance of procedure laid down in the process of       reaching any             decision renders the decision itself a nullity”

On issue three on whether the grounds and/or reasons given by the defendant for the dismissal of the claimants are justifiable and/or supportable having regard to the evidence adduced on both sides before the Honourable court?, Learned counsel for the claimant submitted that this is not a case where no reason was given for the termination. Where no reason was given, the burden is on the claimant to prove that the reasons for his dismissal were wrongful. However, in this case, where the reasons for dismissal or termination has been well stated, the onus is on the employer to justify same before the Honourable court. He referred the court to the case of NEPA VRSADEYEMI (2007) 3 NWLR (PT. 1021) 315, PP. 331-332, PARAS H-B, RATIO 2; where the court held that “An employer is not obliged to give reasons for the dismissal of an employee. But once reasons are given and they are disputed in court, the onus lies on the employer to justify the reasons by evidential proof. The proof required here is proof beyond reasonable doubtas stipulated by section 137 of the Evidence Act…”

Also referredthe court to the case of SPDC (NIG) LTD VRS OLAREWAJU (2003) FWLR (PT. 140), PP. 1667, PARASB – C& F, the court held thus: “An employer is not bound to give reasons for terminating the employment of his employee but where he gives reasons onus lies on him to establish that cause or give reasons at the trial and to the satisfaction of the court”

On issue 4 & 5 the claimant contended that on whether the 1st and 2nd defendants by their actions and the proceedings of the panel set up to investigate the claimant leading to the filing of this action, was there any fragrant breach of the Public Service Rules and in particular the provision of the 1999 constitution as amended relating to the right to fair hearing?, And whether claimant’s employment is clothed with statutory flavour to entitle this Honourable court to reinstate claimant back to his employment?The learned counsel for the claimant submitted that the claimant employment is clothed with statutory flavour same being supported, regulated by the Public Service Rules same made pursuant to the powers conferred on the 1st defendant in line with the Public Service Rules, it follows that claimant’s employment has statutory flavour since the public service rules has been severally acclaimed to have the force of law by virtue of the Interpretation Act LFN. He referred the court to the case of OKOCHA VRS C.S.C; EDO STATE (2004) 3 NWLR (PT. 861) P. 582 PP. 509 -510, PARAS E –C, also the dictum of IDIGBE JSC in SHITTA – BEY VRS F.C.S.C (1981) 1 SC.

Counsel referred the court to the case of LONGE VRS FIRST BANK OF NIGERIA PLC (2010) ALL FWLR (PT. 525) 258, PP 307, PARAS D – F, ADEKEYE JSC, held thus:

There are three categories of contracts of employment which are:

  1. Pure master and servant relationship

  1. Servant who hold their office at the pleasure of the employer

  1. Employment with statutory flavour.

…In a contract with statutory flavour, the employment is protected by statute. In the event of termination of employment with statutory flavour, strict adherence must be made to the statute creating the employment for statutory provisions cannot be waived”

 

He submitted that the position of the law is now trite that in employment clothed with statutory flavour, once the court find that the said employment is either wrongfully and/or unlawfully terminated, the court is bound to intervene and reinstate the claimant. He urge the court to hold that indeed the claimant’semployment enjoys the status with statutory flavour and that he is entitled to reinstatement on grounds of unlawful and/or wrongful dismissal from the employment of the 1st and 2nd defendants.

 

COURT’S DECISION

I have carefully and thoughtfully read through all the processes filed by the learned counsel for and on behalf of the parties in this suit. I have listened to the witnesses who testified under oath and observed their demeanours and I have judiciously evaluated the exhibits tendered and admitted by this court. I have also heard the Oral Submissions of learned counsel for the parties on the issues raised. Before I go further let me state here that the duty of this court is not to determine the guilt or otherwise of the claimant as to whether the claimant had actuallyabsented himself from duty (Absenteeism) or that he involve himself in partisan politics or had actually made a false claim against government officials. The duty or task ahead of this court is very simple. It is only limited to look at the evidence adduced by both partiesso as to determine whether the dismissal of the claimant from the employment of 1st and 2ndDefendants was done or the Defendants acted in accordance with the laid down rules and regulations required for ascertaining such guilt or non-guilt as the case may be.

