Comrade Razaq O. Lawal VS Nigerian Union of Local

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

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

Dated this 28^th day of January, 2019

SUIT NO: NICN/ABJ/34/2016

BETWEEN:

Comrade Razaq O. Lawal

Applicant

And

Nigerian Union of Local Government
Comrade Ibrahim Khaleel
Comrade Joshua Irapakob

.Respondents

Representations:

Olalekan Tani for the Claimant

V.A. Ofikwu for the Defendants

Judgment.

This suit was originally commenced by a motion ex-parte filed on the 27^th of January, 2016. The said motion which was brought pursuant to Order IV Rule 3 (IV) and (V) of the Fundamental Rights (Enforcement Procedure) Rules 2009 was moved before the President of this Court, Hon. Justice B.A. Adejumo who delivered ruling of same on the 3^rd of February, 2016. Arising from the Ruling, My Lord, The Honourable President, assumed jurisdiction to hear the motion on notice for the enforcement of fundamental right which was filed along with the motion exparte.

Before the hearing of the said motion, this suit was re-assigned to this court sometime in October, 2017. Upon the commencement of the matter in this court, parties took several adjournments in attempt to settle but same failed. Consequently, parties proceeded with the adoption of the processes relating to the fundamental right enforcement.

I must mention that Counsel to the Applicant duly informed the court in the process of adoption that he was adopting an Originating Summons filed on the 27^th of January, 2016 which in actual fact was a Motion on Notice. The said motion on notice was filed on the 27^th of January, 2016 and brought pursuant to section 254C (1) (d) of the Constitution (Third Alteration) Act. 2010, Act No.3; Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and under the Inherent Jurisdiction of this Honourable Court.

The said motion is seeking for the following reliefs:

A DECLARATION that the failure of Offune led Committee (Staff Screening/Verification Committee). Staff Reorganization Committee. National Executive Council (NEC) and the Staff and Establishment Committee being bodies set up by the 1^stRespondent and/or 1^stRespondents organ(s) to hear the Applicant in the course of their investigation, deliberation, consideration, verification and screening violates the Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, unlawful, illegal, null and void.
A DECLARATION that the membership of Comrade Patrick lgwe and Comrade Bulama Modu Fantami of the Staff Reorganization Committee and Staff and Establishment Committee, being investigative anddisciplinary committees respectively, is an affront to the Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, unlawful, illegal, null and void and the proceedings, decisions, deliberations, studies, detection, reports, query, recommendations, result disciplinary action, interdiction/suspension letter dated 21^st January, 2016 or otherwise howsoever are to that extent of no effect.
A DECLARATION that the entire proceedings, decisions, deliberations, studies, detection, reports, query, recommendations, result, disciplinary action, interdiction/suspension letter dated 21^stJanuary, 2016 or otherwise howsoever that arose from the activities of Offune led Committee (Staff Screening/ Verification Committee), Staff Reorganization Committee, National Executive Council (NEC) and the Staff and Establishment Committee in respect of Omime Olore Margaret’s matter of employment concerning the Applicant are unconstitutional, unlawful, illegal, null and void and of no effect having being acts done in violation of Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
A DECLARATION that the Applicant has been subjected to acts of intimidation, mental torture and inhuman and degrading treatment by the Respondents in the course of their requesting the Applicant to appear before 1^stRespondent’s committees without considering the Applicant’s physical, safety and health interest through oppressively hurried/hasty request for Applicant’s appearance before 1^stRespondent’s committees.
AN ORDER of this Honourable Court setting aside the entire proceedings, decisions, deliberations, studies, detection, reports, query, recommendations, result, disciplinary action and/or interdiction/suspension letter dated 21^stJanuary, 2016 for being unconstitutional, unlawful, illegal, null and void and of no effect whatsoever.
Damages in the sum of N5, 000, 000. 00 (Five Million Naira) only for intimidation, harassment, oppression and careless violation of Applicant’s fundamental rights.

The motion was supported by an Applicant’s statement, a 54 paragraphed affidavit deposed to by Razaq O. Lawal and a written address. The affidavit had 9 exhibits annexed to it.

Arising from the Applicant’s Statement, the application was predicated on the following grounds:

By virtue of Sections 34 (1) (a) and 36 of the 1999 Constitution of the Federal Republic of Nigeria, every person including the Applicant is entitled to work without being tortured or subjected to inhuman treatment/degrading treatment and he is entitled to be heard or given a fair hearing by the organs, members and committees set up by the agents or officers of the 1^stRespondent including the 2^ndand 3^rd Respondents.
The 1^stRespondent’s members and committees are freely laying criminal allegations against the Applicant without giving the Applicant the opportunity to defend himself and Applicant is not respected as a human being and, his dignity is abused with ease by 1^stRespondent’s officers and members including the 2^nd and 3^rd Respondents.
The 2^ndand 3^rdRespondents are using the agents/organs/committees of the 1^st Respondent to harass, intimidate, threaten and attempt to dismiss the Applicant from 1^st Respondent’s employment without respect for Applicant’s fundamental rights and make life unbearable for the Applicant through phone calls, written invitation, attempts to suspend the Applicant from 1^st Respondents’ employment without regard for Applicant’s fundamental rights.
Applicant is entertaining the fear that he won’t receive a fair trial before the committees set up by the organs and officers of the 1^stRespondent.
The organs, committees and officers of the 1^stRespondent heard criminal allegations laid against the Applicant without inviting the Applicant to state his side of the case.
The Applicant is an employee of the 1^stRespondents and not a slave to 2^ndand 3^rd Respondents.
The 1^st,2^nd and 3^rd Respondents are empowered by law to act and must act within the confines of the law in any matter that affects the rights of the Applicant.

