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National Industrial Court

Commandant James Bassey -VS- Civil Defence Immigration and

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 12TH MARCH, 2019                                              SUIT NO: NICN/ABJ/352/2015

 

 

BETWEEN

COMMANDANT JAMES BASSEY                                                                     CLAIMANT

 

AND

  1. CIVIL DEFENCE, IMMIGRATION AND PRISON SERVICE BOARD
  2. NIGERIA SECURITY AND CIVIL DEFENCE CORPS
  3. THE SPEAKER HOUSE OF REPRESENTATIVES             DEFENDANTS
  4. THE HEAD OF SERVICE OF THE FEDERAL REPUBLIC OF NIGERIA
  5. THE ATTORNEY GENERAL OF THE FEDERATION

REPRESENTATION

EGANG AGABI for the Claimant.

CHIESONU I. OKPOKO SAN with  A. O. AKINDE Esq. for the 2nd Defendant

AYOTUNDE OGUNLEYE with ADEMOLA ADELEYE Esq.  for the 3rd Defendant

BOLA ODUGBESAN Esq, with HAMIDU BASHIRU Esq. for the 4th Defendant

HABIBA U. CHIME (MRS) for the 5th Defendant

The 1st Defendant was unrepresented

JUDGEMENT

  1.             The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 22nd February, 2016 against the Defendants jointly and severally for the following reliefs:

  1. A declaration that the Proceedings and recommendations of the 3rd        Defendant in the course of its investigation of the income and expenditure of          the 1st Defendant, the regularization of Corps members and rationalization of     ranks of the lst Defendant constitute a gross violation of the 1999 Constitution          of         the Federal Republic of Nigeria and all enabling laws there being no power in       the 2nd Defendant to undertake such investigation and not having been     properly           constituted to law.

  1. A declaration that the said proceedings of the 3rd Defendant in so far as they        purport to indict the Plaintiff, constitute a violation of the Plaintiff’s        Fundamental Rights guaranteed under section 36 (1) of the 1999 constitution          and Articles 7 of the African Charter on Human and People’s Rights       (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria,     1990 and is therefore unconstitutional.

  1. A declaration that the purported dismissal of the Plaintiff by the 1st and 2nd         Defendants on the recommendation of the 3rd Defendant dated the 2nd of            February,         2005 without giving him a fair hearing constitutes a violation of the             Applicant’s Fundamental Rights guaranteed under section 36 of the 1999      constitution and Articles 7 of the African Charter on Human and People’s       Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of      Nigeria,       1990 and is therefore illegal, unconstitutional and of no effect.

  1. An order setting aside the Recommendations and or letter of recommendation       of         the 3rd Defendant’s Committee on Internal Affairs addressed to the 1st           Defendants on the 30th day of December, 2005.

  1. An order setting aside the 3rd Defendant’ s Dismissal Notice dated 3rd     February,         2005 purporting to dismiss the Claimant from service.

  1. A declaration that the Claimant’s employment with the 2nd Defendant is still        subsisting.

  1. An order that the Claimant be promoted to the Rank of Deputy Commandant        General and restoring all his privileges and entitlements.

  1. An Order that the Claimant be paid his outstanding salaries, allowances, and          all        other benefits commencing from the 1st day of January till date of     judgment.

  1.             The 4TH DEFENDANT’S STATEMENT OF DEFENCE was filed on 3rd June, 2016.

  1.             The 4th Defendant denied paragraphs 2,7,25,28,29,30,31,32,33,34,35,36,37,38,39 & 40 of the Claimant’s Statement of Facts on the ground that, the 4th’ Defendant did not employ, stop the salary, dismiss or have anything to do with the alleged employment, stoppage of salary or dismissal of the Claimant in the service of the 2nd Defendant.

  1.             Contrary to averments in paragraphs 2, 4, 11, 14 & 27 of the Claimants Statement of Facts, the 4th Defendant pleaded that:

(i)                 There was no contract of employment between the Claimant and the Head of Civil Service of the Federation (4th Defendant) under any law as the 4th Defendant was not involved in the process that led to the recruitment of the Claimant.

(ii)               That the Head of Civil Service of the Federation (4th Defendant) has nothing to do with the termination of appointment of the Claimant.

(iii)             That, the Head of Civil Service of the Federation (4th Defendant) was not aware of any plight of the Claimant while in the service of the 2nd Defendant.

(iv)             That by the admission of the Claimant in paragraph 32 in his Statement of Facts, only the Federal Civil Service Commission (FCSC) is charged with the responsibility to set up a panel of inquiry against any erring Civil Servant but not the Head of Civil Service of the Federation.

  1.             In response to paragraphs 1, 10, 11, 26, 27 & 32 of the Claimants Statement of Facts, the 4th Defendant pleaded that:

(i)                 By the admission of the Claimant in his Statement of Facts before this Honourable Court, that his employment was done by the 2 Defendant and he has no reason to bring the Head of Civil Service of the Federation (4th Defendant) into the affairs of the 1st & 2nd Defendant.

(ii)               The Claimant also admits in his Statement of Facts before this Honourable Court that, the alleged termination of his appointment being challenged in this suit was done by the 2nd Defendant and not the Head of Civil Service of the Federation sued as the 4th Defendant in this matter.

(iii)             By the admission of the Claimant in his Statement of Facts before this Honourable Court, the Board of inquiry to investigate his alleged corruption scandal can only be constituted by the Federal Civil Service Commission and not the Head of Civil Service of the Federation.

(iv)             That, by the combined effects of the Claimant’s admission in paragraphs 26 & 27 of his Statement of Facts, the cause of action in this matter had arisen as at 9th February, 2006; being the date the Claimant admitted signing his letter of dismissal.

(v)               That, the Claimant elected to commence this action on October, 2007 after the expiration of 20 months from the date the cause of action arose.

(vi)             That, the action against the 4th Defendant for acts or omissions allegedly committed sometimes around 2006 as being alleged by the Claimant in this suit must commence within three (3) months from the date the cause of action arose, failing which the Claimant’s Claim against the 4th Defendant becomes statute barred by operation of law that will result to loss of action, loss of enforcement and loss of judicial relief which cannot be enforced in any court of law in Nigeria.

  1.             WHEREOF the 4th Defendant prays this Honourable Court for the following Declaration and Orders:

(i)                 A Declaration that, the Head of Civil Service of the Federation sued as the 4th Defendant in this action did not employ the Claimant nor involved in the termination of his appointment as he alleged in the Statement of Facts.

(ii)               A Declaration that, the Head of Civil Service of the Federation sued as the 4th Defendant In this action did not send the Claimant for courses nor has the capacity to train the Claimant during his career in the service of his employer as he alleged in the Statement of Facts.

(iii)             A Declaration that, the Claimant case in this suit has not disclosed any wrongful act under any law in this country or any consequent damage arising from the act of the 4th Defendant.

(iv)             A Declaration that, an action against the 4th Defendant for the act or omissions allegedly committed in the course of its duty must commence within three (3) months from the date the cause of action arose.

(v)               A Declaration that, the Claimant’s case commenced against the 4th Defendant in this action more than 30 months after the cause of action arose cannot be maintainable as statute barred.

(vi)             An Order dismissing this suit against the Head of Civil Service of the Federation sued as the 4th Defendant in this matter on the ground that, the suit commenced by the Claimant discloses no reasonable cause of action as required by law and is manifestly not maintainable in any court of law as same is statute barred therefore lacking in merit

  1.             The 5th DEFENDANT’S STATEMENT OF DEFENCE was filed on 30th November, 2016.

The 5th Defendant in response to all the paragraphs of the Statement of Claim (that is to say, paragraphs 1 — 40), averred that the Claimant’s suit is statute barred and the Claimant did not make out any case at all against the 5th Defendant as there is no cause of action against the 5th Defendant at all.

  1.             The 5th Defendant shall contend at the hearing of the suit that:

(i)                 That this action is statute barred;

(ii)               There is no cause of action against the 5th Defendant

(iii)             (4) This suit is mischievous, vexatious and frivolous, lacks merit, an abuse of court process and is a total waste of the time of this Honourable court.

  1.             Wherefore, the 5th Defendant averred that the Claimant is not entitled to any claim as stated in paragraphs 40 (1) — (8) of his Statement of Facts or any claim at all, urging the Honourable court to dismiss this suit in its entirety with substantial cost in favour of the 5th Defendant because it is statute barred, discloses no cause against the 5th Defendant, lacks merit, is frivolous, malicious and an abuse of judicial process.

  1.             The 3RD DEFENDANT’S STATEMENT OF DEFENCE was filed on 18th July, 2017.

  1.             The 3rd Defendant admitted Paragraph 6 of the Statement of Facts only to the extent he is the Speaker of the House of Representatives of the National Assembly. However, that the House of Representatives pursuant to Section 88 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution), is vested with the power to make laws, oversee, supervise, conduct investigation, expose corruption and act as check and balance over any Ministry, Department and Agency of Government amongst which is the 1st and 2nd Defendants.

  1.             3rd defendant averred that contrary to Paragraph 21 of the Statement of facts, the Claimant at the Public Hearing was given the opportunity to make a defence for all his actions, inactions and decisions when he acted as a member of the Due Process Team of the 2nd Defendant. That he was also given the time to respond to all allegations made against him by his fellow officers present at the Public Hearing. However, he could not make a valid and concrete defence for him.

  1.             The 3rd Defendant stated that contrary to paragraph 24 of the statement of facts, the Claimant was fully aware that he was to appear before the Committee and as such should have been prepared to answer all the questions concerning his responsibilities as the Secretary of the Due Process Team, therefore his claim that he would have brought the necessary documents had he known is unfounded and baseless.

  1.             Contrary to Paragraphs 28, 29 and 30 of the Statement of facts, the 3rd Defendant averred that the Claimant was indeed guilty of acts of corruption and undue influence which findings premised his recommendation for immediate suspension and/or outright dismissal from the employ of the 2nd Defendant.

  1.             The 3rd Defendant confirming Paragraph 33 of the Statement of facts stated that the Claimant was afforded the opportunity to respond to the allegations made against him when he was invited to the Public Hearing of the Committee on Internal Affairs in August, 2005.

  1.             The 3rd Defendant denying paragraph 35 of the Claimant’s Statement of facts, stated that it did not issue any threat to the 1st Defendant or 2nd Defendant and further states that it is not responsible for allocation of funds to the 1st and 2nd Defendant.

  1.             The 3rd Defendant avers that the Internal Affairs Committee, based on the outcome of the investigation, was right to have recommended that the Claimant be dismissed from the employ of the 2nd Defendant having been found to have perpetrated acts of corruption and undue influence in running down the Civil Defence Corps. And that the Claimant is not entitled to the reliefs sought in this suit and prays this Honourable Court to dismiss the claims of the Claimant as being frivolous.

THE CLAIMANTS AMENDED REPLY TO THE 3RD DEFENDANT’S STATEMENT OF DEFENCE filed on 4th December, 2018.

  1.             The Claimant denying Paragraphs 2, 3, 4, 5 and 6 of the Statement of Defence, stated that all the averments in the Statement of Claim are true and that all activities within the House of Representative must have the approval of the 3rd Defendant as all matters discussed at the Committee level are ratified on the floor of the House of Representatives which the 3rd Respondent presides over. The 3rd Defendant, being the presiding officer of the House of Representative, necessarily should account for the activities of the House of Representative.

  1.             Denying Paragraph 7, 8, 9 , 10, 11,12and 13 of the Statement of Defence, Claimant averred that he was not in a position at the time he accompanied the then Acting Commandant General, to know the content of the letter of invitation as he was only to accompany him to the hearing of the Committee of the 3rd Respondent.

  1.             Answering Paragraphs 14, 15, 16 and 17 of the Statement of Defence, the maintained that even though a member of the Due process Team, his schedule never went beyond taking minutes and keeping minutes of proceedings. That the only question directed at the Claimant was merely seeking his opinion as to the cost of some properties purchased for the 2nd Defendant, as an Architect, and he only gave a professional assessment and never participated in the purchase in any form. And that the purchases of these properties were made by the Ministry of Internal Affairs.

