IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK
ON THE 16TH DAY OF SEPTEMBER, 2019
SUIT NO. NICN/ABJ/334/2018
BETWEEN
MRS. PATIENCE AGBEN ODUMU-OJOBI …………..CLAIMANT
AND
- MINISTER OF FEDERAL CAPITAL TERRITORY (FCT)
- FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA) ….DEFENDANTS
- FEDERAL CAPITAL TERRITORY WATER BOARD
REPRESENTATION
F.D Esume with B.C.Okwunebe for the claimant
No representation for defendants
JUDGMENT
- INTRODUCTION:
This judgment centres on the lawfulness of the interdiction of the claimant. The claimant filed a complaint against the defendants on 29th day of Nov. 2018 accompanied by all the necessary documents as required by the Rules of the court. The reliefs sought by the claimant are:
(a) A DECLARATION that the purported interdiction of the claimant by the defendants as contained in the letters dated 18th day of September 2018 and July 2018 without having recourse to the requisite procedures as laid down in the public service rules, 2008 is wrongful, unlawful, null and void and of no effect whatsoever.
(b) An order of this honourable court compelling the defendants to reinstate and restore the claimant’s full salary pay up to the outstanding salaries from the month of September 2018 to date and afterward, and also restore and accord all privileges, right and appurtenances due to her and attaching to the claimant’s office without any diminution as if the event being the subject matter of this suit never occurred
(c) An order of this honourable court mandating the defendant to pay the claimant the sum of fifty million naira (N50,000000.00) as damages for the wrongful act of her interdiction and the physical and mental trauma arising from the same
(d) A PERPETUAL INJUCTION restraining the defendant whether by themselves or through their agent, officer, donees, servants and/or privies from taking any further step or action relating to the circumstances of this cases
(e) The sum of five million (N5,000,000.00) only as cost of the institution and prosecution of this case
All the defendants were served. Only the 3rd defendant filed a memorandum of appearance and a statement of defence on 5/3/2019 through a motion for extension of time which was granted on 6/3/2019. On 6/3/2019, Y. Abubakar appeared with Synthia Ugwueke for the 1st and 2nd defendants and cross examined the claimant but failed to file any process up to conclusion and adoption of final written addresses in this case.
- FACTS OF THE CASE
The claimant is a staff of the 3rd defendant. The claimant and her husband are standing trial for a criminal allegation of Conspiracy, Obtaining money by false pretences, and Criminal misappropriation at the Federal High Court 10, Abuja. The 3rd defendant, without setting up a panel or tribunal of inquiry to investigate the allegations made against the claimant, issued her with a letter of interdiction on 50% salary pending the outcome of the said criminal trial.
- CASE OF THE CLAIMANT.
The claimant testified as CW1 in line with the pleadings as follows;
I am a civil servant working with Federal Capital Territory Water Board. I was offered a temporary appointment by the 3rd defendant as accountant II dated 26th day of March 2002 and normalised with effect from 29th March, 2005. My appointment by the 3rd defendant was confirmed vide a letter dated 9th day of June, 2005 with effect from 26th March, 2004. I was severally promoted up to the post of assistant chief accountant on salary grade level 13 with effect from 1st January 2015.
I am an executive member of NAFSERVCO CO-OPERATIVE SOCIETY. For some years, the aforementioned co-operative society has a business relationship and has had some dealings with my husband’s company called ATLANTIC AND PACIFIC DEVELOPMENT PROJECT LIMITED. Some times in the year 2015, the co-operative society met and resolved to purchase rice for its members during Christmas. Following the resolution, Atlantic and Pacific Development Project limited was awarded the contract to supply the rice in December, 2015. Despite the fact that the co-operative did not fully perform its own obligations, Atlantic and Pacific development Project limited performed its own obligations by supplying the rice to the co-operative society. A third party, owner of the rice, wrote the co-operative society that the company had refused to pay the interest on the capital sum. Consequently, the president/chairman of the co-operative society threatened to deal with me should my husband’s company fail to pay the third party all his entitlement. The president/chairman of the co-operative society made good his threat by using his connection and influence to arrest and detain me and my husband over a civil matter. My husband and I were arraigned at the Federal High Court Abuja that I allegedly conspired with my husband to commit an offence. My involvement in the matter is simply because the contract was awarded to my husband’s company.
To my dismay, I was suspended and issued letters of interdiction by the defendant dated 18th September, 2018 and July 2018. The said letters of interdiction are sequel to the letter of the police to the 1st defendant dated 13th July, 2018 asking them to interdict me based on the pending case at the Federal High Court. I was not informed of any offence or misconduct of mine let alone asking me to respond to any allegation by the defendants. No panel or tribunal of inquiry was set to deliberate on the allegation made against me. My interdictions were not in accordance with Rules 030402 and 030404 of Federal Civil Service Rules 2008. I am not guilty of any misconduct that may have culminated in my suspension and interdiction by the defendants.