The Applicant on the 13^th of June, 2016 also filed an 11 paragraphed further affidavit deposed to by the Applicant himself and same was accompanied with two exhibits.

The Respondent in reaction filed three affidavits. The first, a counter affidavit of 35 paragraphs deposed to by Comrade Joshua Irapakor was filed on the 12^th of April, 2016. He also deposed to the second further counter affidavit of 11 paragraphs filed on the 29^th of October, 2016 and the third was a further and better counter affidavit of 26 paragraphs deposed to by one Comrade Chukwuemeka Aguonye which was filed on the 24^th of May, 2018. Each of the affidavit was accompanied by a written address.

The Applicant on the 20^th of June, 2018 filed a 16 paragraphs affidavit deposed to by the Applicant himself by way of reply to the Further and better counter affidavit.

Arising from the written address in support of the motion, Counsel to the Applicant, Olalekan Tani formulated three issues for determination to wit:

(a) Whether the 1^st, 2^nd and 3^rd Respondents acted within the ambit of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria when they failed to give the Applicant the ample opportunity and facilities to defend himself from their criminal allegations and investigations.

(h) Whether a reasonable man who has a good knowledge of the facts of this case would believe that the Applicant would be fairly heard when he comes to know that Comrade Patrick Igwe and Comrade Bularna Modu Fantai were members of the Staff Reorganization Committee and Staff and Establishment Committee, being investigative and disciplinary committees respectively, that investigated and took disciplinary actions against the Applicant.

(c) Whether the experiences the Applicant was opened to by the Respondents are not acts of intimidation, mental torture and inhuman and degrading treatment contrary to Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended.

In arguing all the issues together, counsel argued that the rules of natural justice are the minimum standards of fair decision-making imposed on persons or bodies acting in a judicial capacity. He added that where the relevant person or body is required to determine questions of law or fact in circumstances where its decisions will have a direct impact on the rights, liabilities or legitimate expectations of the parties involved, an implied obligation to observe the principles of natural justice arises.

Counsel contended that the principles are two folds i.e. the right to an opportunity to be heard and the right to a hearing that is free from a likelihood of bias.

He maintained that the right to a fair hearing requires that an individual shall not be penalized by a decision affecting his rights or legitimate expectations unless he has been given prior notice of the case against him, a fair opportunity to answer it and the opportunity to present his own case. He added that it also requires that the person hearing the matter be an unbiased person and should not have a likelihood of bias.

Counsel cited the case of British Airways v Makanjuola (199) 8 NWLR (Pt.311) 276 upon which he posited that fair hearing as guaranteed by section 36 of the 1999 Constitution should not be violated and an absence of same vitiates the proceedings, however well conducted. He also cited the case of Adigun v. A.G. Oyo State (1987) (Pt. 53) 678 at 694 on the implication of a breach of the rule of fair hearing which is that the proceeding would be declared a nullity. He added the case of Garba v University of Maiduguri (1996) 2 NWLR (Pt.18) 559 and Odigie v Nig. Paper Mills Ltd (1993) 8 NWLR (Pt.311) 338 at 355 -356 and posited that the principles have been applied in these cases.

Counsel also argued that it is well settled that the rules of natural justice apply to both judicial and administrative bodies and they are not limited to judicial decisions. He maintained that the principles of natural justice applies in all cases, where the preliminary investigation or inquiry, is an integral or necessary part of a process, which may terminate in a decision or action adverse to the interests of the applicant claiming the right to he heard. He cited the case of LPDC v Fawehinmi (1985) 2 NWLR (Pt.7) 300, 390.

Counsel submitted that the principle of fair hearing is now codified in section 36 of the 1999 Constitution. He added that the issue of real likelihood of bias came up in the case of Abiola v FRN (1995) 7 NWLR (Pt. 405) 1.

Counsel concluded by urging the court to grant the Applicant’s reliefs as prayed.

By way of reaction to the arguments of Counsel to the Applicant, counsel to the Respondent, V.A. Ofikwu adopted the three issues formulated by Counsel to the Applicant in the first written address but argued them separately.

In arguing issue one, counsel submitted that the 1^st , 2^nd and 3^rd Respondents acted within the ambit of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and gave the Applicant ample opportunity and facilities to defend himself from the allegation of criminal/gross misconduct by employing one Onime O. Margaret singlehandedly without approval from the National Secretariat of the Union, Abuja.

Counsel contended that the Applicant is an employee of the 1^st Respondent by virtue of Rule 2 of The NULGE (Staff) Regulations 1983. Counsel added that by so doing, in running the affairs of the Union, the National Executive Council must have recourse to the Provisions of the 2005 Constitution of the Union, The NULGE (Staff) Regulations 1983, The Public Service Rules 2008 and the 1999 Constitution of Nigeria.

He cited the provision of Rule 8 (xiii) (e) of the 2005 Constitution of the union which provides that “It should be the duty of the National Executive Council to undertake the following:

(e). “To set up such Departments or Committees as it may deem necessary for the smooth and orderly conduct of the affairs of the union”.