Secondly on the issue of the applicable rules in determining this matter which is characterized with a lot of contradictions. By Exhibit CW1JN 002 (Confirmation of Appointment), the Claimant’s appointment was confirmed in line with the provisions of Civil Service Rules No. 02301 suggesting that there exist Bayelsa State Civil Service Rules. In another vein, by Exhibits DWAG – 005, DWAG – 013, (Investigative Panel Report), DWAG – 007 (Letter of suspension) DWAG 008 (Dismissal Letter) were all based on the provisions of Public Service Rules 030402 and PSR 03412. In other words the query issued to the claimant, letter of suspension, the report of the investigative panel and the subsequent dismissal of the claimant were all made in pursuant to the Public Civil Service Rules and not in accordance with the Bayelsa State Civil Service Rules; which necessitated this court on the 18th November, 2019 to order both counsel to orally address this court on the propriety or otherwise of these anomalies. This is because Public Service Rules which is applicable to Public Servants in line with the provisions ofSection 153 (1) (d) of the CFRN 1999 (as amended) the state Civil Service Rules gained its origin by virtue of Section 197 (1) (a) of the CFRN 1999 (as amended).

In their address, counsel to both the Claimant and that of the Defendants informed this court that the applicable rules with regards to the disciple of civil servants in Bayelsa State is the Public Service Rules (Government Notice No. 278) Vol. 96; that is exhibit CWJN 011. Assuming without conceding that that is the applicable rule, there is no any law which signifies or tends to suggest that same was domesticated as the applicable rules in Bayelsa State. But since the claimant was queried, suspended, tried and dismissed in line with the Public Service rules, this court will adopt same as the applicable rules in the Bayelsa State Civil Service with regards to discipline of civil servants in the state.

Having the clear coast, in other to effectively and effectually determine this suit I formulated two issues for determination as follows:

  1.  Whether the dismissal of the claimant from the employment of the 1st and 2nd defendants was done in accordance with the public service rules  regulating the claimant’s contract of employment and in observance of the claimant’s right to fair hearing.

  1. Whether from the evidence adduced and circumstances surrounding this case, the claimant is entitled to the reliefs sought.

On issue one, it is the contention of the Claimant that in dismissing the Claimant the 1st and 2ndDefendants failed to abide by the provisions of Public Service Rules 0303049 (a) and (b),and that the claimant was not called upon to reply to the allegations made against him by the Investigative Panel in contravention to Rule 030303 of the Public Service Rules, and that the defendants had withheld evidence and suborned some documents (Attendance Registers) which forms basis of the Claimant’s dismissal without providing same to the Claimant so as to give him the opportunity to cross examine his accusers which is a denial to fair hearing. And urged this court to set aside the said dismissal and grant all the reliefs sought by the Claimant.

On their own part, counsel to the Defendants contends that a claim of the breach of fair hearing made by the Claimant in the procedure that led to his dismissal is untrue, misconceived and misleading, in that from the evidence adduced before this court (including the exhibits tendered by both parties), It is glaring that the claimant was given fair hearing. And that the report of the panel of investigation (Ext. DW AG 013) is an indication that it was performing an administrative duty and not a judicial one.  It is of legal importance to note that dismissal in contemporary Nigerian Jurisprudence refers to the special cases of discipline for repudiation by the employee. It is usually the power exercisable by the employer as a disciplinary action usually attributable to acts of misconduct. It is relevant that the reasons for which an employer abruptly brings a contract of employment to an end must be stated and justificable. See ABOMELI VRS NRC (SUPRA); SAVANNAH BANK NIG. PLC VRS FAKOKUN (2002) 1 NWLR (PT. 747) 544.