Following my interdictions, I caused my solicitors Felix Dumebi & Co. to write the defendants requesting them to restore my rights and privilege.
As a result of the actions of the defendants, I have incurred the cost of five million naira (N5,000,000.00) for the institution and prosecution of this case.
CW1 tendered 11 documents in evidence and they were admitted and marked as exhibits PAO1 TO PAO 11. Reference will be made to particular exhibits in the judgment as the need arises.
Under cross examination by Abubakar Esq, for the 1st and 2nd defendants, CW1 testified that her interdiction was based on a report by the police. I am not denying the fact that I am currently standing trial at the Federal High Court in respect of a criminal offence. There is another punishment meted out on me, it is the suspension.
Under cross examination by Taiwo Esq, for the 3rd defendant, CW1 testified that the other counts in the charges are obtaining money by false pretence and criminal misappropriation. These offences are serious misconduct under the Public Service Rules.
4.CASE OF THE DEFENDANTS
It is of some importance to point out that the 1st and 2nd defendants never entered appearance or filed any defence let alone call any evidence. Only the 3rd defendant filed a memorandum of appearance and a statement of defence on 5/3/2019 through a motion for extension of time which was granted on 6/3/2019. On the 6/3/2019, when the claimant opened and closed his case, the counsel for the 3rd defendant as well as counsel who appeared for the 1st and 2nd defendants without filing any process applied for a date for defence and the case was adjourned to 4/4/2019 for defence of the defendants. On the said 4/4/2019, The defendants’ counsel were both not ready and the complaint of the 3rd defendant as per Sabolo Alkali Joshua was;
” the matter is for defence but we are not ready because the 1st defendant asked us to harmonise our defence and we are yet to do that”,
Claimant counsel, Esume Esq. opposed this and asked that the 3rd defendants be foreclosed.
The 3rd defendant was foreclosed and the matter adjourned to 17/5/2019 for address. The court resumed on 20/5/2019. On the said date, counsel to the 3rd defendant moved a motion dated 5/5/2019 for an order setting aside the order for foreclosure and granting the 3rd defendant leave to open its defence. It was opposed by claimant’s counsel because the application was filed 31 days after the order of foreclosure instead of 14 days without a prayer for extension of time. The court struck out the application for being incompetent.
The 3rd defendant’s counsel then applied to withdraw his application dated 16/5/2019 seeking for an amendment of its statement of defence, the application was granted and the motion struck out.
- 3RD DEFENDANT FINAL WRITTEN ADDRESS
The learned counsel for the 3rd defendants filed a joined final written address formulating a sole issue for determination as ‘whether or not from the evidence adduced before this honourable court, the claimant has made out a case in order to be entitled to the rei1efs sought.
Counsel contended that a plaintiff or claimant seeking declaratory relief must succeed on the strength of his own case and not on the weakness or even admission of his opponent. That the burden of proof on the claimant in establishing his case is not satisfied by the failure of the defendant to adduce evidence to re-but the claims of the claimant. ADDAH VS UBANDAWA [2015] 1 NWLR (PT 1458), page 325,
Counsel submit that interdiction under the Public Service Rules 2008 is a temporary removal of an officer from performing his/ her normal duties, when he has a criminal case in Court pending the determination of the criminal case. See Rule 030404 of the Public Service Rules 2008,
counsel submit that it is not a disciplinary procedure for misconduct or gross misconduct but to temporarily relief any officer standing criminal trial of his/ her duty, the claimant has failed to appreciate the provision of rule 030403 on the disciplinary procedure for misconduct and gross misconduct.
Counsel further submit that the permanent secretary has the power to either interdict or suspend an officer, the exercise of this power is not subject to investigation of the alleged misconduct.
In conclusion, Counsel submitted that failure of the defendant to adduce any evidence does not relief the claimant of the burden to adduce credible evidence in support of this case.
- CLAIMANT FINAL WRITTEN ADDRESS
In the claimant final written address, learned claimant’s counsel submitted two issues for determination, issue one is whether the purported interdiction and suspension of the claimant by the 1st and 3rd defendants were done in accordance with the public service Rules, 2008 and in line with the principles of fair hearing.
Counsel submitted on this issue that the claimant is a senior civil servant in the employment of the defendants, the letters of interdiction of the claimant by the defendants (exhibit PA09) are solely predicated on section 030402 and 030404 of the public service rules 2008.