He added Rule 15 (v) (b) of the Constitution which provides that: “There shall be established other committees of the union as considered necessary from time to time by the National Executive Council (NEC) and State Executive Council (SEC)”

He posited that Rule 2 of the NULGE (Staff) Regulations 1983 state that: “Committee shall mean any committee set up by the National Executive Council to deal with a particular matter”.

Counsel posited that as deposed to in the paragraph of the counter affidavit, the Applicant is a member of the National Executive Council of the Union and took part the setting up of the Offune Committee, the Staff Reorganization Committee and the Staff and Establishment Committee, therefore, he had knowledge from the inception when the committees were set up and what their duties were being a member of the National Executive Council. He also cited Rule 8(ii) and 13 (a-j) of the 2005 Constitution of the Union on the composition of the NEC.

Counsel referred to Exhibit CC3 for what the Offune Committee was set up to do and posited that the Applicant admitted that the Committee carried out the verification of Staff Certificates/Screening Exercise being a fact finding/investigatory committee. Counsel then referred to page 3 — 5 of Exhibit ‘CC3’ and Exhibit ‘HH8’ filed by the Applicant to posit that there are other employees of the 1^st Respondent verified by the committee who are listed therein. He also cited Rule 8(xvi) of the 2005 Constitution of the Union which states that: “Any member of the Union who is personally affected or involved in any matter under discussion shall disclose his/her interest and shall not take part in such discussion.

Counsel posited that none of the terms of reference of the Offune Committee says that while conducting the verification of certificates/screening of staff, it should invite persons who employed staff into the union and that none of the terms of reference of the Staff Reorganization Committee makes provisions that in the course of studying the Offune Committee Report, it should invite and hear any staff who employed a person into the union.

Counsel maintained that the Applicant lied on oath when he said the 2^nd Respondent set up the Offune Committee in 2013 and he heard it for the 1^st time on the 31^st August 2015 in the National Executive Council (NEC) meeting.

Counsel further posited that it is on record that after the report of the Staff Reorganization Committee was given to the National Executive Council, it was sent to the Staff and Establishment Committee on 13^th January 2016, for its appropriate action and pursuant to that, the Staff and Establishment Committee sent Exhibit ‘DD4’ to the Applicant, giving him opportunity to be heard in defence of the discovery that he singlehandedly employed one Onime 0. Margaret, a grade level 06 Staff into the service of the 1^st Respondent without the knowledge and approval of the National Secretariat nor the Staff and Establishment Committee. He added that via Exhibit DD4, the Applicant was given 24 hours to explain why disciplinary action should not be taken against him.

Counsel stated that after the Applicant responded to the query in his Exhibit ‘EE5’, the Respondents served on him Exhibit ‘HH8’, being interdiction/suspension letter dated 21^st January 2016 and a personal one by Exhibit ‘4’ being a notice of interdiction/suspension which he endorsed on the 2^nd February 2016. He added that a text message was sent to the Applicant to appear before the Staff and Establishment Committee to defend himself but he did not appear, instead he instituted this suit against the respondents but the processes were not served on the Respondents until, 4^th February, 2016. Counsel added that Exhibit 5 was given to the Applicant to appear on the 3^rd of January (sic) (meant to be February) 2016. This time he appeared and affirmed that he received the notice of interdiction (Exhibit C4). He was also requested go and hand over the Union’s property and to return to the sitting but he never returned. Counsel cited Rule 030303 of the Public Service Rules to posit that the Applicant had been given reasonable time to reply. Counsel cited section 36 (2) of the Constitution. Counsel maintained that 21^st of January to 3^rd of February is reasonable enough. He cited the case of SYLVESTER Vs. OHIAKWU (2013) 49 WRN 87 at ratio 19 (P.130) lines 30 — 40 on what the court considers to be reasonable time.

Counsel also made a distinction between judicial decision and quasi-judicial decision and maintained that the case of the Applicant was quasi-judicial and that same was merely fact finding and application of administrative policy which is not final. He cited the case of Esiaga v Unical (2004) 21 WRN 28.

Counsel urged the court to hold that the Applicant was not denied opportunity to be heard but accorded a fair hearing which he chose to abandon and headed for the court after putting up appearance through Exhibit ‘EE5’ as confirmed in Exhibit ‘6’ respectively.

With regards to issue two, counsel posited that there are no facts on record to sustain the issue. He posited that the burden is on the Applicant to prove his allegation and cited section 131 (1) of the Evidence Act 2011.

Counsel further posited that courts do not act on speculations and cited the cases of AIGUOREGHIAN Vs. STATE (2004) 12 WRN 25 at ratio 16 (P. 51), lines 15 — 25 and ISAH Vs. STATE (2006)32 WRN 57 at ratio 10 (P. 95), lines 35.

With regards to issue three, counsel cited section 34 (1) (a) of the Constitution of Federal Republic of Nigeria 1999 and also Part III Rule 22, Rule 23,25 and 26 of the Nigerian Union of Local Government Employees (Staff) Regulation, 1983.

Counsel contended that the Applicant was not subjected to any torture or to inhuman degrading treatment as Exhibits HH8 and 4 are notices of interdiction/suspension given to the Applicant and others showing what they did and the date the interdiction takes effect. Counsel added that all other procedures adopted are in other to hear the Applicant over the allegations made against him in compliance with the relevant laws. Counsel contended that no paragraph of the affidavit talked about torture or inhuman treatment.