Parties are in agreement that the contract of employment of the claimant is one with statutory flavour. It is of legal importance to note that in a contract with statutory flavour, the procedure for employment and discipline including termination and dismissal of an employee are clearly spelt out. The settled position in such employment is that it must be terminated in the way and manner prescribed by the relevant statute or rules. That position follows from a general rule that when a statute or rules directs that a certain procedure be followed before a person can be deprived of a right such a procedure must be strictly followed otherwise the court will declare void any act done not in accordance with the prescribed procedure. See SHITTABEY VRS FCSC (SUPRA); LONGE VRS FIRST BANK NIGERIA PLC (2010) 6 NWLR (PT. 1189) 3.

Furthermore in JIRGBAGH VRS UBA PLC (2000) FWLR (PT. 26) 1790,ChukwumahEneh, JCA summarized the general position when failure to comply with contractual procedure for determination will constitute a breach in the following:

           “  (i)    Where the contract itself, though not regulated by any legislation, has made                      provision for the procedure to be followed when termination is for                                      misconduct. The summary dismissal of the employee in breach of the                                 contractual procedure would render the dismissal wrongful

            (ii)  Where a statute or a subsidiary legislation provides the procedure to be                                 followed when the dismissal of an employee is on disciplinary grounds, the                                  requirement of the statutes must be complied with when the removal of the                                   employee is for misconduct, otherwise the dismissal would be a nullity.

By the Public Service Rules, which is a subsidiary legislation, the Defendants has the powerto engage, appoint, promote, dismiss and terminate the employment of any of its staff. The rules (Exhibit CW JN 011) have constitutional force flowing from the fact that it derives its status from section 153 (1) (d) of the CFRN 1999 (As amended) which same was adopted in Bayelsa State Civil Service pursuant to section 197 (1) (a) of the CFRN 1999. And the persons over whom they apply are invested with legal status which guarantees strict adherence to the statutory provisions.

It is trite that once a subsidiary legislation conforms to the principal laws, which provide the source of their existence, such legislation becomes relevant. See the cases of GOVERNOR OF OYO STATE &ORS VRS FOLAYAN (1995) 8 NWLR (PT. 413) PG 292; OSADEBE VRS A.G BENDELSTATE (1991) 1 NWLR (PT. 169) PG 525. To that effect, I shall rely massively on the provisions of the Public Service Rules. I have taken this time to explain this position in order that the court’s decision herein and its deep reliance on Exhibit CW1 JN 011 will be appreciated. It is an elementary principle of law that in a matter for wrongful termination of employment (like in this case) the burden is upon the employee who alleges the wrongful termination to prove how the employer breach the contract of service in determining the employment. See NIGERIANGAS CO. LIMITED VRS DUDUSOLA (2005) 18 NWLR (PT. 957) 292.

The method of establishing the breach of the contract of service depends largely on the type of employment which is classified into (i) master/servant employment, (2) where a servant holds employment at the pleasure of his master and (3) an employment clothed with statutory flavour. From the examination of the evidence before this court, it is not in contest that the Claimant’s employment with the 1st and 2ndDefendants is one which enjoys statutory flavour as it relates to employment in the Civil Service of Bayelsa State. The Claimant is also a confirmed Senior Staff having been issued with Exhibits CW JN 001, CW JN 002, CW JN 003 and CW JN 004 respectively.

The law is settled on the principle that where the contract of service is protected by statute and the removal of a person is predicated upon compliance with statutory provisions,non compliance with the statutory provisions renders the removal ultra vires and void. See NNADI VRS NATIONAL EAR CARECENTRE & ANOR (2014) LPELR-22910 (CA); EKPEROKUN VRS UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 34) PG 162.