  1.             In response to Paragraphs 18, 19, 20 of the Statement of defence, claimant stated that it was not within the powers of the 3rd Defendant’s committee to pass a verdict of guilty on the Claimant as there are Rules and Regulations governing his employment as well as disciplinary procedures. And that the opportunity given for defence was only in area related to the purchase of the properties acquired for the 2nd Defendant by the Ministry of Internal Affairs and Regularizations of Corps Members and Rationalization of Ranks to which the Claimant did not participate in.

  1.             At the trial, the claimant testified on his own behalf as CW, adopted his written statements on oath and affidavit of 22nd June 2016 and 4th December 2017 respectively marked C1 and C2, CW went on to tender  14 other exhibits C3 to C16. He was cross examined by Counsel to the 3rd 4th Defendant as the 1st 2nd and 5th Defendant were foreclosed from cross examining the Claimant on 19th April 2018, after 3 separate adjournments. Mr. Zakaria Gwagh Gaku, a Legal Officer in the Directorate of Legal Services National Assembly  was called by the 3rd Defendant, testified as DW, adopted his written statement on oath as D1 and tendered 3 other documents which were marked Exhibit D2-D4. None of the other Defendants called any witness. The 4th Defendant Counsel aligned with the evidence of DW and the matter was adjourned for final written addresses. The 2nd Defendant filed a Notice of Preliminary Objection on 6thJune 2018. The other parties filed their respective written addresses.; – The 4th Defendant’s final written address is dated and filed on 25th June 2018, The 3rd Defendant’s Final Written Address is dated and filed on 8th June 2018 and the 5th Defendant’s final written address is dated and filed on 18th July 2018, while the Claimant’s reply the 2nd Defendants Preliminary Objection was filed on 28th June 2018. The Claimant’s final written address was filed 23rd July 2018 and the 3rd Defendant’s reply on point of law was filed on the 2nd August 2018.

  1.             On 15th October 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

  1.             3RD DEFENDANT’S FINAL WRITTEN ADDRESS filed on 6th June, 2018.

  1.             ISSUES
  2. Whether the Claimant can be said to have been denied his right to fair hearing at   the proceedings of the Committee of the House of Representatives;

  1. Whether the Claimant has disclosed a reasonable cause of action against the           3rd Defendant in this suit.

ON ISSUE 1

 

Whether the Claimant can be said to have been denied his right to fair hearing at the proceedings of the Committee of the House of Representatives.

 

  1.             Learned Counsel submitted respectfully that the constitutionality of the right to fair hearing is not in doubt and that this right must be strictly adhered to in any Court proceedings, administrative panel or tribunal, otherwise, the proceedings no matter how well conducted would be rendered a nullity. Tsokwa Motors (Nig.) Ltd. V. U.B.A Plc. (2008) 2 NWLR (Pt. 1071) 347; Adigun v. A.G Oyo State (1991) 6 NWLR (Pt.53) 678; Okafor v. A.G Anambra State (1991) 6 NWLR (Pt. 200) 659; Leaders & Co. Ltd v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329.

 

  1.             He submitted that the right to fair hearing is a constitutional right guaranteed to all persons coming before a Court or tribunal in Nigeria as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

 

  1.             Counsel argued that the question of fair hearing is not just an issue of dogma and that whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. That the Court will not be swayed by every allegation of a violation of the right to fair hearing without looking into the circumstances of the case as justice is a two way traffic, for the claimant, as well as for the 3rd defendant. Daniel v. F.R.N (2014) 8 NWLR (Pt. 1410) 570 at 615- 616 Paras D-E; Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276 at 311 paras A-D.

 

  1.             It is Counsel’s submission that Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) providing for the right to fair hearing, is not without restraint but within bounds. In other words, that a party who is given ample and unhindered opportunity to conduct his case but refuses or fails to take advantage therewith for any reason cannot be heard to complain of a denial to his right of fair hearing. A.C.N v. Lamido (2012) 8 NWLR (Pt. 1303) 560 at 579-580 paras G-A, per Mohammed, J.S.C.

 

  1.             Furthermore, that the Claimant in presenting his evidence has failed to establish any evidence showing that the 3rd Defendant indeed violated his right to fair hearing. Ukachukwu v. P.D.P (2014) 17 NWLR (Pt. 1435) 134 at 197, para. G, Coram Mohammed J.S.C.

  1.             Counsel argued that the Claimant has not proved before the Court how his right to fair hearing was breached. And that has admitted that he was given ample time to prepare his defence and thus, his right to fair hearing was not impaired. That the law is trite that when facts are admitted by the other party, the Court is entitled to enter judgments on those admitted facts. Orodoegbulam v. Orodoegbulam (2014) 1 NWLR (Pt. 1387) 80 at 93 – 94 paragraph H-A, per Okoro, JCA.

 

  1.             Furthermore, that due to the fact that the Claimant has also failed to establish the necessary ingredients to prove the alleged breach of his right to fair hearing, the Honourable Court is urged to discountenance the Claimant’s contentions, as he who asserts must prove. Peter Ojoh v. Owuala Kamalu & Ors 2005 LPELR-2389 (SC), per Tobi, JSC.

 

ON ISSUE 2

 

Whether the Claimant has disclosed a reasonable cause of action against the 3rd Defendant in this suit.

 

  1.             Posing the question: ‘’what then is a cause of action?’’, counsel submitted that for a suit to be entertained by a Law Court, it must disclose a reasonable cause of action and that a cause of action is the entire set of circumstance giving rise to an enforceable claim. Ibrahim v. Osin (1987) 4 NWLR (Pt. 67) 965.

 

  1.             He submitted that a cause of action therefore is a set of facts that can warrant a proposed claimant to sue and the Court to grant him the relevant relief(s) sought against the Defendant(s) sued. Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20.

 

  1.             Citing the Black’s Law Dictionary, Tenth Edition, counsel submitted that the word recommendation is defined as follows:

“A specific piece of advice about what to do, esp. when given officially. A suggestion that someone should choose a particular thing or person that one thinks particularly good or meritorious”

  1.             Thus, that the recommendation of the House of Representatives has no binding force and cannot ground a cause of action. Cookey v Fombo (2005) 1 5NWLR [Pt. 947] 187; Governor of Oyo State v. Folayan (1995) INWLR (Pt. 413) 292 at 328.

 

  1.             Furthermore, that the Claimant’s case, having been founded on the recommendation made by the Committee of the House of Representatives on Internal Affairs, is founded on nothing, as a case put on nothing, cannot stand. Per Denning, MR in the celebrated case of MCfoy v. UAC (1962) AC 152.

 

  1.             Counsel contended that what is also consequent on the foregoing is that the Claimant’s claim being one for alleged wrongful termination of employment cannot be brought against the 3rd Defendant. Erinjogunla v. Omatek Group of Companies & Ors., (2012) 29 (NLLR) Pt. 83 Pg. 262 at 275, paragraph F-H, per O.A. Obaseki Osaghae., J.

 

  1.             The 2nd Defendant/Applicant filed a NOTICE OF PRELIMINARY OBJECTION on 6th June, 2018 objecting that the suit as constituted and conceived is incompetent, this Honourable Court lack the requisite jurisdiction to hear and adjudicate on same and accordingly the suit should be struck out.

GROUNDS FOR THE OBJECTION

 

  1. The Federal High Court Abuja, lack the requisite jurisdiction to transfer this suit to the National Industrial Court Abuja Division as at October, 2007.

  1. This Honourable Court lack the requisite jurisdiction to hear and/or adjudicate on this suit by virtue of the obvious provisions of Section 2 (a) of the Public Officers (protection) Act.

WRITTEN IN SUPPORT OF THE 2ND DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

ISSUE

Whether having regard to the obvious circumstances of this case, this Honourable Court has the requisite jurisdiction to hear and entertain the Claimant’s suit as constituted and conceived?

 

  1.             Learned Counsel submitted that at the time the Claimant initiated his suit at the Federal High Court, the suit is not only Statue barred by virtue of the provisions of Section 2 (a) of the Public Officers Protection Act but also the Federal High Court lacked the Jurisdiction to entertain the matter by virtue of the obvious Provisions of Section 11 of the then National Industrial Court Act 2006.

  1.             He submitted that the proper order to be made by the Federal High Court was to strike out the matter ab initio when it found that it had no jurisdiction and not to transfer same. Ajayi vs. Adebiyi (2012) 11 NWLR Part 1310 page 137 at page 182 paragraphs F—G, per Adekeye, JSC.

 

  1.             It is counsel’s submission that this Honourable Court has the inherent power to set aside the order of transfer made by the Federal High Court, since the said order was made in excess of its jurisdiction. A-G Anambra State Vs. Okafor supra, per Nnaemeka-Agu Agu JSC (of blessed memory) at p. 429; AUTO MOTOR EXPORT VSADEBAYO(2002) 18 NWLR PART799 P. 544, per Iguh, JSC at p582 paragraphs G — H.

 

  1.             Counsel submitted that in our legal system, the law is well settled without any authority to the contrary that before a litigant can invoke the judicial powers of this Honourable Court as enshrined in Section 6 (6)(b) of the 1999 Constitution as amended, three basic legal principles must be fulfilled. They are in a nutshell: –

  1. a)The court must be properly constituted;
  2. b)The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
  3. c)The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
  4.             MADUKOLU & ORS VS NKEMDILIM (1962) ALL N.L.R p587 at p595; A-G LAGOS STATE VS DOSUNMU (1989) 3 MWLR Part 111 p 552, per OPUTA, J.S.C of the blessed memory at PP 566-567 paragraphs E-B.

 

  1.             Counsel argued that in this case at hand, it is a notorious fact that the fulcrum of the Claimant’s suit is predicated upon the fact that he was served with dismissal letter on the 9th of February, 2005, he initiated this suit at the Federal High in October 2007, over 2 years from the date the cause of action arose, therefore, that the Claimant’s suit against his dismissal from the Service on the 9th of February, 2005 is statute barred by virtue of the obvious provisions of Section 2(a) of the Public Officer (Protection) Act. INEC VS OGBADIB LOCAL GOVERNMENT & ORS (2015) LPELR — 24839 (SC), per Galadima, J.S.C. at PP. 29-30 paragraphs F-A; IBRAHIM VS LAWAL (2015) LPERL -24736 (SC), per Okoro J.S.C.

 

THE CLAIMANT’S REPLY TO 2ND DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION filed on 28th June, 2018.

  1.             Claimant’s Counsel maintained that the issue now for determination is whether having regard to all that has transpired at the Federal High Court and this honorable Court, this court can entertain this objection filed by the 2nd Defendant on the 6th June, 2018.

ISSUE 1

Whether the decision/ruling of court on an issue in a suit, not appealed against can be re-opened at subsequent proceedings in the same suit by a party.

  1.             Responding in the negative, Counsel urged the Court to hold that this objection is merely academic and intended to waste the time of the court and should be dismissed with heavy cost. And that once a trial court including this court, delivers a ruling or judgment in a suit, it becomes functus officio with respect to the issue or suit. Thereafter, that the court can only make ancillary orders. KADUNA TEXTILES LTD. V. OBI (1999) 10 NWLR (PT621)138 CA. Thus, that the Defendants, including the 4th Defendant are estopped from raising this issue again.

  1.             The Counsel maintained that this is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue has with certainty and solemnity been determined against him. OYEROGBA OLAOPA (1998) 13 NWLR (PT. 583) 509 SC, ITO V EKPE (2000) 2 SC 98, EBBA V OGODO (2000) 6SC (PT.1) 133; IKENI V. EFAMO (2001) 5 SC. (PT.1) 160 OGBOGU V UGWUEGBU (2003) 4 SC (PT.1) 69.

  1.             Counsel contended that the Defendants including the 2nd Defendant not having appealed against the ruling of this court on the 13th July, 2017, are estopped from raising the same issue in subsequent proceedings. That a decision of a court or portion thereof, not appealed against remains binding on all persons and authorities and no issue can be raised therefrom. AKARE V GOVERNOR OYO STATE (2012) 12 NWLR (PT. 134) 240; CHAMI V UBA PLC (2010) 6 NWLR (PT. 1191) 474; SAUDE V ABDULLAHI (1989) 7 NWLR (PT. 116) 384; ISIAKA & ANOR. V. AMOSUN & ORS. (2016) 2 CAN PT.1) 79 SC. That this principle of law is predicated on that which says that there has to be an end to litigation.