Counsel also submitted that there was mischief shown by the 3rd defendant in relation to the interdiction (base on the letter from the office of the Assistant inspector-General of Police) before the 3rd defendants in its letter dated 7th august 2018 to the office of the A.I.G requesting for more information. The import of the above is that the claimant was already on interdiction before getting information from the police.
That no tribunal of inquiry was set up by government before the purported disciplinary actions against the claimant. Counsel also submitted that the claimant was not convicted of any criminal offence as it is imperative to consider Rules 030402 and 030404 under section 4 (serious misconduct) of the public service Rules 2018 upon which the claimant was interdicted.
Counsel submitted that there is no established evidence that the claimant was in or was guilty of the above neither was she convicted on a criminal charge that would warrant her interdiction by the defendants. That charges preferred against the claimant at the Federal High Court which did not emanate from her office outside the province of the defendant are mere allegations.
Counsel submit that the above provisions are however subject to the provisions of Rule 030403 of the public service Rule 2008.
Counsel submit that failure of the defendants to set up a panel of inquiry as provided for before the purported interdiction and suspension constitutes a breach of the provisions of public service Rules, 2008.
That in OLABODE ADEWUNMI VS NIGERIAN EAGLE FLOUR MILLS (2014) 14 NWLR PT 1428 PG 443, at 460-461, paras D.it was held that an administrative tribunal is bound to observe the rules of natural justice. The fact that it is an administrative tribunal does not exempt it from observing the principles of Audi alteram partem and nemo judex in causa sua enshrined in the rules of natural justice
Counsel submits therefore that the purported suspension and interdiction of the claimant by the defendants are all nullity and void. UNIVERSITY COLLEGE HOSPITAL BOARD OF MANAGEMENT VS MR ISIAKA AKINBOLA MORAKINYO at 615.
Arguing on issue 2, whether or not from the claimant pleadings and evidence adduced before this Honourable Court, the claimant has made out a case in order to be entitled to the reliefs claimed in the statement of claim.
Counsel submits that in an action of this nature, the burden of proof lies on the claimant by virtue of Section 132 of the Evidence Act 2011.
Counsel urged to Honourable Court to discountenance the 3rd defendant pleadings citing the supreme court case of ALHAJI SARATU ADELEKE 7 ORS VS SANUSI HANDA & ORS (2001) 13 NWLR PT 729 PG 11
Counsel further submit that with regards to the claim of fifty million naira (N50,000,000.00) as general damages, such damages as the law will presume to be the natural or probable consequence of the Act complained of see the case of CONSOLIDATED BREWERIES PLC & ANOR VS JOSHUA A. AISOWEREN (2017) 15 NWLR PT 736 PG 424 at 457-458 para 5 H –A
Counsel concluded that having discharged the burden of proof in this case urge the court to enter judgement in favour of the claimant as per her claims.
7.ISSUES FOR DETERMINATION
The issue formulated by the defendants and the 2nd issue formulated by the claimant are the same and adequate to dispose of all issues in this case. The court shall however adjust the issue to read thus;
Whether the interdiction of the claimant for the fact that she is standing a criminal trial in court is in line with the Public Service Rules.
- COURT DECISION
I have carefully considered the pleadings of the claimant, her evidence and the written addresses of the parties. The case of the claimant is better summerised in her own words as follows;
My husband and I were arraigned at the Federal High Court Abuja that I allegedly conspired with my husband to commit an offence. My involvement in the matter is simply because the contract was awarded to my husband’s company.
To my dismay, I was suspended and issued letters of interdiction by the defendant dated 18th September, 2018 and July 2018. The said letters of interdiction are sequel to the letter of the police to the 1st defendant dated 13th July, 2018 asking them to interdict me based on the pending case at the Federal High Court. I was not informed of any offence or misconduct of mine let alone asking me to respond to any allegation by the defendants. No panel or tribunal of inquiry was set to deliberate on the allegation made against me. My interdictions were not in accordance with Rules 030402 and 030404 of Federal civil Rules 2008. I am not guilty of any misconduct that may have culminated in my suspension and interdiction by the defendants
Being that the facts relating to the interdiction are not in contention, the duty of the court is an interpretation and application of the Rules in view of the accepted facts before the Court. Accordingly, the fact that the defendants did not call any evidence is inconsequential in the circumstance of this case.
The claimant said she was also suspended; the evidence of such suspension is not before the Court. The only evidence, exhibits PAO8 and PAO9 all relate to interdiction only, placing the claimant on 50% salary pending the determination of the Court case. I find that the claimant has not been suspended but only interdicted.
It is the pleadings, evidence and admission of the claimant that she is currently standing trial at the Federal High Court in respect of criminal offences of obtaining money by false pretence and criminal misappropriation and that these offences are serious misconduct under the Public Service Rules.