 

The claimant has alleged that the Defendants failed to abide by the stipulations enshrined in the Public Service Rules (Ext CW JN 011) in dismissing him from the service of the 1st and 2ndDefendants. The claimant was accused of serious misconduct under PSR 030402 (e), (f) and (g) that is absence from duty without leave, false claims against government officials and engaging in partisan political activities. From the evidence of CW1 and CW2 the Claimant had misunderstanding with one Mr. Richard Etonye, a fellow civil servant in the Bayelsa State Civil Service which led to the Claimant’s arrest, detention and he was subsequently charged to court. And upon the order of a Magistrate Court, the Claimant was remanded under prison custody. The Claimant was arrested on the 31stAugust, 2016 based on a petition written against him by the Solicitor General of Bayelsa State based on the instruction of the 2nd and 3rdDefendants that the Claimant had published false claims against one Mr. Richard Etonye. The Claimant regained his freedom and resumed work on the 5th October, 2016. And on that very day he was served with both a query and a suspension letter (EXT DW AG 005 and DW AG 007. The claimant replied the said query (Ext. CW JN 006).

It is the evidence of the claimant that he appeared before an Investigative Panel and made a Written Submission (Ext. DW AG 012). That the panel refused to give him the right to cross examine witnesses and some documents were suborned and that it was on the strength of those documents that the panel found him guilty and he was dismissed via Exhibit CW JN 010.

The Defendants on their own part contends that the Claimant was given every opportunity to defend himself but despite that he was found guilty and subsequently dismissed. By PSR 030401, serious misconduct was defined as a specific act of very serious wrongdoing and improper behavior which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal. And by PSR 030403 it provides that disciplinary procedure for serious misconduct shall be the procedure in accordance with Rules 030302 to 030306.

It is worthy to note that, while I aligned myself with the submissions of the learned counsel to the defendants that the claimant was given an opportunity to respond to the allegations against him based on exhibits DW AG 005 and DW AG 007 which are all responses written by the claimant. But can we conveniently say that the claimant was given adequate hearing to defend himself? And, whether the defendants had strictly complied with the provisions of PSR 030302 to 030306 before dismissing the claimant?

To ignite dismissal proceedings, an employee must be notified in writing of the grounds on which it is proposed to discipline him/her. And the commission shall caused an investigation to be made into the matter and the officer shall be entitled to know the whole case made against him and shall have adequate opportunity of making his/her defence. See PSR 30305.

By PSR 030307, the officer shall be notified in writing on the grounds on which it is proposed to discipline him and the query should be precise. And in serious cases which are likely to result to dismissal, the officer should be given access to any such document(s) or reports used against him/her.

Furthermore, by PSR 030307 (vi) and (vii), it provides that the concerned officer shall be informed that on a specific day, the question of his/her dismissal shall be brought before the Board and he/she shall be required to appear before the Board or Investigative Panel to defend himself/herself and shall be entitled to call witnesses. And that where witnesses are called to give evidence before the Board or panel, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unlesshe/she has previously been supplied with a copy thereof or given access thereto.

From the provisions of the Public Service Rules quoted and explained above, the Claimant ought to be given access to any document or reports used against him. And that he should be entitled to call witness. And wherewitnesses are called to give evidence before the Panel, the Claimant shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the Claimant unless he has previously been supplied with a copy thereof or given access thereto. The law is settled on the principle that where the provision of a statute is unambiguous, extraneous meanings must not be read into it. See UNIPETROL (NIG) PLC VRS EDO STATE BOARD OF INTERNAL REVENUE (2006) 8 NWLR (PT. 983) PG 624; ABUBAKAR & ORS VRS NASAMU & ORS (2012) LPELR – 7826 (SC).

 

From the pleadings and exhibits before me,DW AG 001 – 004 which are the attendance report submitted to the Investigative Panel and which forms the basis of the Claimant’s dismissal were not supplied to him, and he was also not given access to these documents. The panel in its sitting on 1st November, 2016 (Exhibit DW AG 001B) mandated one Josephine Ketebuwho happens to be a member of the Investigative Panel to visit due process office so as to get photocopies of the attendance register for the period the Claimant claimed to have signed the Register, but after obtaining same the Panel failed to give the said Attendance Register to the Claimant but only used same against him.