  1.             Furthermore, that an order of court however negatively perceived by the aggrieved party remains the position of the law and must be obeyed until set aside. GWARZO MOHAMMED ABUBARKAR V MOHAMMED S. AMEEN (2013) 12 NWLR (PT. 1369) 576; GOMWALK V MIL. ADMINISTRATOR, PLATEAU STATE (1998) 7 NWLR (PT. 556) 413 CA; H.R.H OBA EZEKIEL OGUNLEYE V PRINCE JOSHUA 0. AINA (2013) All FWLR (PT.682) 1861; OBA ALADEGBAMI V OBA FASANMADE (1988) 3 NWLR (PT.81) 131.

 

  1.             Counsel contended that the situation is further worsened that this objection is being raised before the National Industrial Court. That this court would have had the jurisdiction to entertain the ruling it delivered on the 13th July, 2017 if the objection before the court by the 2nd Defendant is to the effect that the ruling was obtained by fraud, misrepresentation or any of those grounds for vitiating a ruling. OGOLO V OGOLO (2006) All FWLR (PT.313) 1, (2006) 5 NWLR (PT.972) 173; SOKOTO STATE GOVT. V KAMDEX NIG. LT142004) 9 NWLR (PT.878) 345; ABAGI V OKPOKO (2014) 4 NWLR (PT. 1396) CA.

 

Issue 2.

Whether a court can sit on appeal over an issue decided on by a court of coordinate jurisdiction.

  1.             Learned Counsel submitted that Courts are creation of the statute and it is the statute that determines its jurisdiction. That the Federal High Court, the Sharia Court of Appeal, the Customary Court of Appeal and the National Industrial Court are all courts of co-ordinate jurisdiction, thus, that they are equal in status, authority and power. NWAGWU V. UKACHUKWU (2000) FWLR (PT.2) 273; AGI3ALANYA V BELLO (1960) LLR 109.

 

  1.             He argued that the National Industrial Court, a court of coordinate jurisdiction with the Federal High Court cannot sit on appeal over the decision of the Federal High Court, urging the court to dismiss this objection with substantial cost for being an abuse of court process. On what constitutes abuse of court process, counsel cited the case of R-BENKAY NIGERIA LTD. V CADBURY NIG. LTD. (2012) LPELR -7820 SC, (2012) 3 SC (PT.111) 169; SARAKI KOTOYE (1992) 9 NWLR (PT.264) 156; OBU V J.O. OLUMBAMISE PRINTERS LTD. (2013) LPELR – 20415 CA.

 

  1.             Counsel posited that the law is strict in relation to labour related matters filed in the High Courts and the duty of the High Courts including the Federal High Court where that occurs. JOHN V IGBO-EKITI LGA (2013) 7 NWLR (PT.1352) 1 CA; UNIVERSITY OF CALABAR & 1 OR V SOCKET WORKS LIMITED & 3ORS. (2014) All FWLR (Part 743) 1866-2071 Pg. 1957

 

  1.             Counsel however argued that if the 2nd Defendant was slumbering in the course of this suit, both at the Federal High Court and this court, as to bring up this objection at this stage of the proceedings, the court is not a place for time wasting and indolence, it is for the party who is alive and kicking in the judicial process. NEWSWATCH COMMUNICATION LTD. V ATTA (2006) 4SC (PT.11) 114.

 

  1.             4TH DEFENDANT’S FINAL WRITTEN ADDRESS filed on 22nd May, 2018.

  1.             ISSUES

  1. Whether the Claimant’s suit as presently constituted discloses any reasonable cause of action against the Defendant to make the 4th Defendant a necessary party to this suit?
  2. Whether this suit commenced by the Claimant against the 4th Defendant who is public officer in law on 10th October, 2007 to enforce an alleged cause of action that arose on 9th February, 2005 when the Claimant received a letter of dismissal from the 2 Defendant is not statute barred and unenforceable in law?
  3. Whether the Claimant has proved its case and is entitled to judgment in this matter?

ON ISSUE 1

Whether the Claimant’s suit as presently constituted discloses any reasonable cause of action against the Defendant to make the 4th Defendant a necessary party to this suit?

 

  1.             Learned Counsel submitted that a reasonable cause of action consists of two fundamental elements which the law expects the Claimant case to establish simultaneously, side by side viz:

(i)                 The wrongful acts of the Defendant(s) sued; and

(ii)               The consequent damage arising from the wrongful act.

(iii)             Furthermore, that the disclosure of the requisite reasonable cause of action is a condition precedent to the court assuming jurisdiction over a matter and therefore the non-disclosure of a reasonable cause of action robs the court of jurisdiction to entertain the matter submitted to it for adjudication. ALHAJI AMINU IBRAHIM VS. FELIX OSIM (1988)3N.W.LR. (Part 82) Page 257 at 260 paragraphs A-B; of DIM CHUKWU EMEKA ODUMEGWU OJUKWU VS. ALH. UMARU MUSA YAR’ADUA & 4 ORS. (2009) 28 N.S.C.Q.R (part 1), 492 at 565, paras A-D; Adimora V. Ajufo and others (1988) 3 NWLR (PT. 80) 1; AIh. Ibrahim V. Osin (1988)3 NWLR (pt.82) 257; CHEVRON NIGERIA LIMITED V. LONESTAR DRILLING NIGERIA LIMITED (2007)31 NSCQR PAGE 91 AT 100-101.

 

  1.             He submitted that the apex Court held in the case of ATTORNEY-GENERAL OF THE FEDERATION AND 2 OTHERS VS. ALH. ATIKU ABUBAKAR AND 3 OTHERS (2007) 10 NWLR (PART 1041) PAGE 1 AT 121PARAGRAPH H: ‘’ law that there must exist a matter in actual controversy between the parties to a suit in which the court of law is called upon to determine and that once there is no such live issue between the parties, a court will lack the jurisdiction to entertain the matter. In other words, there must exist a cause of action between the parties which term may be described as a civil right or obligation for the determination by a court of law or dispute in respect of which a court is entitled to invoke its judicial powers to determine.  Chief Afolayan V. Oba Ogunrinde (1990) 1 NWLR (pt.127) 369 at 371’’; MOBIL PRODUCING NIGERIA UNLIMITED V. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY AND 3 OTHERS (2002) 18 NWLR (PART 798) PAGE 1 AT 38.
  2.             It is counsel’s submission that the general position of the law is that, parties are bound by their pleadings. And that in paragraph 1 of the Claimant Statement of Facts, the Claimant stated that he was employed by the 2nd Defendant, and during cross-examination in his response he said that he was employed by the 4th Defendant, thereby giving contradictory statement trying to mislead this Court. CHIEF O.N. NSIRIM VS. E.A. NSIRIM (1990) 3 NWLR (part 138) page 285 at 299 paragraph ‘A.
  3.             Counsel submitted that the law is trite and established that for a person to be joined as a Defendant in a suit, it must be established that the following vital issues are answered:

  1. Is it possible for the Court to adjudicate upon the cause of action set up by the Plaintiff unless the person is added as a Defendant?

 

  1. Is the person someone who ought to have been joined as a Defendant in the first instance? And

 

  1. As an alternative, is the person someone whose presence before the Court as Defendant will be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the cause?

LAGOS STATE BULK PURCHASE CORPORATION V.PURIFICATION TECHNIQUES (NIG.) LTD (2012) 52 PAGE 274 AT PAGES 304-305.

 

ON ISSUE 2

Whether this suit commenced by the Claimant against the 4th Defendant who is public officer in law on 10th October, 2007 to enforce an alleged cause of action that arose on 9th February, 2005 when the Claimant received a letter of dismissal from the 2 Defendant is not statute barred and unenforceable in law?

 

  1.             It is counsel’s submission that the Claimant’s suit is statute barred and therefore not actionable in any court of law having been commenced after 3 months contrary to the provisions of the Public Officers Protection Act Cap.P41 LFN 2004.

 

  1.             He submitted that the 4th Defendant and all other Defendants are public officers in law and therefore any suit commenced against any of the Defendants in any court of law must be commenced within the time allowed by the Limitation Laws. IBRAHIM VS. JUDICIAL SERVICE COMMISSION (1998) 12 S.C.N.J 255 at 279.

 

  1.             Counsel submitted that the position of the law is trite that in determining the period of limitation, the proper thing to be done is for the court to look at the Originating Processes alleging when the wrong was committed which gave rise to the cause of action and comparing same with the date on which the suit or case was filed. That if the time on the Originating Process is beyond the period allowed by the limitation law, then the suit is automatically statute barred and therefore non-maintainable. More so, that it also robs the court of the jurisdiction to entertain the said suit. MR. POPOOLA ELABANJO & 1 ANOTHER VS. CHIEF (MRS.) GANIAT DAWODU (2006) 27 N.S.C.Q.R 318 AT 353 PARAS. D-E, per Mahmud Mohammed J.S.C.; MRS. MARY NKEMDILIM ORANYELI VS. FIRST BANK OF NIGERIA PLC (2001) 6 N.W.L.R (PART 710) 572 AT 578 PARAS. C-D.

 

  1.             He submitted that when a matter is statute barred, as the present case is, four fundamental events have occurred in the suit. These are:

  1.       The Claimant has lost the right to action;
  2.       The Claimant has equally lost the right of enforcement

                                                          iii.      The Claimant has irretrievably lost the right to judicial relief; and

  1.       He has an empty cause of action which no court will assist him to enforce.

EGBE VS. ADEFARASIN (1987) 1 NWLR (Part 47) page 1 at 4 Paragraph ‘B’; LAFIA LOCAL GOVERNMENT VS. THE GOVERNMENT OF NASARAWA STATE AND 35 OTHERS (2012) 51 NSCQR PAGE 537-571.

 

  1.             Counsel posited that where a Claimant’s action was filed outside the time allowed by the limitation law, the Claimant would still have a cause of action but sadly one that cannot be enforced. Sanni Vs. Okene Local Govt. (2005)14 NWLR (PT 944) P.50. Eboigbe V. NNPC (1994)3 NWLR (pt347) P.649; Utib V. Egorr (1990) 5 NWLR (PT.153) P.771.

 

  1.             He submitted that jurisdiction is the power of the court and the pillar upon which the entire case stands; and where the jurisdiction is statutorily removed, the foundation of the case has crumbled. DR. GABRIEL OLUSOGA ONAGORUWA & ANOTHER VS. INSPECTOR GENERAL OF POLICE AND 5 OTHERS (1991)5 NWLR PART 193 PAGE 593 AT PAGE 639 PARAGRAPHS C-D; ALL PROGRESSIVE GRAND ALLIANCE (APGA) VS. SENATOR CHRISTIANA N.D ANYANWU AND 2 OTHERS (2014) 57 NSCQR, PAGE 364 AT 396.

 

ON ISSUE 3

Whether the Claimant has proved his case and is entitled to judgment in this matter?

 

  1.             Learned Counsel submitted that he who asserts must prove and that the onus is on the Claimant to prove that there is claim against the 4th Defendant (Head of Service of the Federation) after admitting during cross-examination that he was employed by the 2nd Defendant to the exclusion of the 4th Defendant. Sections 131, 132 and 133 of the Evidence Act; ALHAJI ABUBAKAR DAKINGARI VS. WARD & GREEN (2001) 5 NWLR (PART 707) PAGE 718 AT 729 PARAGRAPHS B-C; ALHAJI ISAH T. SOKWO V. JOSEPH DAKUKPONGBO & 3 ORS. (2008) 7 NWLR (PART 1086) PAGE 342 AT 362, PARAGRAPHS D-F.

 

  1.             He submitted that the law is trite that the responsibility of evaluating evidence rests squarely with the trial court and in doing that, the trial Judge is expected to carefully examine all the evidence placed before him before arriving at its decision on the matter. SAMUEL ADELEKE & 4 OTHERS V. CHIEF ADEGBENRO BALOGUN & 4 OTHERS (2000) 4 NWLR (PART 651) PAGE 113 AT 126 PARAGRAPHS A-F; ANYAEGBUSI OZURUOKE & 3 OTHERS V. JOHN OKOLIE & 3 OTHERS. (2000) 1 NWLR (PART 642), PAGE 569 AT 575; DR. KEVIN OCHIN & 15 OTHERS V. PROF. ONUORA LOUIS VICTOR EKPECHI (2000) 5 NWLR (PART 656) 225 AT 242.

 

 

5TH DEFENDANT’S FINAL WRITTEN ADDRESS filed on 13th July, 2018.