Counsel also pointed out some paragraphs of the Applicant’s affidavit which he considered to have offended section 115 of the Evidence Act, 2011.

He concluded by urging the court to dismiss the application as it is baseless and unfounded.

The written address in support of the further counter affidavit, in view of the fact that the further counter affidavit was to respond to the further affidavit Applicant largely argued on facts as contended in the said further counter affidavit without any particular legal issue being formulated while that in support of the further and better counter affidavit filed on the 24^th of May, 2018 projected one issue for determination to wit:

Whether the Claimant who had admitted to be reinstated, paid his arrears of salaries and some entitlements and back on duty can be heard asking for a term of settlement to be entered into.

The Applicant did not file any address in support of his reply to the further and better counter affidavit.

In view of the forgoing, I have painstakingly considered all the processes filed in respect of the application before this court, the Exhibits annexed to the affidavits filed and the arguments of counsel for both parties through the written addresses.

Consequently, the sole issue for the determination of the application is to wit:

Whether in view of the evidence before this court, the Applicant is entitled to the reliefs sought.

In resolving the issue before this court, I must state from the onset that the determination of the application before this court is not to determine whether the act or omission of the Applicant leading to the breach of his fundamental right is right or wrong to warrant discipline but whether the process of his discipline by the Respondents complied with the rules of natural justice and fair hearing. That is simply a case of fundamental right enforcement instituted before this court, arising in the course of Applicant’s employment.

I must also state that I have considered the arguments contained in the written address in support of the further and better counter affidavit of the Respondents and find that same relates to arguments on issues that arose subsequent to the institution of this suit which cannot serve any purpose for the determination of the application for the enforcement of fundamental right placed before this court in respect of matters that arose prior to 27^th January, 2016, the date upon which this suit was filed. The best that can be said of the facts arising from the Further and Better counter affidavit and the Reply filed by the Applicant and the arguments made in the written address in support of the Further and better counter affidavit is that they are issues that arose pendente lite. The court in the case of OLUSI & ANOR v. OBANOBI & ORS (2014) LPELR-22089(CA) stated the meaning of the Latin term thus:

“The Latin words pendente lite or lite pendente merely means “while the action is pending” during the proceedings or litigation; or in a manner contingent on the outcome of litigation” Per OWOADE, J.C.A. (P. 52, paras. E-F)

While the grounds upon which this application was brought clearly shows that the application is in respect of non-compliance with rules of fair hearing in the proceedings leading to the interdiction/suspension of the Applicant which climaxed on the 21^st of January 2011 when the Applicant was issued with Exhibit HH8 (letter of Interdiction/Suspension), the facts deposed in the Further and Better affidavit relates to the lifting of the suspension of the Applicant alleged to have happened on the 10^th of January, 2018, the allegation of resumption of duty by the Applicant on the 15^th of January, 2018 and the alleged payment of the salaries of the Applicant all of which occurred about two years after this suit was filed in 2016.

There is no gainsaying that these facts will have no impact on the determination of this application and same are consequently discountenanced.

For the sake of clarity, the processes to be considered for the resolution of the sole issue and eventual determination of the application before this court are the affidavit and further affidavit in support of the application, with the accompanying exhibits and written address filed on the 27^th of January 2016 and 13^th June 2016 respectively on the part of the Applicant. While on the part of the Respondents, the Counter affidavit and further Counter affidavit with the accompanying exhibits and written addresses filed on the 12^th of April 2016 and 29^th October, 2016 respectively are to be considered.

I then return to the resolution of the sole issue. Foremost, it is imperative to ask the question that, which provision of the fundamental rights as provided in Chapter IV of the Constitution is the Applicant complaining of being breached? The answering of this question is paramount in view of the holding of the court in the case of FEDERAL REPUBLIC OF NIGERIA & ORS. v. ALHAJI MOHAMMED SANI ABACHA & ORS. (2014) LPELR-22355(CA) where the court held that:

“It is incumbent on a party alleging the infringement of his fundamental rights to specify which of the specific right guaranteed to him under the Constitution has been or is being or is likely to be infringed.” Per ABIRU, J.C.A. (P. 118, paras. F-G)

A quick look at the grounds upon which the application was brought reveals that the Applicant’s grouse is in respect to the breach of section 34 (1) (a) and section 36.

Ground (a) states that:

“By virtue of Sections 34(1) (a) and 36 of the 1999 Constitution of the Federal Republic of Nigeria every person including the Applicant is entitled to work without being tortured or subjected to inhuman treatment/degrading treatment and he is entitled to be heard or given a fair hearing by the organs, members and committees set up by the agents or officers of the 1^st Respondent including the 2^nd and 3^rd Respondents”.

In view of the above ground, it is apposite to take a cursory look at the provisions of sections 34 (1) (a) and 36 of the Constitution of Federal Republic of Nigeria 199 (as amended).

Section 34 (1) (a) provides that:

Every individual is entitled to respect for the dignity of his person, and accordingly –

(a)no person shall be subjected to torture or to inhuman or degrading treatment.

While section 36 (1) provides that:

(1)In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

In view of the reliefs sought by the Appellant, there is no gainsaying that the burden is on the Applicant to prove that the rights guaranteed to him under the above provisions is been, is being or is likely to be breached.