Furthermore, by Exhibit DW AG 013 which is the report of the Investigative Panel at page 4 and 5 where it was stated thus:

           “The panel also interviewed two witnesses that Mr. Jonah Okah(Claimant) made reference to in the cause of his testimony … witnesses mentioned by Mr. Jonah E.             Okah   did not support the fact that he is regular at work. Both gave evidence that      is contrary to             Mr. Okah’s position. The panel asked the Chairman of the Civil   Service Commission and he said he does not know, because he is not the     Permanent Secretary that keeps such records. The panel enquired from       Commissioner IV if he could attest to the fact that Mr. Jonah E. Okah is regular at    work to which he responded that Mr.            Okah is a        truant…”

From the contents of Exhibit DW AG 013 which is the report of the Investigative Panel one need not to get a soothsayer to inform him whether members of the Investigative Panel called witnesses and obtained evidence in the absence of the Claimant. And this contradicts the provisions of PSR 030307 (vi) and (vii). The Claimant was never given an opportunity to cross examine the said witnesses called as contained in the report. To say the least even the mode of suspension of the Claimant was irregular.  No wonder the panel in its proceedings on the 9th day of November, 2016 (Ext. DW AG 011A) categorically admitted to the said abnormalities when it was stated in the said report that the procedure to the suspension of the Claimant was not duly followed, the Panel even opined that same should be revisited.

Now coming back to the dismissal letter (Ext. DW AG 008). Earlier the Investigative Panel in its report (Ext. DW AG 013) precisely at page 5 paragraph 2 stated as follows:

           “case of false claim against government officials which could not be handled        because the matter is subjudice therefore, the panel does not have the power to             deliberate on it.”

But contrary to this position taken by the panel, the dismissal letter dated 23rdNovember, 2016 (Ext. DW AG 008) at paragraphs 3 (ii) provides as follows:

           “on the issue of your false allegation against government officials/instigation of   the public against government, your reply to the commission’s query shows that        you actually carried out the act when you stated that:myself and Richie Etonye     have spoken and talks are still going on between us to resolve the matter out    of court in a couple of days to come.”

What baffles me is that, the issue of instigation of the public against government was never part of the misconduct investigated by the panel. Even the issue of false allegation against government officials was dropped by the panel because according to them same is subjudice. I wonder how these two issues formed the basis of dismissing the Claimant.

It is my view that fair hearing in this case does not mean or limited to giving the claimant an opportunity to appear before the investigative panel. It means more than that.as OPUTA JSC (of blessed memory) put it in the case of GARBA & ORS VRS UNIVERSITY OF MAIDUGURI (1986) N.S.C.C. PG 245,that the panel must not hear evidence or receive representations behind the back of the appellants. But the committee did just that in the present suit. The claimant was not given the opportunity to confront his accusers or cross examine them. And the documents (Attendance Reports) which were used against him, same was not given to him. Indeed there is no any fair in this hearing. See also ADENIRAN VRS N.E.P.A. (2001) 47 W.R.N. 145 at 158 – 159.

The procedure adopted by the Defendants in dismissing the Claimant falls short of what was enshrined in POSR 030307 of Exhibit CW1 JN 011 (the statute regulating discipline of senior staff of the 1stDefendant) thereby offending the spirit of the provisions of Section 36(1) of the 1999 Constitution (as amended) on fair hearing.

The law is settled that any public body charged with the powers to employ staff must act within the Statute or Regulations creating it and ensure that it mandatorily abides with the provisions of that Statute and or Regulation governing its procedure for discipline or dismissal of its staff as any breach thereof would render the disciplinary measure meted out, null and void. See ADENIYI VRS GOVERNING COUNCIL, YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT. 300) 426.

Although the 1stDefendant has the powers by virtue of the relevant regulations to discipline and dismiss the Claimant, it failed to adhere to the strict provisions of the Regulations in this circumstances. Therefore I hold that the dismissal of the Claimant is null and void and cannot stand. Issue one is resolved in favour of the Claimant.