ISSUES

(i)                 Whether having regard to the obvious facts and circumstances of this case, this Honourable court has the requisite jurisdiction to hear and adjudicate the Claimant’s suit as constituted and conceived?

(ii)               Whether the Plaintiff in his Statement of facts has made out any case against the 5th Defendant?

ON ISSUE 1

Whether having regard to the obvious facts and circumstances of this case, this Honourable court has the requisite jurisdiction to hear and adjudicate the Claimant’s suit as constituted and conceived?

 

  1.             Counsel submitted that this suit is statute barred having been instituted long after the time legally provided for it to be instituted, and thus, robs this Honourable court of the requisite jurisdiction to adjudicate over this matter. He urged the Court to ponder on these questions:

(vii)            Whether the Defendants are public officers as contemplated by                               of Public Officers Protection Act?

(viii)           When did time start to run and has the Complainant been                                  caught by the statute of Limitation?

(ix)            Is the action barred by statute?

IBRAHIM V JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) LPELR — 1408 (SC) at Page 27, per IGUH, J.S.C.

 

  1.             Counsel noted that the Plaintiff was disengaged from service as averred in paragraph 27 of the Statement of Facts on the 2nd day of February, 2005 and this suit was filed on the filed on the 11th of April, 2016, a period of 11 (Eleven Years) 2 (two) months more than 3 months allowed under Section 2a of the Public Officers (Protection) Act Cap 379 Laws of the Federation of Nigeria. Therefore, that the Plaintiff’s action in consequence is STATUTE BARRED and this Honourable Court lacks jurisdiction to entertain the Suit. Per Okoro J.S.C. in IBRAHIM VS LAWAL (2015) LPELR — 24736.

 

  1.             He submitted that where an action has been held to be statute barred, the proper order to make is that of dismissal and not striking out the action. CHRISTIANA I. YARE VS NATONAL SALARIES, WAGES AND INCOME COMMISSION (2013) LPELR-20520 (SC).

 

ON ISSUE 2

Whether the Plaintiff in his Statement of facts has made out any case against the 5th Defendant?

  1.             Learned Counsel posited that before a Claimant or Plaintiff can invoke the judicial powers of this Honourable court as enshrined in Section 6 (6) (a) and (b) of the 1999 Constitution as amended, he must establish a wrongful act of the defendant or defendants which gives him the right to seek remedy. UWAZURUONYE VS GOVERNOR OF IMO STATE (2013) 8 NWLR PART 1355 P. 28, per Rhodes Vivour, JSC at pages 56 — 57 paragraph D.

 

  1.             Counsel maintained that the 2nd Defendant is a creation of statute (Nigeria Security and Civil Defence Corps Act, 2007) and therefore a juristic person capable of suing and being sued in its own name. And that just because the 5th Defendant is the Chief Law Officer of the Federation does not mean that he should be joined in every suit even when the party directly involved, though an agency of the government, is a legal person. AG KANO STATE VS AG FEDERATION (2007) 6 MJSC Page 8 or (2007) 10 NWLR Pt. 1041, page 1 per Kalgo, JSC (as he then was).

 

THE CLAIMANT’S FINAL WRITTEN ADDRESS filed on 23rd July, 2018.

ISSUES

  1.             Whether the decision/ruling of court on an issue in a suit, not appealed against can be re-opened at subsequent proceedings in the same suit by a party.
  2.             Whether a contract of employment with statutory flavor can be terminated without recourse to the manner prescribed by the statute.
  3.             Whether the defendants are in breach of the claimant’s contract of employment and whether he is entitled to damages.

 

ON ISSUE 1

Whether the decision/ruling of court on an issue in a suit, not appealed against can be re-opened at subsequent proceedings in the same suit by a party.

 

  1.             Counsel contended that since after delivering this ruling on the 13th July, 2017, neither the 4th Defendant nor any of the defendants has challenged the decision of this court; and that a decision of a court or portion thereof, not appealed against remains binding on all persons and authorities and no issue can be raised therefrom. AKARE V GOVERNOR OYO STATE (2012) 12 NWLR (PT. 134) 240; CHAMI V UBA PLC (2010) 6 NWLR (PT. 1191) 474; SAUDE V ABDULLAHI (1989) 7 NWLR (PT. 116) 384; ISIAKA & ANOR. V. AMOSUN & ORS. (2016) 2 CAN PT.1) 79 SC.

 

  1.             Counsel submitted that once a trial court including this court, delivers a ruling or judgment in a suit, it becomes functus officio with respect to the issue or suit. Thereafter, that the court can only make ancillary orders. KADUNA TEXTILES LTD. 0131 (1999) 10 NWLR (PT.621)138 CA.

 

  1.             He maintained that this is based on the principle of law that a party is precluded from contending the contrary or opposite of any specific point which having been once distinctly put in issue has with certainty and solemnity been determined against him. OYEROGBA OLAOPA (1998) 13 NWLR (PT. 583) 509 SC; ITO V EKPE (2000) 2 SC 98; EBBA V OGODO (2000) 6SC (PT.1) 133.

 

ON ISSUE 2

Whether a contract of employment with statutory flavor can be terminated without recourse to the manner prescribed by the statute.

 

  1.             It is counsel’s contention that the dismissal of the Claimant not having been in accordance with procedure for dismissing him as provided for in the Federal Public Service Rules, therefore the purported letter of dismissal dated the 2nd February, 2005 is a nullity. And that by relying on the provisions of PSR 04406, the 1st and 2nd Defendants have expressly confirmed that the Claimant’s employment is governed by the Federal Government Public Service Rules (PSR). CHAPTER 4, SECTION 3 PSR 04406 of the Federal Public Service Rules (PSR).

 

  1.             Counsel submitted that it is well established law that when any legislation prescribes a procedure for doing a thing or performing an act, only that procedure is allowed to be followed; and that the performance of the act through any other procedure /method shall amount to a nullity. LLOYD V MCMAHON (1987) AC 625 at 70211 – 703A, per Lord Bridge.

 

  1.             He posited that CHAPTER 4, Section 3 (04303) and (04306), Federal Government Public Service Rule finds support in the law that a Public Officer against whom an allegation of gross misconduct is laid cannot be removed without being heard. FUT, YOLA V MAIWUYA & 2ORS (2014) 3 ACELR P64 at 75 lines 14 & 15; NEPA V ANGO (2001) 17WRN Pg. 142. Furthermore, that an employee’s wrong doing must be specific and he is entitled to a formal notice of such wrong doing and a hearing on that specific act. AIYETAN V NIGERIAN INST. FOR OIL PALM RESEARCH (1987) 3NWLR (PT.59) PG. 48; ADENIYI V GOVERNING COUNCIL YABATECH (1993) 6 NWLR (PT. 300) Pg. 426.

 

  1.             It is counsel’s contention that the misapplication of the Federal Public Service Rules to the case of the Claimant on the allegation of misconduct by relying on the wrong provision of the Federal Government Public Service Rules (PSR) has occasioned a miscarriage of justice, that is the application of CHAPTER 4, SECTION 3 PSR 04406, without recourse to Chapter 4 Section 3 PSR 04402.

 

  1.             Counsel posited that there is need for employer to adhere to the condition of employment before terminating same as it is trite that he who hires can fire. However, that it nevertheless remains the law that an employer must observe and adhere to the condition under which the employee is hired before such an employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of services of the employee. FIICHARLES ORGAN V NIG. LIQUIFIED NATURAL GAS LTD. (2013) (7) LEDLR – 14 GARBA V KWARA INVESTMENT Co. LTD. (2005) 5 NWLR (PT917) 160; OSISANYA V AFRIBANK NIG1 PLC (2007) 6 NWLR (PT.1031) 565.

 

  1.             Counsel argued that the position of the law is that No Body, Investigating Panel or Disciplinary Board has the jurisdictional competence to try an allegation bordering on criminality with penal sanctions, so far as they are not courts of law. DENLOYE V MEDICAL & DENTAL PRACTITIONERS’ DISCIPLINARY COMMITTEE (1968)1 ALL NLR 306 at 365; SAKETUN V AKINYEMI & 3ORS (1980) 5-7 SC 1; FSC V LAOYE (1989) 2 NWLR (PT.106) 652; MEDICAL & DENTAL PRACTITIONERS’ DISCIPLINARY TRIBUNAL V DR. J.E.N. OKONKWO (2001) 85 LRCN 908@.

 

  1.             He submitted that the dismissal of the Claimant by the 1st and 2nd Defendant without recourse to the terms of his employment, which is taking directive from the 3rd Defendant, a separate arm of Government and also not the employer of the Claimant is regrettable. That the act of the 3rd Defendant is tantamount to executing Legislative Judgment which is equally highly regrettable as the Court has warned against Legislative Judgment in the case of AG ADAMAWA V AG FEDERATION (2006) ALL FWLR (PT. 299) P.1450.

 

  1.             It is counsel’s submission that the parties to a written contract are mutually bound by the terms contained in the agreement and that the Court’s intervention can only arise where it is shown that the terms are illegal or contrary to public policy. ROBINET NIG. LTD. V. SHELL NIG. GAS LTD CA/L/775/2010; 2013/CA/L/ (11) LEDLR-1O; MARYAM V IDRIS (2000) FWLR (PT.23) 1237; AFROTECH VM.I.A & (SONS) LTD. (2000) SC (PT.11) 1; KOIKI V MAGNISSON (1999) 8 NWLR (PT. 615)492.

 

  1.             Counsel pointed out that throughout the proceedings in court and or hearing of the 3rd Defendant’s committee, no document was tendered in evidence in proof of the allegation of sidelining his colleagues in the course of his assignment duty as claimed. That the position of the law is that he who assert must prove. The 3rd Defendant has made heavy weather of the Claimant’s guilt in the hearing of its committee where he made recommendation to the 1st and 2nd Defendants for his dismissal. And that in all this spurious allegations and claims, no evidence has been called in support or proof. YUSUF V OYETUNDE (1998) 12 NWLR (PT.579) 483 SC.

 

  1.             Counsel pointing out that the Claimant has told this Court in paragraphs 17, 18 and of his Statement on Oath that he was merely invited to the 3rd Defendant’s hearing by the then Commandant General of the 2nd Defendant without notice of what to expect at the hearing, submitted that this position occasioned a miscarriage of justice and offends the Principle of Fair Hearing as enshrined in the Constitution. NUC & ORS V SELONG & ORS (2010) LPELR -4582(CA), Pp. 30-3 1, paras. GC.

 

  1.             Counsel argued that the act of dismissing the Claimant before he was heard was not done in connection with or in pursuance of any law, as there is none that condemns a man before being heard. That no man shall be condemned unheard is a Constitutional provision. That it was done with ulterior motive and maliciously and in bad faith therefore injuring the Claimant. EGBE V ADEFARASIN (1985) 1 NWLR (PT.3) 560 referred to (p.535) paras. F-G. See also UNILORIN V ADENIRAN (2007) 6 NWLR (PT. 1031) Pg. 506-507.

 

ON ISSUE 3

Whether the defendants are in breach of the claimant’s contract of employment and whether he is entitled to damages.

 

  1.             Learned Counsel submitted that by the misapplication of the terms of employment and the procedure for dismissing an employee under the Federal Public Service Rules, the 1st and 2nd Defendants have breached the terms of employment/contract of the Claimant; as a party is said to be in breach of a contract when he acts contrary to the terms of the contract. MTN COMMUNICATIONS LTD V SIDNEY C. AMADI (2013) All FWLR (PT. 670)1329.

 

  1.             He submitted that Contracts of employment like all other contracts, their creation and termination are both subject to the general principles governing the law of contract. Hence where the contract of employment is in writing the parties are bound by the express terms and conditions so stipulated. OLAINYAN & ORS V UNILAG & ANOR. (1985) LPELR 2565 (SC), (1985) 2 NWLR (PT. 9) 599.

 

  1.             Counsel submitted that the right to legal remedies for breach of contract or any other legal right exists and is exercisable by operation of law. That if a party, who alleges that his contract or other legal right is breached, asks for remedy in accordance with the due process of law, if the facts and the law support the grant of remedy, it should be granted. That the remedy need not be stipulated in the agreement before a party can be granted; and that a party’s entitlement to a remedy results from the breach of his or her express or implied contractual rights. SOCIETE COMMERCIALE DEL’ OUEST AFRICAN NIG. LTD. PLC. V MRS GLADYS A. OZAH & ORS. CA/E/3 52/2006; 2013/CA/E (7) LEDLR-9.