The court in the case of ADEKUNLE v. A-G OF OGUN STATE (2014) LPELR-22569(CA) held that:

“…Indeed, the Appellant has the burden to prove by cogent, convincing and credible evidence, the facts as alleged by him, as constituting the breach or infringement of the Fundamental right to freedom from inhuman and degrading treatment or torture as guaranteed him by Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria. General and wide allegations of such breach or infringement will not suffice…” Per TSAMMANI, J.C.A. (Pp. 36-37, paras. B-D)

The origin of such burden is as found in the provision of section 131 (1) and (2) of the Evidence Act, 2011 which states that:

(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

In view of the foregoing, how then has the preceding provisions of the law been infringed, being infringed or likely to be infringed in the instant case? The answer lies in the affidavit and exhibits before this court.

Arising from the affidavit and further affidavit of the Applicant, the Applicant as an employee of the 1^st Respondent on the 5^th of January 2013 signed the letter of employment of one Onime Olore Margaret on behalf of the 3^rd Respondent. In the same year, there was the setting up of the Offune Committee as a fact finding Committee to screen/verify 1^st Respondent staff Certificate. The Applicant claimed to hear of the Committee on 31^st August 2015 for the first time at the National Executive Council (NEC) Meeting. The Committee screened the said Onime Olore Margaret and raised issues in respect of the Applicant’s signing of her letter of employment as stated in Exhibit CC3 wherein the Staff Reorganization Committee, based on the findings of Offune Committee recommended that the Applicant be suspended indefinitely without pay. He maintained that the Committee never invited him on how or why he signed the said letter of employment. He added that NEC of the 1^st Respondent on 13^th of January 2016 received the said Exhibit CC3. On 19^th of January 2016, the Applicant then received Exhibit DD4, a query issued on behalf of the Staff and Establishment Committee of the 1^st Respondent which required the Applicant to answer as to why disciplinary action should not be taken against him in respect of the employment of Onime Olore Margaret. He responded to the query via exhibit EE5 dated 20^th January 2016. He then applied to the 1^st respondent to attend to a medical appointment in University of Ilorin Teaching Hospital which was originally slated for 20^th January 2016 but due to the preparation of response to the query, had to be rescheduled for 21^st January, 2016. While in his house at about 7:11 pm on 20^th January, 2016, he got a text message inviting him to appear before the Establishment Committee on the 21^st of January, 2016 at 10:00 am. In view of his medical appointment, he wrote an application for two weeks extension which was sent to the 1^st Respondent via a neighbour at first instance, then a courier service at second attempt, but the application letter was not received eventually. On 22^nd of January, 2016, the Applicant was sent a message through his email box that he has been suspended via Exhibit HH8 dated 21^st January 2016. He was later served with Exhibit JJ10 being letter of indefinite suspension. He posited that the haste with which the Respondent required him to respond to Exhibit DD4 was worrisome without giving him adequate time to defend himself from the criminal allegation and same has affected his state of mind and therefore a breach of his right to fair hearing which has also opened him to harsh treatment by his employer and causing him high degree of trauma.

In reaction to the allegation as gathered from the counter affidavit and further counter affidavit and Exhibits tendered, the position of the Respondents is that the Offune Committee is a fact finding Committee and the Applicant is aware of the said Committee and same was set up by the National Executive Council and not the 2^nd Respondent. They also maintained that it was the Staff Reorganization Committee that deliberated on the Offune Committee and the terms of reference of the Reorganization Committee does not include calling and hearing the Applicant or any staff but merely confirmed the findings of the Offune Committee and made recommendations. In addition, they posited that the query, Exhibit DD4 was received by the Applicant on 18^th of January, 2016 at 2:55pm and tendered their own copy as Exhibit 7 and that by the said exhibit he had been given opportunity to be heard. The Respondents posited that the Applicant was sent a text message on the 20^th of January, 2016 to appear before the Staff and establishment Committee on the 21^st of January 2016 but he refused/neglected to appear before the Committee consequent upon which a Notice of interdiction/suspension dated 21^st January, 2016 was served on him and a copy was endorsed and accepted by the Applicant on the 2^nd of February, 2016. That on the 3^rd of February 2016, the Applicant appeared before the staff and Establishment Committee to defend himself, he was asked some questions and asked to go and comply with some directive and return but he did not return. Consequently, he was served Exhibit 6, the letter of indefinite suspension. The 3^rd Respondent denied the Applicant’s letter in request for extension of time for two weeks and posited that the Applicant was given opportunity to be heard. They also posited that the Applicant never got permission from office to stay in Ilorin till 25^th January, 2016. They also posited that the Applicant have no fundamental right to be protected.

In view of the above facts and corresponding exhibits, I shall consider whether the fundamental right of the Applicant to fair hearing and freedom from torture as guaranteed by section 34 (1) (a) and 36 have been, is being or likely to be breached.