On issue two, having resolved issue one in favour of the Claimant, it becomes imperative that I look at the reliefs he seeks from this Court. As already pointed out in this judgment, it is not in doubt that the Claimant’s employment is one coated with statutory flavour. It therefore invests the Claimant with a status higher than the ordinary one of master and servant. The status of employment with statutory flavour, in its own rights, guarantees an employee’s right to fair hearing before the termination of his employment. See OLANIYAN VRS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; IMOLOAME VRS WAEC (1992) 9 NWLR (PT. 265) 303.

I am satisfied from the evidence before me that the Claimant has proved his case and is entitled to the reliefs which are available under the law with regards to the wrongful dismissal of an employee whose employment enjoys statutory flavour. The remedy to unlawful termination of employment clothed with statutory flavour is reinstatement. Once a dismissal or termination of such employment is declared unlawful or null and void, there is nothing legally standing in the way of such employee to having his or her job or office back with all the attendant rights, privileges and benefits. In other words, the Claimant is entitled to be restored to his status quo ante. See OLUFEAGBA & ORS VRS ABDUL-RAHEEM & ORS (2009) 18 NWLR (PT. 1173) PG. 384. The rationale behind this conclusion is that if the Claimant had remained in service up till date, he would have earned his salaries, allowances and all other entitlements. He should not lose these benefits if he is wrongly dismissed. This line of reasoning was also captured in the case of OLALEKAN VRS MANAGEMENT BOARD, UNIMAID TEACHING HOSPITAL (2012) LPELR-20099 (CA) where the Court, per OMOLEYE ,J.C.A, held as follows:

 “The law is settled that, where an employee’s service is protected by statute and his employment is wrongfully terminated as in the instant case, he would be entitled to re-instatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. This is because the Appellant as stated above is in a permanent and pensionable cadre of the Respondent’s establishment. His office is not at the pleasure of the Respondent. Rather, his appointment is protected by the provisions of the Act.”

Consequently, the Claimant herein should be immediately re-instated to his status quo ante and is entitled to the payment of all his salaries and entitlements from the date of the purported dismissal of his employment till date. This will suffice as the attendant cost of damages for the wrongful dismissal of the Claimant by the Defendant.

However, on the issue of damages, it is settled law that a wrongfully terminated or dismissed Claimant cannot get both reinstatement and damages at the same time; it must be one or the other. See PTI VRS NESIMONE (1995) 6 NWLR (PT. 402) at 479; ONAJA VRS AFRICANPETROLEUM LTD (1991) 7 NWLR (PT. 206) at PG 691.

I therefore hold that the Claimant cannot get both at the same time and so the Claimant’s relief (v) as to general damages must fail, and same is hereby dismissed.

For the purpose of clarity and for the reasons stated in this judgment, I hold as follows:

  1. I declare that the Claimant’s dismissal from the employment of the 1st and 2ndDefendants vide a letter dated 23rd November, 2016 and served on the Claimant on the 30th day of November, 2016 is null and void and of no effect whatsoever.

  1. I hereby set aside the dismissal of the Claimant and all steps taken in that regard.

iii.               I order the 1st and 2ndDefendants to reinstate the Claimant to his status as a Senior State Counsel without prejudice to entitlements and promotions which have accrued to him during the period of his dismissal.

  1. In line with the provisions of Section 16 and 19 (b) of the National Industrial Court Act 2006 I hereby order for a perpetual injunction restraining all defendants, their agents, servants, privies, assigns, officials and in whatsoever name called from interfering and further interfering with the Claimant’s performance of duties as a Civil Servant under the BayelsaState Government or acting in any manner whatsoever that may negatively affect the employment of the Claimant unless by a due process of law.

  1. Relief (v) for general damages is hereby dismissed.

  1. All terms of this judgment are to be complied with within 30 days from today.

vii.             Parties are to bear their respective costs.

I so hold.

Judgment is hereby entered accordingly.

_____________________________________

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

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