 

  1.             It is Counsel’s submission that the Claimant approaching this court with these reliefs is in accordance with the law as the law provides that a party should approach the court to seek remedy whenever his contract of employment is breached. AKINOLA & ORS V LAFARGE CEMENT WAPCO NIG. PLC. (2015)LPELR- 24630 (CA); STRABAG VADEYEFA (2001) 19 WRN 64, (2001) 15 NWLR (PT. 735) 1.

 

  1.             He posited that the remedy open to an employee whose employment is wrongly determined is reinstatement in addition to other benefits he ought to have enjoyed had his employment not been wrongly terminated, particularly when the employment is protected by statute as in the instant case where the employment is protected by the Public Service Rules, is reinstatement and damages. SHITTA-BEY V THE FEDERAL PUBLIC SERVICE COMMISSION (1981)1 S.C. 40; OLANIYAN V UNIVERSITY OF LAGOS (1985)2 NWLR (PT.9)599; UDO V CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 14 NWLR (PT.732) 116; N.B.T.E. V ANYAWU (2005) FWLR (PT.256) 1266 @1284; CBN VIWILLO (2012) 1 NWLR 1 @ 21 (PARAS. C-D); LAGOS STATE GOVT. V MRS. C.S.K TOLUWASE (2013) 1 NWLR (PT.1336) 555.

 

  1.             Counsel submitted that Employees who are members of the public service should have their jealously guarded and all rules, regulation and procedural provisions pertaining to them, meticulously followed. DR. TAIWO OLORUNTOBA-OJU & ORS. VPROF. SHUAIBU 0. ABDULRAHEEM & ORS (2009) LPELR 2596 (SC); POWER HOLDING COMPANY OF NIGERIA PLC V OFFOELO (2014) 3 ACELR 1 at 19 (paras. 35-45); N.B.T.E V ANYANWU (2005) FWLR (PT.256) 1266 at 1284.

  1.             THE 3RD DEFENDANT’S REPLY ON LAW TO CLAIANT’S FINAL ADDRESS filed on 2nd August, 2018.

  1.             Counsel argued that on Issue 2 raised by the Claimant, the submission of counsel in paragraphs 2.13-2.16 is different from the evidence proffered by the Claimant under cross-examination. That the submissions therein contained are not borne out of the evidence on record before the Court and it is trite that address of counsel no matter how well thought out or written cannot replace evidence before the Court. Shuaibu v Muazu (2014) 8NWLR (Pt.1409) page 207 at 302 paragraph E; Obidike v State (2014) IONWLR (Pt.1414) page 53 at 77 paragraph D; Okuleye v Adesanya (2014) 12 NWLR (Pt. 1422) page 521 at 538.

 

  1.             It is counsel’s submission that the Claimant gave evidence in chief and reiterated under Cross-examination that he became aware of the purpose of the meeting when he appeared before the investigative panel on 18th August, 2005, and yet under the fire of cross examination he admitted that he attended the hearing severally after that date and that he was given sufficient opportunity to answer the questions posed to him and that he also never asked for more time to proffer additional testimony or bring further documents in his defence. Therefore, that the claimant cannot be heard to claim he had no opportunity to prepare a defence. Adebayo v A.G. Ogun State (2008) LPELR-80 SC 23; (2008) 7 NWLR (Pt.1085) 201 at page 221-222 paragraph G-H, per Tobi, JSC.

 

  1.             Counsel contended that the Claimant proffered no defence on his behalf, perhaps, because he had none, and is now claiming that he was not given opportunity. He submitted that the records before this Court prove otherwise, urging the Court to so hold. Nwaigwe & Ors v. Anyanwu (2016) LPELR-40613(CA), per Mbaba, JCA.

 

  1.             Counsel further posited that one cannot complain of denial of fair hearing, when he aborted every opportunity given to him to state his case or to be heard. Kaduna Textiles Ltd Vs. Umar (1994)1 NWLR (Pt.319) 143 at 159.

 

  1. He submitted that there is nowhere in the entire complaint where the Claimant denied the findings as contained in Exhibit C13, hence an admission of the commission of serious misconduct under Section 4 of the Federal Government Public Service Rules (FGPSR) Article 04401 (I and xii).

  1. Counsel argued that the submissions on behalf of the Claimant in paragraph 2.30-2.36 is inapposite to the issues germane to this case, as it is trite that authorities are good for what they are decided upon and since no two cases are the same, authorities relied on by counsel should be apt and represent the facts peculiar to his case. Labour Party v. I.N.E.C (2009) 6NWLR (Pt. 1137) Page 315 at 339 Para D – E; Chevron (NIG) LTD v. Imo State House of Assembly & ORS (2016) LPELR-41563(CA).

 

Court’s Decision

 

  1. I have carefully summarized the evidence of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submissions are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the Claimant is entitled to the reliefs he is claiming.

  1. Before I address the merits of the claimant’s case, the Law requires that the issue of jurisdiction be firstly determined. See UMAR ADAMU KATSAYAN V. SANI SA’IDU FAGO – (2011) LPELR-8818 (CA) Where the Court of Appeal held that: –  “Where a Court’s jurisdiction is challenged, it is usually better to settle the issue one way or the other before proceeding to hearing of the case on the merits – see First Bank V. T.S.A. Ind. (2010) LPELR-SC. 316/2006.” Per AUGIE, J.C.A (P. 20, paras. E-F). As “Jurisdiction of a court is the lifeline of an action; if a court lacks jurisdiction, it automatically lacks the necessary competence to try the case”. See HALLMARK BANK PLC v. OBASANJO (2014) 4 NWLR (PT. 1397) 209 C.A. @ 212, ACHEBE v. NWOSU (2003) 7 NWLR (PT. 818) 103.

 

  1. The  2nd Defendant/Applicant objection is that the suit as constituted and conceived is incompetent, this Honourable Court lacks the requisite jurisdiction to hear and adjudicate on same and accordingly the suit should be struck out: – Firstly because, they contend that the Federal High Court Abuja, lacked the requisite jurisdiction to transfer this suit to the National Industrial Court Abuja Division as at October, 2007 in that as at the time the Claimant initiated his suit at the Federal High Court, the suit is not only Statute barred by virtue of the provisions of Section 2 (a) of the Public Officers Protection Act but also the Federal High Court lacked the Jurisdiction to entertain the matter by virtue of the obvious Provisions of Section 11 of the then National Industrial Court Act 2006.

  1. Arguing that the proper order to be made by the Federal High Court was to strike out the matter ab initio and not to transfer same, relying on. Ajayi vs. Adebiyi (Supra).

That this Honourable Court has the inherent power to set aside the order of transfer made by the Federal High Court, since the said order was made in excess of its jurisdiction. A-G Anambra State Vs. Okafor supra; AUTO MOTOR EXPORT VSADEBAYO(Supra) and MADUKOLU & ORS VS NKEMDILIM (1962)

  1. The 2nd Defendant argued further that the Claimant was served with dismissal letter on the 9th of February, 2005, he initiated this suit at the Federal High in October 2007, over 2 years from the date the cause of action arose, therefore, that the Claimant’s suit is statute barred by virtue of Section 2(a) of the Public Officer (Protection) Act. INEC VS OGBADIB LOCAL GOVERNMENT & ORS (2015) LPELR — 24839 (SC), per Galadima, J.S.C. at PP. 29-30 paragraphs F-A; IBRAHIM VS LAWAL (2015) LPERL -24736 (SC), per Okoro J.S.C. The 4th Defendant aligned with this objection.

  1. The Claimant on the other hand submitted that the issue now for determination is whether this honorable Court, this court can entertain 2nd Defendant objection. To the Claimant this objection is academic and a waste of time especially as once a trial court delivers a ruling or judgment in a suit, it becomes functus officio with respect to the issue or suit. The 4th Defendant and the others, having not appealed against the ruling of this court on the 13th July, 2017, are estopped from raising the same issue as there has to be an end to litigation.

  1. Furthermore, the Federal High Court, the National Industrial Court are all courts of co-ordinate jurisdiction, of equal status, authority and power. NWAGWU V. UKACHUKWU (Supra); AGI3ALANYA V BELLO (Supra) and the National Industrial Court, a court of coordinate jurisdiction with the Federal High Court cannot sit on appeal over the decision of the Federal High Court, urging the court to dismiss this objection as an abuse of court process. On what constitutes abuse of court process, counsel cited the case of R-BENKAY NIGERIA LTD. V CADBURY NIG. LTD. (Supra). Arguing furthermore that the law is strict in relation to labour related matters filed in the High Courts and the duty of the High Courts including the Federal High Court where that occurs. JOHN V IGBO-EKITI LGA (Supra)

 

  1. First of all, it is well settled that when considering the date a case was initiated in cases that start denovo, the date of reckoning is the date the case was first intiated with previous court and not the date of transfer to the new court. See Kajang vs. National Agency for the Control of Aids (NACA) – Unreported NIC/230/2012

  1. Now the position of the law with respect to the issue of the transfer of matters between courts of coordinate jurisdiction has been well settled as follows. In IKEME v. VC, UNIVERSITY OF NIG. & ORS. (2014) 40 NLLR (PT. 123) 466 NIC @ 470 this court held “by virtue of Order 28 Rule 3 of the National Industrial Court Rules, 2007, any suit/cause/matter transferred to the National Industrial Court from the Federal High Court, the High Court of a State or the Federal Capital Territory, Abuja, the suit so transferred shall be treated as if it had been originally filed in any of the appropriate Rules of this Court…”. The Learned authors Offornze D. Amucheazi and Paul U. Abba in their book “THE NATIONAL INDUSTRIAL COURT OF NIGERIA – LAW, PRACTICE and PROCEDURE.” had this to state in respect of Transfer of Cases Between the NIC and the High Courts –

“As a general rule, where a court finds that it lacks jurisdiction to entertain a matter, the appropriate order to make is an order of striking out of the action, and the court cannot transfer the case to a court with appropriate jurisdiction to entertain the claim. UDO v. AKPAN (2010) 8 NWLR (PT. 1195) 196; LADIMEJI v. SALAMI (1998) 5 NWLR (PT. 548) 1. However, this established principle of common law only holds sway in the absence of an express statutory provision empowering the court to transfer a case over which it lacks jurisdiction. Sec. 22 of the Federal High Court Act.”

(i)                 “A similar power of transfer is vested in the NIC by Sec. 24 (2) of the NIC Act, 2006 which empowers the NIC to transfer any matter brought before it over which it lacks jurisdiction to the appropriate Federal or State High Courts for adjudication…The word “shall” used in the Section connotes a mandatory provision which must be complied with by the judge or panel of judges of the NIC before which the matter is brought. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA v. MINISTER OF FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2009) 14 NLLR (PT. 39) 372”.

 

  1. Similarly the learned author BAMIDELE ATIRU his book  “LAW AND PRACTICE OF THE NATIONAL INDUSTRIAL COURT”, 1st Edition, Page 156 @ 157 –stated

“Matters wrongly filed in the court where it lacks jurisdiction are not to be struck out on that ground alone. Sec. 24 (2) of the NIC Act provides that such matters should be transferred to the appropriate court in accordance with the rules of the court. AUTO BIKE OWNERS ASSOCIATION OF NIGERIA (AOWAN) EBONYI STATE v. THREE WHEELERS (KEKE) OWNERS AND RIDERS ASSOCIATION OF NIGERIA, (unreported) SUIT NO: NIC/EN/19/2010 delivered on 17th February, 2012.”

“ORDER 28 RULE 1 of the NATIONAL INDUSTRIAL COURT RULES, 2007 provides that where the court has directed that any cause or matter be transferred to the Federal High Court, the High Court of a State or of the Federal Capital Territory, ‘the court shall make an order under the hand of the President of the court, Presiding Judge or by another Judge to that effect and shall specify in that order the High Court to which the cause or matter is transferred’.