With regards to the right to fair hearing as provided in section 36 of the CFRN 1999 (as amended), the court in the case of EZEIBE v. EZEIBE (2013) LPELR-21907(CA) held that:

“The right to fair hearing is one of the fundamental rights guaranteed to all persons in Nigeria, which cannot be derogated from by any person, institution or government. The right to fair hearing is an entrenched right and encompasses the twin pillars of natural justice recognized as audi alteram partem and nemo judex in causa sua i.e. both sides to a dispute should be heard before the judex can pronounce on the respective rights and obligations of the parties. The second leg is that no person should preside or determine a dispute that affects his interests. See BAKARE v L.S.C.S.C (1992) NWLR (Pt. 262) p.641, BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) p.388 and MOHAMMED v. OLAWUNMI (1990) NWLR (Pt.133) p.458.” Per TSAMMANI, J.C.A. (P. 25, paras. A-D)

The court stated further in the same case that:

“The essence of this principle; audi alteram partem is that, a verdict should not be pronounced or entered against a man on a matter relating to his civil rights and obligations before a court or tribunal without his being given an opportunity to be heard. Thus, a denial of the right to be heard is a breach of the principles of natural justice as enshrined in the Constitution. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Imaseun v. University of Benin (2010) 3 NWLR (Pt. 1182) 591; Ajayi v. N.U.R.T.W. (2009) 8 NWLR (Pt. 1144) 423.” Per AJI, J.C.A. (Pp. 17-18, paras. F-A)

In order to be certain that the principles of fair hearing has been complied with, the court made the following exposition:

“….in a judicial or quasi-judicial proceedings, for a hearing to be fair, it must include the right of the person to be affected as follows: 1. to be present either by himself or by his counsel all through the proceedings and hear all the evidence against him; 2. to cross-examine or otherwise confront or contradict all the witnesses that testify against him; 3. to have read before him all the documents tendered in evidence at the hearing; 4. to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognized exceptions; 5. to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and 6. to give evidence by himself, call witnesses if he likes and make oral submissions either personally or through a counsel of his choice. See BABA v. NCATC (1991) 5 NWLR (pt. 192) 388, N.A.B. KOTOYE v. CBN & ORS. (1989) 1 NWLR (Pt. 98) 419; MOHAMMED v. KANO N. A. (1968) 1 ALL NLR 424 at 426.” Per OKORO, J.C.A. (Pp. 23-24, paras. E-C)

Arising from the Exhibits before this court, I find that the Offune Committee which discovered that the Applicant signed the employment letter was simply a fact finding committee and would not have been responsible for the calling of the Applicant to question. The Committee did not sit as a quasi-judicial body and so is not saddled with the responsibility of complying with the principle of fair hearing. According to Exhibit CC3, the Staff Reorganization Committee whose report mentions the Applicant after deliberating on the Offune Committee report is also not to be considered as a quasi-judicial body since it did not sit to hear and determine any matter of criminal allegation but predicated its recommendation on the findings of the Offune Committee. The only body that sat as a quasi-judicial body in this case was the Staff and Establishment Committee who pronounced on the punishment to be inflicted on the Applicant. In view of Exhibit DD4 or Exhibit 7, the Applicant was issued query on the 18^th of January, 2016 which he was to respond to in 24 hours. He did reply via Exhibit EE5. Upon receiving the response, the Applicant was sent a text message on the 20^th of January, 2016 to appear before the Staff and establishment Committee on the 21^st of January 2016, at 10:00am and that he is at liberty to bring along any documentary evidence and witnesses that may assist the Committee in its task. This is indeed an opportunity for the Applicant to defend himself. However, in view of Exhibits FF6, the Applicant put in a letter in response to the invitation informing the Chairman of the Committee that he would not be able to honour the invitation for some reasons which I consider cogent and exhibit II9 which is the Hospital Visiting Card to establish the fact that he indeed had an appointment with the Hospital.

Therefore, the Applicant did not appear before the Committee and sought for extension of two weeks. He maintained that the said letter was refused despite efforts made. Despite the request, the Applicant was served with Exhibit HH8, dated 21^st January, 2016, stating that the Applicant amongst other persons have been interdicted/suspended with effect from 21^st January, 2016.

In view of the established facts, can it be said that the Applicant was given adequate opportunity to defend himself? Sending a text message to the Applicant on the 20^th of January 2016, to appear on 21^st January, 2016 at 10:00am with necessary document and witnesses is considered to be inadequate and I so hold.

Having said that, I am not unmindful of the fact that another invitation was given to the Applicant via Exhibit 5 dated 21^st January, 2016 to appear before the same Establishment Committee on the 3^rd of February, 2016. That is about 13 days’ notice which I consider adequate, however, this invitation is a medicine after death in view of the fact that the Applicant had already been suspended. His attendance before the Committee was also inconsequential since it was merely to ask the Applicant if he had complied with his suspension which required him to handover the properties of the 1^st Respondent. The Committee merely upgraded the suspension of the Applicant to one that is indefinite via Exhibit 6 in view of his walking out on the Committee. I also reckon that Exhibit 4 which is the letter of Interdiction/Suspension addressed specifically to the Applicant and acknowledged by him on 2^nd of February, 2016 is itself dated the 21^st January, 2016. This is to further establish the fact that the Applicant had been punished before he was given adequate time to prepare and appear before the Staff and Establishment Committee.

Consequently, the Applicant has established that indeed, his fundamental right to fair hearing was breached in view of the interdiction/suspension meted out to him without adequate opportunity to be heard.