Rule 030404 of the public service rules 2008 simply provides thus;
- When a serious case that may lead to dismissal has been instituted against an officer, the permanent secretary/head of extra-ministerial office may interdict him/her on not more than half pay pending the determination of the case.
- ….
iii. When an officer is interdicted, he/she shal1 cease to report for duty. In the letter informing the officer of his/her interdiction, it shall be indicated that the proportion of emoluments he/she is to receive while on interdiction shall be 50% of his/her emoluments.
- If proceedings under Rule 030404 (i) reveal that he/she is not guilty of the charge made against him/her, the officer shall immediately be reinstated and shall receive the full amount of his/her emoluments denied him/her while he/she was interdicted.
- If the officer is found guilty but not dismissed, he or she may be refunded such portion of the emoluments denied him/her as the commission may decide.
Exhibit PAO8 dated 18/9/2018 reads thus;
LETTER OF INTERDICTION
I am directed to inform you that approval has been granted for your Interdiction with effect from 31st August, 2018. This is sequel to the on going case of conspiracy, obtaining money by false pretence and criminal misappropriation against you at the Federal High Court 10, Abuja.
- Accordingly, You will be placed on half salary pending the determination of the Court case.
- Be guided accordingly, please.
Ibe, Prospect C.
Deputy Director ( A PD)
For: Permanent Secretary. FCT
Exhibit PAO9 dated 26/7/2018 similarly reads as follows;
LETTER OF INTERDICTION
The office is in receipt of a letter Ref: No CB; 35101XLEG/FHQ/ ABJ/VOL 9/185; CHARGE NO. FHC/ABJ/CR/176/2017. Between Federal Republic of Nigeria VS Patience Odumu –Ojobi & 2 ORS; dated 23rd July,2018, requesting the Board to interdict you in reference to the charges levelled against you, which is pending before the Federal High Court 10 Abuja. The charges are viz:
- Conspiracy
- Obtaining money by false pretences
iii. Criminal misappropriation
- In line with the Public Service Rules; Section 030402 (K&P) and 030404, you are hereby interdicted and therefore directed to vacate the office with immediate effect. Accordingly, you would be placed on 50% emolument pending when the case is concluded.
- You are also requested to handover your duties and all necessary official documents under your custody to the next most senior officer in the unit.
Engr .A.A Nahuche
General Manager FCTWB
When the facts of this case are considered along with the letters of interdiction in the light of Rule 030404 of the Public Service Rules 2008, it is clear that the interdiction is in order. The basis of the interdiction is solely the on going criminal prosecution.
Learned claimants counsel submits that;
No tribunal of inquiry was set up by government before the purported disciplinary actions against the claimant. Counsel also submitted that the claimant was not convicted of any criminal offence as it is imperative to consider Rules 030402 and 030404 under section 4 (serious misconduct) of the public service Rules 2018 upon which the claimant was interdicted.
That the provisions of Rule 030404 is however subject to the provisions of Rule 030403 of the public service Rule 2008.
On the other hand, learned defendants counsel submitted thus;
The contention of the 3rd defendant is also better summarised in the words of counsel as follows;
“… Interdiction under the Public Service Rules 2008 is a temporary removal of an officer from performing his/ her normal duties, when he has a criminal case in Court pending the determination of the criminal case. It is not a disciplinary procedure for misconduct or gross misconduct. The claimant has failed to appreciate the provision of rule 030403 on the disciplinary procedure for misconduct and gross misconduct.
The permanent secretary has the power to interdict … an officer, the exercise of this power is not subject to investigation of the alleged misconduct”.
Now, Rule 030403 provides thus;
Disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306.
Rules 030302 to 030306 refer to internal disciplinary procedure and it is not the same as the requirement of Rule 030404 which talks about when an officer is charged.
It is against the principle of law and the express provision of the Rules to expect the defendants to commence any other form of enquiry or investigation against the claimant in relation to a matter already being prosecuted in Court.
Accordingly, the Court agrees with the 3rd defendant’s counsel.
I find and hold that Interdiction under Rule 030404 of the Public Service Rules 2008 is a temporary removal of an officer from performing his/ her normal duties, when he/she has a criminal case in Court pending the determination of the criminal case. It is not a disciplinary procedure for misconduct or gross misconduct contemplated by Rule 030403. The permanent secretary has the power, under Rule 030404 to interdict an officer standing a criminal trial and the exercise of this power is not subject to investigation of the alleged misconduct.
On the whole, the case of the claimant is wanting in merit and same is hereby dismissed.
I make no order as to cost.
This is the judgment of the Court and it is entered accordingly.
………………………………
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA.