See also ABOLASE & ORS. v.  MESSRS CHEVRON NIGERIA LTD. & NAOR. (2014) 46 NLLR (PT. 150) 624 NIC @ 630

  1. Now, the Third Alteration Act, 2010 gives exclusive jurisdiction over employment matters to the National Industrial Court. From the commencement date of 4th March, 2011, the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja ceased to have jurisdiction over such matters. The court of Appeal in ECHELUNKWO JOHN O. & 90 ORS. v. IGBO-ETITI LOCAL GOVERNMENT AREA APPEAL NO. CA/E/26/2011 delivered on 10th December, 2012 @ Pp. 8 & 12; ECHELUNKWO JOHN O. & 90 ORS. v. IGBO-ETITI LOCAL GOVERNMENT AREA (2013) 34 NLLR (PT. 99) 202 had held on the legal implications and purpose of Sec. 24 (3) of the National Industrial Court Act, 2006 : –

(i)                 “It appears to me as was also observed by learned Counsel to both parties in this appeal, that Sec. 24 (3) of the NIC Act, 2006 is divided into two parts. The first part states clearly and unequivocally that notwithstanding anything to the contrary in any enactment or law, no cause or matter SHALL be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate court in which it ought to have been brought. The clear or ordinary meaning of this first part is to save all suits filed in the Federal, State and Federal Capital Territory High Courts which ordinarily ought to have been filed at the National Industrial Court……”

(ii)               Before I end this judgment, I wish to observe and agree with learned counsel for the Appellant that Sec. 24 (3) of the NIC Act, 2006 was not made for the fun of it. It has a purpose to serve. Following the enactment of the Constitution (Third Alteration) Act, 2010 which gave exclusive jurisdiction to the National Industrial Court on Labour matters, both State and Federal High Courts including that of the Federal Capital Territory, Abuja ceased to have jurisdiction in those matters pending before them. If they are struck out and there is need to file them afresh, some of them may be caught by statute of limitation and the plaintiffs in such situation, without no fault of theirs, would suffer grave injustice. It became necessary to make such provisions as Sec. 24 (3) of the NIC Act, 2006 in order to preserve such suits and be transferred to the National Industrial Court for proper adjudication.” Per John Okoro, JCA in ECHELUNKWO JOHN O. & 90 ORS. v. IGBO-ETITI LOCAL GOVERNMENT AREA ….

See also SEGUN ADEGOKE v. HITECH INDUSTRIES (UNREPORTED) SUIT NO. NIC/LA/338/12 delivered on 23/4/2013.

  1. In fact the position of the law is that by the provision of Sec. 23 (4) of the National Industrial Court Act, 2006, every Order of transfer made by the High Court’s pursuant to subsections (2) and (3) shall operate as a stay of proceedings and shall not be subject to appeal. EJA-OSANG v. CRUTECH & ORS. (2014) 45 NLLR (PT. 145) 547
  2. I resolve this issue against the 2nd Defendant.
  3. The 2nd flank of the 2nd Defendant’s objection is with regard to this matter being statute barred by virtue of Section 2 Public Officers Protection Act 2004, the claimant rightly noted that this court had ruled on this matter on the 13th July, 2017. Where this court declined to sit in judgement over the decision of the Federal high Court and held “that the issues of statute bar, cause of action and abuse of court process had all been pronounced upon by the Federal High Court. (In this suit prior to the transfer to NICN) and  considering the position of the law that “When a trial is starting de novo it does not mean that processes already filed would be filed afresh. De novo means starting the hearing afresh. All other processes filed remain valid. Orders can only be challenged on Appeal to a higher court, i.e. The Court of Appeal”. EYO Vs. EPENYONG [2011] LPELR 4549 CA (P7, para B-D) Ndukwe –Anyanwu J.C.A. I find that the 2nd Defendant has not raised any rationale for this court to depart from this position. I resolve this issue also against the 2nd Defendant.

  1. From the foregoing I find that the 2nd Defendants preliminary objection lacks merit and it hereby dismissed.

  1. I shall also, at this stage address the contention of the 5th defendant, as to the necessity of maintaining the 5th defendant in this suit. The 5th defendant in this suit is the Attorney General of the Federation and  this court has determined in the unreported case SUIT NO: NICN/CA/33/2014 PROF. NWACHUKWU SYLVANUS IWE Vs. UNIVERSITY OF CALABAR delivered on 16th  December 2014 and 3 Others that ‘the Attorney general of the Federation can be sued as a defendant in all matters in which a claim can properly be made against the Federal Government or any of its authorized agencies arising from any act or omission complained of’ following the pronouncement of Bada JCA in AG FEDERATION Vs> A.G  BENDEL [2007] 12 NWLR (Pt.36) at P 448. Also see FAAN Vs. BI COURTNEY LTD & ANOR [2011] LPELR 19742 CA. Hence the position of the court remains that the 3rd defendant is a proper party.  See SUIT NO: NICN/ABJ/215/2013ETIM SAMUEL Vs. THE NIGERIA ARMY & 2ORS delivered 20th June 2017. See also the following NICN/IB/22/2013 MR. S. A. ADENUGA VS UCI & BM 4 & ORS (Unrepeated) delivered on 6th March 2014. Where it was held thus.” The pre-eminent and incontestable position of the Attorney-General, under the common law, as the Chief Law Officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature. The Attorney-General has, at common law, been a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.” Per Aniagolu, J.S.C (Pp. 18-19, paras. E-E)  EZOMO V. ATTORNEY-GENERAL, BENDEL STATE (1986) LPELR-1215(SC).

  1. “As rightly submitted by the appellant’s counsel, the offices of the President of the Federation and Attorney General of the Federation are creations of the Constitution under Sections 130 and 150 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The President is the Head of State, the Chief Executive and Commander-in-Chief of the Armed Forces of the Federation. It is correct that the Constitution provides separately under Sections 2 and 130 of the Constitution, the Federation known as the Federal Republic of Nigeria and the office of the President of the Federation. It is also correct that the Federation known as the Federal Republic of Nigeria is a distinct and separate entity from the office of the President of the Federal Republic of Nigeria. However, whatever functions or duty or power the President performs or exercises as conferred on him by the Constitution or any other Statute or Act of the National Assembly is a public power vested in him as an agent of the Federal Republic of Nigeria and which he exercises for the purpose of good governance in Nigeria.

  1. The Attorney General of the Federation as the Chief Law Officer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, Statutes and other Laws of the Federation. See A. G. OF THE FEDERATION V. A. N. P. P. (2003) 18 NWLR (PT. 851) 182. It is clear from the authorities that the Attorney General being the Chief Law Officer of the Federation is the proper party to be sued in any action against the Federal Government, the Federation of Nigeria or any of its agencies which impliedly includes the President of the Federation who exercise the powers vested in him by the Constitution for and on behalf of the Federal Republic of Nigeria. See FEDERAL AIRPORT AUTHORITY OF NIGERIA V. BI-COURTNEY LTD & ANOR. (2011) LPELR – 19742 (CA). In A.G KANO STATE V. A. G. FED. (2007) 6 NWLR (PT. 1029) 164 AT 192 (B-C), the Supreme Court held as follows:

“It is not in dispute that the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of.”?

  1. In the light of the foregoing, I am of the firm view that any action against the President who exercises the power or authority conferred on him on behalf of the Federal Republic of Nigeria may be instituted against the Attorney General of the Federation. The President need not be a party to the action. The non-joinder of the President in this suit does not render the proceedings incompetent and does not rob the Court of its jurisdiction to entertain the action.” Per Bolaji Yusuff, J.C.A. (Pp. 19-23, Paras. D-B) . in line with the above authority I find that the claimant was well within his rights to bring this action in the manner in which he had done in this suit and that the Attorney General of the Federation is the proper party to be sued as 5th defendant n in this case. See the cases of IGWEGBE v. ANSELEM & ORS (2017) LPELR-42681(CA) EGBUCHULAM Vs. IMO STATE GOVERNMENT & ORS NICN/EN/67/2012 (unreported) delivered on 23rd October 2012. HON BARR NNAMDI ELUWA & ORS VS. UMUAHIA SOUTH LOCAL GOVERNMENT & ORS NICN/ EN/ 120/ 2013

Now to the merit of this matter.

  1. The issue for determination I have determined is whether the Claimant is entitled to the reliefs sought in this suit.

  1. The claimant’s reliefs are as follows.;-
  2. A declaration that the Proceedings and recommendations of the 3rd        Defendant in the course of its investigation of the income and expenditure of          the 1st Defendant, the regularization of Corps members and rationalization of     ranks of the 1st Defendant constitute a gross violation of the 1999 Constitution          of         the Federal Republic of Nigeria and all enabling laws there being no power in       the 2nd Defendant to undertake such investigation and not having been properly   constituted to law.

  1. A declaration that the said proceedings of the 3rd Defendant in so far as they        purport to indict the Plaintiff, constitute a violation of the Plaintiff’s        Fundamental Rights guaranteed under section 36 (1) of the 1999 constitution          and Articles 7 of the African Charter on Human and People’s Rights       (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria,     1990 and is therefore unconstitutional.

  1. A declaration that the purported dismissal of the Plaintiff by the 1st and 2nd         Defendants on the recommendation of the 3rd Defendant dated the 2nd of            February,         2005 without giving him a fair hearing constitutes a violation of the             Applicant’s Fundamental Rights guaranteed under section 36 of the 1999      constitution and Articles 7 of the African Charter on Human and People’s       Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of      Nigeria,       1990 and is therefore illegal, unconstitutional and of no effect.

  1. An order setting aside the Recommendations and or letter of recommendation of the         3rd Defendant’s Committee on Internal Affairs addressed to the 1st Defendants on the    30th day of December, 2005.

  1. An order setting aside the 3rd Defendant’ s Dismissal Notice dated 3rd     February,         2005 purporting to dismiss the Claimant from service.

  1. A declaration that the Claimant’s employment with the 2nd Defendant is still        subsisting.

  1. An order that the Claimant’s be promoted to the Rank of Deputy Commandant     General and restoring all his privileges and entitlements to.

  1. An Order that the Claimant be paid his outstanding salaries, allowances, and          all        other benefits commencing from the 1st day of January till date of     judgment.

  1. In order to properly determine the Claimant’s claim the law requires that the court make a finding as to the nature of the Claimant’s employment and the law recognizes three types of employment: – The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment

  1. Purely Master and Servant relationship
  2. Servants who hold their office at the pleasure of the employer
  3. Employment with statutory flavour….”

  1. Now the Claimant had in paragraph 9 of his Statement of Fact pleaded that his employment was one with statutory flavor which cannot be terminated without recourse to the manner prescribed by the statute which in his case he contended were the Public Service Rules.  The defendants pleaded the contrary in fact the 4th defendant in their Statement of Defence omitted to respond to the said paragraph 9, while admitting paragraph 8 and denying paragraph 10. The 5th defendant denied the claimants averment in their paragraph 1 of their Statement of Defence, as did the 3rd defendant in their paragraph 3 of the 3rd Defendant’s Statement of Defence.

 

  1. The position of the law is as was stated in UNION BANK OF NIGERIA PLC v. EMMANUEL ADEREWAJU SOARES – (2012) LPELR-8018(CA), that “An employment is said to have a statutory flavor when the appointment and termination of same are governed by statute. And in DR. S.A.O. ADEGOKE v. OSUN STATE COLLEGE OF EDUCATION (2010) LPELR-3601(CA), it was held thus; – “The term “statutory flavour” simply means “covered by statute”. Thus, an employment will be taken as enjoying statutory flavour when it is covered or governed by statutory provisions in every material particular as to appointment of the employee, termination or dismissal and other sundry conditions. “Per ALAGOA, J.C.A. (P. 13, paras. F-G)

  1. An employment could have statutory flavour also where a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C

  1. In SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA  Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of  appointment  referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20.

  1. In determining whether the Respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contents of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B.

 

  1. The Claimant in making his case pleaded that his appointment with the 2nd Defendant was by virtue of a letter dated 22nd May 1998 and titled “Warrant of Promotion” Exhibit C3 and that his appointment came in to being after he had been recruited, and trained with other officers of the 2nd Defendant at the Kaduna State Command of the Cops.

  1. The said warrant of promotion is hereby reproduced hereunder: –

Exhibit C3

NIGERIA SECURITY & CIVIL DEFENCE CORPS

KADUNA STATE COMMAND

________________________

_______________________

  1. O. BIX 1488 KADUNA

Ref FMIA /NSCD/2.1/2.1988

JAMES BASSEY

Kaduna State Command

Dear Sir,

WARRANT OF PROMOTION

By the recommendation of the State Commandant and the approval of the

Commandant General. I am pleased to inform you that you have been promoted to the Rank of ________A C__________ on a probationary period of one Calendar year with effect from 22nd May 1998.