With regards to right to freedom from torture and inhuman or degrading treatment as section 34 (1) (a) states that no person shall be subjected to torture and inhuman or degrading treatment.

the words ‘torture’ and ‘inhuman or degrading treatment’ have been given judicial exposition in the case of ATTORNEY-GENERAL & COMMISSIONER OF JUSTICE, KEBBI STATE v. HRH, ALHAJI AL-MUSTAPHA JOKOLO & ORS (2013) LPELR-22349(CA) where the court held that:

“Torture” is the infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure. In ‘Torture and English Law’, 1982 by James Heath, the learned author stated at page 3 that: “By torture I mean the infliction of physically founded suffering or the threat immediately to inflict it, where such infliction or threat is intended to elicit, or such infliction is incidental to means adopted to elicit, matter of intelligence or forensic proof and the motive is one of military, civil, or ecclesiastical interest.” …If an “inhuman treatment or conduct” is meted to a person, it means it is extremely cruel; that the treatment or conduct exhibited to that person is strange or bad because they do not seem human in some way. See Collins Cobuild Advanced Learner’s English Dictionary, New Edition, page 746.” Per TUR, J.C.A. (P. 68, paras. A-F)

The Black’s Law Dictionary, 10^th Edition at page 1718 also defined torture as the infliction of intense pain to the body or mind to punish… to obtain sadistic pleasure.

In view of the foregoing exposition, I have reviewed all the exhibits before the court and find that none establishes the fact that the Applicant was subjected to any form of torture whether physical or mental. The medical condition of the Applicant relating to his eyes were not caused by the Respondents and neither was the Applicant prevented from visiting his Doctor in that regard. The suspension of the Applicant is a thing that happens in the ordinary course of employment relation as a form of discipline and same rarely have a link with mental torture except same is protracted and is medically proven to have caused mental havoc which is not the case in respect of the Applicant. The Applicant has not placed any cogent, credible and convincing evidence before the court to prove that he was subjected to torture, inhuman or degrading treatment.

Consequently, I find that the Respondent has not breached, is not breaching or likely to breach the Applicant’s fundamental right to freedom from torture, inhuman or degrading treatment and I so hold.

In view of the foregoing, I proceed to taking into account the reliefs sought by the Applicant. Reliefs one to five are declaratory in nature and it is trite that the grant of the said declaratory reliefs are dependent on the strength of the Applicant’s case and the evidence adduced by the Applicant. The court in OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held that:

”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 23, paras. F-G)

Relief 1 is “A DECLARATION that the failure of Offune led Committee (Staff Screening/Verification Committee), Staff Reorganization Committee, National Executive Council (NEC) and the Staff and Establishment Committee being bodies set up by the 1^st Respondent and/or 1^st Respondents organ(s) to hear the Applicant in the course of their investigation, deliberation, consideration, verification and screening violates the Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, unlawful, illegal, null and void”.

While the Applicant has failed to establish the fact that the Offune led Committee (Staff Screening/Verification Committee), Staff Reorganization Committee, National Executive Council (NEC) of the 1^st Respondent were set up to hear the Applicant or any other person in respect to screening/verification, investigation and deliberation but proved that the Staff and Establishment Committee set up to hear and determine the discipline of the persons whose names featured in the report but however failed to afford the Applicant adequate time to prepare and attend its hearing, violated the fundamental right to fair hearing of the Applicant. Consequently, Relief one is granted in part to the effect that this court makes a declaration that:

“the Staff and Establishment Committee being a body set up by the 1^st Respondent and/or 1^st Respondents organ(s) to hear the Applicant in the course of their investigation, deliberation, consideration of the recommendation of the Staff Reorganization Committee violates the Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, unlawful, illegal, null and void”

Relief two is for “A DECLARATION that the membership of Comrade Patrick lgwe and Comrade Bulama Modu Fantami of the Staff Reorganization Committee and Staff and Establishment Committee, being investigative and disciplinary committees respectively, is an affront to the Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, unlawful, illegal, null and void and the proceedings, decisions, deliberations, studies, detection, reports, query, recommendations, result disciplinary action, interdiction/suspension letter dated 21^st January, 2016 or otherwise howsoever are to that extent of no effect”.

Arising from the Exhibits before the Court, Exhibit CC3 shows that Comrade Patrick lgwe and Comrade Bulama Modu Fantami were members of the Staff Reorganization Committee which deliberated on the Offune Committee Report and recommended the Applicant for discipline while Exhibit II9 shows that Comrade Patrick lgwe and Comrade Bulama Modu Fantami were also members of the Staff and Establishment Committee which was to hear and determine the discipline of the Applicant. In this regard, the court in the case of ADEBESIN v. STATE (2014) LPELR-22694(SC) stated three categories of bias, one of which is apt in the circumstance of this case as the court noted that:

“Official bias (is) an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties. See Venkatuchalam Iver v. The State of Madras AIR 195.7 Mad. 623, 626.” Per NGWUTA, J.S.C. (P. 24, paras. B-D)

The court also reckoned that “it is idle to speculate on what goes on in the mind of another person but the inference of bias can be drawn from the proceedings” Per NGWUTA, J.S.C. (Pp. 23-24, paras. F-A)

Arising from the two exhibits mentioned above in relation to the proceedings which indicates that Comrade Patrick lgwe and Comrade Bulama Modu Fantami were involved in both Committees that recommended the suspension and also that which was to hear the Applicant to determine the suspension, there is evidence that the punishment of the Applicant was already predetermined and therefore an inference of official bias can be made.

In view of this established facts, the Applicant has proven that that there is likelihood of bias in the outcome of the decision of the Staff and Establishment Committee.

Consequently, relief two is granted to the extent that the this court makes a declaration that “the membership of Comrade Patrick lgwe and Comrade Bulama Modu Fantami of the Staff Reorganization Committee and Staff and Establishment Committee, being investigative and disciplinary committees respectively, is a violation of the Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, unlawful, illegal, null and void and the interdiction/suspension letter dated 21^st January, 2016 or otherwise howsoever are to that extent of no effect”.

Relief three is for “A DECLARATION that the entire proceedings, decisions, deliberations, studies, detection, reports, query, recommendations, result, disciplinary action, interdiction/suspension letter dated 21^st January, 2016 or otherwise howsoever that arose from the activities of Offune led Committee (Staff Screening/ Verification Committee), Staff Reorganization Committee, National Executive Council (NEC) and the Staff and Establishment Committee in respect of Omime Olore Margaret’s matter of employment concerning the Applicant are unconstitutional, unlawful, illegal, null and void and of no effect having being acts done in violation of Applicant’s fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”; while relief five is for an order consequent upon the grant of relief three.

Relief five reads:

“AN ORDER of this Honourable Court setting aside the entire proceedings, decisions, deliberations, studies, detection, reports, query, recommendations, result, disciplinary action and/or interdiction/suspension letter dated 21^st January, 2016 for being unconstitutional, unlawful, illegal, null and void and of no effect whatsoever”.

This court has found and held that based on the evidence adduced by the Applicant, the Applicant was not accorded adequate time to prepare and attend the hearing of the Staff and Establishment Committee which acted on the recommendation of the Staff Reorganization Committee whose recommendation was based on the findings of the Offune led Committee to suspend the Applicant. Consequent upon the satisfactory evidence, relief three and five are granted as prayed.

Relief four is for “A DECLARATION that the Applicant has been subjected to acts of intimidation, mental torture and inhuman and degrading treatment by the Respondents in the course of their requesting the Applicant to appear before 1^st Respondent’s committees without considering the Applicant’s physical, safety and health interest through oppressively hurried/hasty request for Applicant’s appearance before 1^st Respondent’s committees”.

This court has found and held that based on the evidence before the court, Applicant has failed to prove how he was tortured either physically or mentally. Consequently for lack of cogent and convincing evidence, relief four is accordingly refused.

Relief 6 is for “Damages in the sum of N5, 000, 000. 00 (Five Million Naira) only for intimidation, harassment, oppression and careless violation of Applicant’s fundamental rights”.

This relief is in the realm of general damages as the Applicant is not required to prove the loss he has suffered. The establishment of the fact that his right to fair hearing was breached suffices to entitle him to damages. The court in COMRADE ADAMS ALIYU OSHIOMOLE V. CHARLES EHIGIE AIRHIAVBERE MAJ, GEN (RTD) & ORS (2013) LPELR-19762(SC) held that:

“It is well settled that a party who complains of a breach of his right to fair hearing need not show what damages or loses he has suffered…” Per OGUNBIYI, J.S.C –

That notwithstanding, in view of the fact that the relief is in the realm of general damages, the discretion of the court becomes very essential in determining whether or not the sum sought by the Applicant as damages should be granted. The court in AP PLC. V. ABRORISADE & ANOR (2013) LPELR-20362(CA) Per ABOKI, J.C.A noted authoritatively that:

“General Damages unlike specific damages are not quantifiable, it is purely at the discretion of the trial Court which heard all the parties and is in a better position to easily determined what would amount to a reasonable compensation to a party entitled to such an award. See Framo Nig. Ltd. v. Shaibu Dawodu (1993) 3 NWLR (pt. 281) 372.” (P. 37, paras. E-F).

In more elaborate terms, the court in FIRST BANK OF NIGERIA PLC v. OLALEYE (2012) LPELR-20096(CA) held that:

“The principle guiding the award of damages is that damages will flow from the wrong suffered to a complainant. Any grant of general damages is intended to assuage the natural loss and painful mental feelings suffered by the claimant and caused by the Defendant. The relief claimed in such situations has no mathematical exactitude. However, since there is no parameter or yardstick for the Court to use in the award of general damages, such a discretion ought to be exercised judicially and judiciously and also to be considered as what the reasonable man would see as adequate loss or inconvenience flowing naturally from the act of the Defendant. See UNIPETROL NIG. PLC VS. ADIREYE WEST AFRICA LTD. (2005) 14 NWLR (PT.946) 563. Also the case of ROCKONOH PROPERTIES CO. LTD. VS. NIGERIAN TELECOMMUNICATION PLC (2001) 14 NWLR (PT.733) 468.” Per EKPE, J.C.A (Pp 16-17,Paras F-C).

Consequent upon the above authorities and upon a consideration of the entire facts of this case, particularly in view of failure to establish the breach of the right to freedom from torture, inhuman or degrading treatment, relief six is granted to effect that this courts grant damages in the sum of N500,000 (five Hundred Thousand Naira) for the violation of Applicant’s fundamental right to fair hearing to be paid within 30 days from the date of delivery of this judgment.

In the final analysis, I find the case of the Applicant to be partly meritorious to the extent at the above reliefs have been granted.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.