You will continue your service in the Kaduna state command of the Corps.

The Corps and the Federal Ministry of Internal Affairs do hope that your faithfulness

to the Corps with particular reference to your Oath of Allegiance and your loyalty to

the nation in the general will justify that this decision is well placed.

Yours in the National Service

(Signed)

Chief Abiodun Sandey Phd., LLb., FICD., JP.

  1. The enabling Act of the 2nd defendants ;  the NIGERIA SECURITY AND CIVIL DEFENCE, CORPS ACT,2003 (as amended in 2007) provides-

There is established the Nigeria Security and Civil Defence Corps (in this Act referred to as “the Corps)”, which shall consist of such number of volunteers and regular members as may, from time to time, be recruited under the provisions of this Act.

  1. The Corps

(a)    shall be a body corporate with perpetual succession and a common seal;

(b)   may sue and be sued in its corporate name; and

(c)    shall have its headquarters in the Federal Capital Territory, Ahuja.

(1) The Immigration and Prisons Services Board established under the Immigration and Prisons Services Board Act 1986, as amended, shall be the Governing Board of the Corps and shall, subject to this Act, have general control of the Corps.

  1. The Act went on in Section to provide for the powers of the Board

(1) The Board shall be responsible for

  1. providing the general policies and guidelines relating to major expansion programmes of the Corps;
  2. the overall management and general administration of the Corps;
  3. recruiting volunteers and regular members of the Corps;
  4. organizing basic development and refresher courses for members of the Corps; and
  5. fixing, with the approval of the Minister, the terms and conditions of service of members and employees of the Corps, including their remuneration.
  6. And in Section 5; –

(I) The Corps shall consist of such number of volunteers and regular members as may, from time to time, be recruited by the Board to meet the requirements of the Corps.

(2) Members of the Corps shall be made up of such officers and other ranks as the Board may, from time to time, determine.

  1. Section 6 and 7 go on to provide for the establishment of Zonal and  State commands and  in Sections 8 and 9 thus:-

8 (1) There shall be for the Corps a Commandant-General who shall be appointed by the President, on the recommendation of the Minister.

(2) The Commandant-General shall hold office

(a)    for a term of five years in the first instance and may be re-appointed for a further term of five years and no more; and

(b)   on such terms and conditions as may be specified in his letter of appointment.

  1. 9 (1) The Board shall appoint for the Corps such number of Deputy Commandants-General, Assistant Commandants-General, Commandants and such officers and other ranks and employees as it may, from time to time, deem necessary for the purposes of the Corps.

(2) The terms and conditions of service (including remuneration, allowances, benefits and pensions) of regular members and employees of the Corps shall be as determined by the Board using same criteria as Immigration and Prisons Services with the approval of the Minister.

(3) The volunteers for the Corps shall, for any period they are on duty for the Corps, be paid such allowances and other benefits as may be approved by the Minister,

  1. Section 19 deals with discipline of Corp members
  2. A Corps member who,
  3. performs his duties in contravention of the objects of the Corps, (b) takes part in any subversive activity, including mutiny and disturbance of public peace; (c) abets, incites, conceals or condones the commission of any offence, (d) takes part in an illegal assembly of persons with intention to breach public peace, destroy property or assault any person or group of persons, (e) having knowledge that an offence or any illegal act is about to be committed, fails to inform his superior officer; (f) takes part in a strike, and (g) offers violent assault on his superior officer, commits an offence and is liable on conviction to imprisonment for a term of not less than one year.

  1. Now Section 26 provides that

26 (I) The body known as the Security Civil Defence Corps (in this section referred to as the “Dissolved Corps”) existing before the commencement of this Bill is dissolved.

(2) Accordingly, there shall be vested in the Corps immediately at the commencement of this Act and without further assurance, all assets funds, resources and other movable or immovable property which immediately before the commencement of this Act were in the Dissolved Corps.

(3) As from the commencement of this Act

(a)    all rights, interests, obligations and liabilities of the Dissolved Corps existing immediately before the commencement of this Act under any contract or instrument, or at law or in equity, shall by virtue of this Act be assigned to and vested in the Corps;

(b)   Any contract or instrument as mentioned in paragraph (a) of this subsection shall he of the same force and effect against or in favour of the Corps and shall be enforceable as fully and effectively as if, instead of the Dissolved corps, the corps had been named therein or had been a party thereto; and

(c)    the Corps shall be subject to all obligations and liabilities to which the Dissolved Corps was subject immediately before the commencement of this Act, and all other persons shall, as from the commencement of this Act have the same rights, power and remedies against the Corps as they had against the Dissolved Corps immediately before the commencement of this Act.

(4)        A proceeding or cause of action pending or existing immediately before the          commencement of this Act by or against the Dissolved Corps in respect of any right,   interest, obligations or liability of the Dissolved Corps may be commenced, continued       or enforced by or against the Corps as if this Act has not been made.

(5)        Notwithstanding the provisions of this Act, but subject to such directions as may be         issued by the Corps, a person who immediately before the commencement of this Act           was a volunteer or regular member of or held office in the Dissolved Corps shall be      deemed to have been transferred to the Corps on terms and conditions not less favourable than those obtaining immediately before the commencement of this Act,     and service in the Dissolved Corps shall be deemed to be service in the Corps for   purposes of pension.

(6)        All regular officers of the Corps before dissolution shall retain their ranks and           positions immediately this Act takes effect.

  1. From the foregoing I am fully satisfied that the Claimant employment is one of Statutory flavour governed by the enabling law.

  1. In the case of NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) It was held thus: – “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. Also in the case of UNIVERSITY OF ILORIN V. ABE (2003) FWLR (Pt. 164) 267 at 278, this Court held: “It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.”

 

  1. The above was followed in the case of NEW NIGERIA NEWSPAPERS LTD V. ATOYEBI (2013) LPELR-21489 (CA) where we said this of employment with statutory flavour:”In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…” See also OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 773 at 787, OLORUNTOBA OJU V. ABDULRAHEEM (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.” Per Mbaba, J.C.A. (pp. 16-18, PARAS. G-C)

  1. The Claimant maintains that before he could be dismissed the provisions of the Public Service Rules must have been strictly complied with. Particularly Rules 04303-04306.

  1. With regard to the Public Service Rules, this court has held in STEPHEN IMUZEI AKHIOJEMI Vs. ADMINISTRATIVE STAFF COLLEGE OF NIGERIA NICN/LA/426/2012 delivered 21st January 2014, and TITILAYO ADERIGBE Vs. NISER NICN/IB/54/2013 Delivered 14th March 2014 held that the erstwhile Civil Service Rules were the precursor of the current Public Service Rules. And this is how various Courts have described the Civil Service Rules, from which the Public Service Rules took over. By FCSC V. LAOYE [1989] 2 NWLR (Pt. 106) 652 SC, although the Civil Service Rules were made before the 1979 Constitution, they, however, took effect by virtue of section 274 of the 1979 Constitution with necessary modifications. And by IDERIMA V. RSCSC [2005] 16 NWLR (Pt. 951) 378, the Civil Service Rules of the Federal Public Service governs the conditions of service of Federal Public Servants and they are made pursuant to the powers conferred by the Constitution. The Rules, therefore, have constitutional force and they invest the public servant, over whom they prevail, a legal status, which place their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. What this means is that a fortiori the Public Service Rules are a product of the Constitution and so have constitutional force.

  1. The NIGERIA SECURITY AND CIVIL DEFENCE, CORPS ACT, 2003 (as amended in 2007)  empowers the Governing Board to make regulations in respect of the terms and condition of the members of the corps and employees See Section 4(1) (e).  the Claimant has not presented this court with any condition of Service between himself and the 2nd Defendant neither have the Defendants but even if they had case law has established that the Public service rules be read to supersede the conditions of service of the (1st ) defendant See STEPHEN IMUZEI AKHIOJEMI & ANOR VS  ADMINISTRATIVE STAFF COLLEGE OF NIGERIA (Supra)

  1. I find and hold that the Claimant’s appointment is one of statutory flavour and the Public Service Rules of 2000 are applicable to him, considering the Supreme Court decision in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496; [2011] 2 – 3 SC (Pt. 1) 46 following  Osakue v. Federal College of Education, Asaba [2010] NWLR (Pt. 1201) 1, to the effect that the law for determining the cause of action is the law as the time  the cause of action arose.

  1. The Claimant in relief 1. Is asking the court to make a declaration as to the constitutionality of the 3rd defendants  investigation, Proceedings and recommendations  and the  power and propriety of the 2nd Defendant undertaking such an investigation

  1. In reliefs 2. and 3. The Claimant is seeking a declaration that the 3rd Defendants proceedings and the letter of dismissal, without giving him a fair hearing, violated his Fundamental Rights guaranteed under section 36 (1) of the 1999 Constitution and Articles 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria, 1990 and is therefore unconstitutional.

  1. Reliefs 4 and 5 are for orders setting aside 3rd Defendant’s recommendations and the Dismissal Notice. Reliefs 6, is for a declaration that the Claimant’s employment is still subsisting. While Relief 7 and 8 are for Orders that the Claimant be promoted to the Rank of Deputy Commandant General and restoring all his privileges and entitlements paid be his outstanding salaries, allowances, and all other benefits.

  1. The Claimant has presented Exhibit C5

CIVIL DEFENCE, IMMIGRATION & PRISON SERVICE BOAED

FEDERAL MINISTRY OF INTERNAL AFFAIRS

DIRECTOR/SECRETARY OFFICE

Gwagwalada P .M .B . 95 Garki Abuja.

RCDIPB/NSCDC/Vol.1/19

2nd February 2005

Bassey James Asanye

Commandant (CC)

ufs: Commandant General

Nigerian Security and Civil Defence Corps

National Headquarters

Wuse Zone .

Abuja.

NOTICE OF DISMISSAL

            Consequent upon the investigation of the House Committee on Internal Affairs into the Income and Expenditure as well as the Regularization of corps members and Rationalization of ranks of the Nigerian Security and Civil Defence Corps (NSCDC) I write to inform you that approval has been given for your immediate dismissal from the service of Nigerian Security and Civil Defence Corps for perpetuating acts of corruption. Undue influence in running down the Civil Defence Corps and gross misconduct which according to the PRS 04406 attracts dismissal from the service.

  1. Please ensure that your schedule of duty and any other government property in your possession are properly handed over to the Commandant General or his duly authorized representative before you finally disengage from service.

  1. We wish you good luck in your future endeavours.

(Signed)

  1. B. Makkan

Director /Secretary

  1. Exhibit C5 refers to the result of investigation of the National Assembly as the rational and reason and that the conduct by Rule 04406 of the PSR attracts dismissal. The 3rd defendant during adumbration of their final address had argued that as of the date of the Committee hearings the claimant had already been asked. The claimant had asked the court to discountenance the 3rd Defendant’s argument and the date issue

  1. But looking at Exhibit C6, the Minutes of the House Committtee shows that the meeeting which indicted the Claimant took place on the 28th August 2005 while the Notice of Dismissal was dated 2nd February 2005 and refers to the very same investigation. The Claimant received the said Exhibit C5 on the 9th February 2006 yet no explanation has been put forward.

  1. On face value it means that Exhibit C5, was made before the investigation it spouted was ever concluded. If the authors of Exhibit C5 are relying on the Investigation of the 3rd Defendant as the basis of their action in dismissing the Claimant. Now the only logical explanation would be that Exhibit C5 was back dated and in law a backdated dismissal letter is not effective. See SUIT NO. NICN/LA/181/2011 IKE EDWARD CHUKWUEMEKA V ENTERPRISE BANK LIMITED delivered on the 13th May 2013. Or the date on Exhibit C5 is an error but the 2nd Defendant did not present any witness or defence who could have been cross examined to enable the court make consider this conclusion. As it is the court is not permitted to speculate. See UNITY BANK PLC v. RAYBAM ENGINEERING LTD  (2017) LPELR-41622(CA) (P. 19, Paras. D-F). where Ogakwu, J.C.A of the Court of Appeal held “It does appear to me that the law has been firmly ensconced that a Court acts on the evidence before it and it is not in the place of a Court to speculate or make conjectures.”

  1. I shall come back to this.
  2. I find Exhibit C5 to be unreliable and of no moment.

Now Rule 04406 provides as follows; –

  1. The ultimate penalty for serious misconduct is dismissal…….

  1. The Claimant employment being one “with statutory backing must be terminated in the way and manner prescribed by the statute and any other manner inconsistent with the relevant statute is null and void and of no effect. FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 and UNION BANK OF NIGERIA LTD. v. CHUKWUETO CHARLES OGBONNA (1995) 2 NWLR (PT. 380) 647.

  1. And the Court of Appeal had in  YEMISI v. FIRS (2012) LPELR-7964(CA) looked into the provisions of Rule 04406 and held that “A careful examination of the relevant Public Service Rules reproduced above shows that the procedure for any disciplinary action against an officer, which is likely to lead to his dismissal, is in two stages. The first stage is the issuance of the query by the offending officer’s superior and a report by that superior officer to another officer superior to him. The second stage is that where the concerned officer’s reply to the query is not satisfactory and it is considered that the conduct complained of is such that could lead to dismissal, the procedure set out in Rule 04306 must be followed. Because of the serious nature of the penalty for the alleged misconduct, the Rules set out a detailed procedure that must be followed”.

  1. The rules governing Discipline under the Exhibit C4 are found in Section 3 and 4 dealing Misconduct and Serious Misconduct and the specifically applicable rules by virtue of Rule 030403 are 030303–030606

  1. 030401 which defines Serious Misconduct and goes on to list 19 other types of serious misconduct, including (e) Absence from duty without leave. Now 030402 stipulates/directs one to the procedure to be adopted in cases of serious misconduct. The procedure to be followed is found in Section 3, Rules 030301 the defines types of misconduct. By the disciplinary procedure to be adopted from 030302 which starts with issuing a query. The rules go on to set the format for the query and/or the preliminary letter and Sub (i) of 030302 require that the staff be notified in writing on the grounds for which he is to be disciplined and goes on to set out the condition of the query letter.

  1. Subs (b) and (c) make provision as to what should happen where the officer does not reply to a query the Superior officer either gives a letter of advice, where the officer has cleared himself  (b)  or if not exculpated, the rules requires that the 030304 are resorted to. And this Rule requires every officer to report an erring staff to a superior officer to that staff who shall immediately report the staff to the Commissioner, the Commissioner is charged with directing that action to be taken by the Permanent Secretary in line with 03306 and give direction to interdict if necessary or suspend under 03305. And by Rule 03303  the commissioner, or commission or tribunal or Administrative Panel, are required  not to act on the recommendation unless the staff had opportunity to respond to the allegation and if satisfied the panel shall take the necessary disciplinary action.

  1. There is nothing before the court to show that the Defendants followed the procedure laid down in the Public Service Rules. The law is that where allegations have made against an employee, the employer is entitled to set up a panel to investigate the allegations. Such an investigation panel is not a court of trial. It is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source. The panel of inquiry not being a court of trial, none of the persons whose name feature in the inquiry can insist on any right to cross-examine other person who make allegations or present memoranda at the inquiry. Once the panel concludes its inquiry and makes up its mind that any point had prima facie been made out which points to the fault of any person, the employer must first inform such an employee of the case against him and give him the opportunity to refute, explain or contradict it otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services. U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. BABA v. N.C.A.T.C. (1991) 5 NWLR (PT. 192) 388 referred to.] (P. 36, PARAS. C-G).

 

  1. Also see OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83, where it was held “In the observance of the principle of Natural Justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigating panel which has no statutory powers and the action on the recommendation by a statutory body with the requisite statutory powers. Whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated, the acting upon such recommendation does. Hence, the implementation of the recommendation by a statutory body must comply strictly with the rules of natural justice….”

  1. What this means is that, even if the court were to consider the proceedings of the 3rd defendant investigation committee the investigative panel of the defendants disciplinary procedure, and I shall come back to this. The law is that before implementing the recommendation of the 3rd Defendant the 2nd Defendant is required to give the claimant an opportunity to be heard before taking a decision.

  1. Furthermore, the Defendants have not shown the Court the authority under which the NASS can act as an administrative panel in the disciplinary proceedings of their staff particularly the claimant.

  1. From what is before the court, I find that the claimant was not afforded any such opportunity.

  1. The Claimant seeking a declaration on the one part as to the constitutionality of the 3rd Defendant’s investigation, proceedings and recommendations. And the propriety of the 2nd Defendant to conduct the investigation as it was done. In respect of the constitutionality of the 3rd Defendant’s investigation, proceedings and recommendations, the 3rd Defendant maintains that Section 88 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution), the 3rd Defendant is vested with the power to make laws, oversee, supervise, conduct investigation, expose corruption and act as checks and balances over any Ministry, Department and Agency of Government amongst which is the 1st and 2nd Defendants.

  1. Now Section 4 of the 1999 Constitution provides as follows; –

  1. 1. The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives. 2. The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. 3. The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. 4. In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:   a. any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and   b. any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution

  1. And Section 88(1) provides; –
  2. 1. Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed investigation into Legislative oversight of the executive
  3. any matter or thing with respect to which it has power to make laws; and   b. the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for  i. executing or administering laws enacted by National Assembly, and   ii. disbursing or administering moneys appropriated or to be appropriated by the National Assembly. 2. The powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to   a. make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and   b. expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.

  1. From the foregoing I find that although it is not in doubt that the 3rd Defendant has the constitutional mandate which includes investigation of the conduct of affairs of an agency of government in the manner in which such agencies manage appropriated funds, the power is limited to the 3rd Defendants core function which is to make and amend laws.  In that wise I do not see how the 3rd Defendant recommendation and instentence on a  staff dismissal can be considered actions in furtherance of enabling the 3rd Defendant make or correct laws. Furthermore not only have the 3rd Defendant not presented the court with any resolution published in its journal or any Official Gazette of the Government of the Federation directing the Claimants investigation, but more importantly nothing in the foregoing I find empowers the 3rd Defendant to direct and insist on the dismissal of the Claimant as they did on exhibit C6 I find and hold. The Legislature is not empowered under law to delve into the domestic employment relationships of any organization in the manner in which the 3rd Defendants have done. Especially as there is nothing in the 2nd Defendant’s enabling law or the Constitution that entitled the 3rd Defendant to recommend the dismissal of any staff.

  1. With regard to the power and propriety of the 2nd Defendant undertaking such an investigation. I had already found that the 2nd Defendant although empowered to set up an investigation panel under disciplinary procedures the investigation of the 3rd Defendant cannot approximate to the required or the requirement of Rule 0304 of the Public Service Rules. In paragraph 3 of Exhibit D3 dated 6th August 2005, addressed to the 2nd Defendant by the 3rd Defendants notifying them of the scheduled hearings of the investigation committee, it is stated that “You are therefore requested to ensure that there is meaningful attendance at the hearings by all appropriate Officers with sufficient knowledge in the regularization of Corps members, rationalization of ranks and financial management of the Corp since 2004 till date.  Under the Public Service rules an officer is entitled to be notified in writing to initiate the disciplinary measures afortori the series of opportunities to respond and review. I find that the investigation of the 3d Defendants as far as it portends to fulfill the requirements of the Public Service Rules is improper and contrary to the Public Service Rules. Inter alia. Relief 1 therefore succeeds in part.

  1. In reliefs 2. and 3, the Claimant is seeking a declaration that the 3rd Defendant’s proceedings and the letter of dismissal, without giving him a fair hearing, violated his Fundamental Rights guaranteed under section 36 (1) of the 1999 Constitution and Articles 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria, 1990 and is therefore unconstitutional.

  1. It is pertinent to point out that the  recent decision of the Supreme Court in REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410, where the Supreme Court, relying on BAKARE V. LSCSC [1992] 8 NWLR (PT. 266) 641 AT 699 – 700 and EKUNOLA V. CBN [2013] 15 NWLR (PT. 1377) 224 AT 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under Section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body.

  1. While I hold “that a careful reading of REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS. Supra will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under Section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims – audi alterem partem and nemo judex in causa sua”. The former relates to criminal trials in Courts of Tribunals whilst the latter is the yardstick of the domestic tribunals and administrative panels. I also find and hold that “The reliance by lawyers on Section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law.

  1. What that means is that any reference to Section 36 of the 1999 Constitution in respect to administrative procedures is misplaced as the yardstick in this area of Administrative Law is the common law rules of natural justice.

  1. In that respect the Claimant I find that in following the laid down procedure before issuing Exhibit C3 the Claimant was denied fair hearing before his right /employment was determined. Relief 2 and 3 succeed in part.

  1. Having determined that the claimant’s appointment had statutory flavour it follows that his dismissal must be in accordance with the laid down procedure. SEE E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION [2005] 7 SC (PT. III) 135 employment with statutory backing must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect. OKOCHA V. CSC, EDO STATE [2004] 3 NWLR (PT. 861) 582.  This finding means there was no dismissal at all since and everything the employer did is a nullity before the law and is hereby set aside. See BCC PLC V. AGER [2010] 9 NWLR (PT. 1199) 292.
  2. From the foregoing I find and hold that the issuance of exhibit C5 to the Claimant purporting to dismiss him is contrary to the provision of the law for the claimant and persons in his position and is therefore as per IDERIMA null and void. Reliefs 4. 5, 6 and 8 succeed.

  1. In relief 7, the Claimant is asking the court to order his promotion to the Rank of Deputy Commandant General, the claimant proceeded to list named colleague/contemporaries of his who had progressed over the years since his dismissal to this desired rank. The position in labour law is that a Claimant must build his case on his own right/entitlement, not on the right/entitlement of another and as such any evidence of the progress of a co-worker is irrelevant and of no issue except for a claim for unfair labour practice where comparison may be essential (which is not the case of the claimant in the instant case. See UNREPORTED SUIT NO. NICN/LA/308/2013SAMSON KEHINDE AKINDOYIN   VS. UNION BANK OF NIGERIA PLC delivered on 15th April 2015.
  2. Furthermore, generally there exists in principle is the policy of non-interference with the internal administration of employer. The Supreme Court in SHELL PET. DEV. CO. V. NWAKA [2001] 10 NWLR (PT. 720) 64 held it to be invidious for the Court to foist on an employer a person who should occupy a particular position; right to promote an employee to a higher grade, (but is this a right of the employer or that of the employee – or, in either case, is it actually a right or a privilege? The case of ABENGA V. BENUE JUDICIAL SERVICE COMMISSION [2006] 14 NWLR (PT. 1000) 610 held that promotion of an employee is neither automatic nor as of right, as such the court will not grant such a relief. Unless where the Claimant has proved he was vindictively denied it. See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [2013] 35 NLLR (PT. 103) 40 NIC and MR EMMANUEL A. IDONIJE V. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY UNREPORTED SUIT NO. NICN/LA/303/2014 and that is not the claimant case in this suit. Relief 7 therefore fails.

  1. All in all, the claimant case succeeds but only thus far; –
  2. It is hereby declared that the 2nd Defendant lacks the power to undertake an         investigation in the manner of the 3rd Defendant in the course of its investigation   of         the income and expenditure of the 1st Defendant, the regularization of Corps          members and rationalization of ranks of the 1st

  1. It is hereby declared that the said proceedings of the 3rd Defendant in so far as     they purport to indict the Claimant, constitutes a violation of the Claimants       employment and is contrary to the Public Service Rules and the 1999 Constitution.
  2. It is hereby declared that the purported dismissal of the Claimant by the 1st and    2nd Defendants on the recommendation of the 3rd Defendant dated the 2nd of      February, 2005 without giving him a fair hearing is illegal, unconstitutional null      and void and of no effect.

  1. By order of this Court the Recommendations and the letter of recommendation     of         the 3rd Defendant’s Committee on Internal Affairs addressed to the 1st           Defendants on the 30th day of December, 2005, as it relates to the Claimant is   hereby set aside.

  1. By order of this Court the 3rd Defendant’ s Dismissal Notice dated 3rd February,             2005 purporting to dismiss the Claimant from service is hereby set aside

  1. It is hereby declared the Claimant’s employment with the 2nd Defendant is still    subsisting.

  1. It is hereby ordered that the Claimant be paid all his outstanding salaries,   allowances, and all other benefits from the date of his illegal dismissal.

  1. This is the Court’s Judgement and it is hereby entered.

…………………………………..

HON. JUSTICE E. N. AGBAKOBA

Judge.

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