IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A. A.ADEWEMIMO
DATED: 6TH MAY, 2019 SUIT NO: NICN/AK/39/2017
BETWEEN
MRS. CHINAKA ANWULI MAUREEN ……………. CLAIMANT
AND
ONDO STATE JUDICIAL SERVICE COMMISSION …… DEFENDANT
REPRESENTATION:-
NNAMDI ANOKA APPEARS FOR THE CLAIMANT
H.M. FALOWO (ACLO, ONDO MINISTRY OF JUSTICE) FOR THE DEFENDANT
JUDGMENT
The Claimant by a Complaint before this Court on the 8th December, 2017 initiated this suit and vide her amended complaint of 24th April, 2018 claims against the Defendant as follows:
A DECLARATION that the claimant’s suspension by the Defendant is illegal, unlawful and ultra vires for failure to comply with due process
AN ORDER reinstating the claimant to the position of Magistrate I in the employment of the Defendant without loss in rank and seniority or of salary, increment and promotion with effect from the 14th September, 2017 being the date of the purported suspension of the claimant by the Defendant.
AN ORDER mandating the Defendant to pay the Claimant all her arrears of full salary and allowances from 14th of September, 2017 to the date she is reinstated to the employment of the Defendant.
INTEREST of 21% on the Claimant’s accumulated arrears of salaries and allowances from the 14th of September, 2017 till judgment is delivered and 15% interest until the judgment is complied with.
The sum of N15,000,000.00 (Fifteen Million Naira Only) as general damages.
The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witness and documents to be relied upon. The claimant obtained leave to amend her processes and same was filed on 24th April, 2018. Upon been served with the Statement of Defence and counter-claim of the Defendant, the claimant filed a reply to Statement of Defence and Defence to Counter-Claim on 23rd February, 2018, wherein the claimant denies each and every allegations of fact contained in the Statement of Defence and Counter-Claim.
The Defendant on its own part filed a Memorandum of Conditional appearance, Statement of Defence and counter-claim, list of witness and documents on the 19th of January, 2018. A Reply to Claimant’s Defence to its Counter-Claim was also filed by the Defendant on 21st May, 2018.
The Claimant’s case is that she was employed by the Defendant as a Senior Registrar II on Grade Level 10 Step 1, vide a letter dated February 28, 2013 with effect from 27th of February, 2013, and the appointment was confirmed vide letter dated 22nd June, 2015.
The Claimant stated further that she was promoted to the post of Senior Registrar I Grade Level 12 on January 1, 2016 and was thereafter converted to a Magistrate notionally with effect from 1st of January, 2016. The claimant was sworn in as a Magistrate by the then Chief Judge of Ondo State on 11th of August, 2016, and was thereafter posted to Emure-Ile, Ondo State.
The claimant avers that she was served with a suspension letter dated 14th September, 2017 by the defendant despite not having been issued with a query or indicted for grievous misconduct, on an allegation of “perceived irregularities in her appointment”. The claimant also stated that the suspension was without pay and she was not given any opportunity to defend herself against the allegation levelled against her employment.
The claimant pleaded that she appealed to the Defendants to reconsider its decision, but rather than recalling her back to her position of Magistrate I, the Defendant served her with a Letter of Reinstatement back to Registrar Cadre, a development which she viewed as a demotion. She avers that her suspension and subsequent demotion to Registrar Cadre was malafide, and an unfair labour practice contrary to International Labour best practice.
Whereof the claimant claims against the defendant as aforementioned.
The Defendant’s case is that the Claimant was not duly appointed as a Magistrate by the Ondo State Judicial Service Commission.
The Defendant avers that by virtue of its enabling law i.e Judicial Service Commission Law, Cap 70 Vol. 2 Laws of Ondo State of Nigeria, 2006, it is the body empowered to appoint, promote, discipline and dismiss the Chief Registrar, Deputy Chief Registrars, Magistrates, Presidents and Members of the Customary Courts and all other members of staff of the Ondo State Judiciary. The defendant avers further that, the composition of the Defendant is as follows: the Chief Judge of the State, the Attorney General of the state, two (2) Legal Practitioners and two (2) non-legal practitioners as members. The Defendant further pleaded that all decisions by the Defendant are taken and implemented at the plenary session of the Defendant as one collective unit and not by an individual member.
The defendant stated the requirement of inter-cadre transfer as follows;
1, Applications must be made to the Defendant in accordance with the advertised positions, supported by the following documents:
Evidence of qualifications
Satisfactory Annual Performance Evaluation Report for two years immediately preceding the date of the application;
The applicant’s Record of Service showing clearly the career progression of the applicant, and
Recommendation that the applicant should be released if the application is successful.
The defendant stated that in its effort to sanitise the system of appointment in the State Judicial Service, which was brought about by the irregular and indiscriminate appointment of Magistrates and some senior staff in the Service between 2010 and 2016, some senior officers, including the claimant were suspended to allow the Defendant review and regularise the process of appointments. It was during this process that it was discovered that the appointment of the claimant was not done in accordance with the law and regulations guiding such, as it ran contrary to the Ondo State Judicial Service Commission Law and Regulations Cap. 70. Vol. 2 Laws of Ondo State of Nigeria, 2006 and the Ondo State Civil Service Rules and Regulations, 2006. The defendant stated further that it did not at any material time or by means ratify or adopt any waiver or special consideration for an internal employee or staff in an appointment as a Magistrate in the State Judicial Service.
The Defendant stated that the suspension of the claimant is not vindictive or discriminatory or in breach of right to fair hearing and the decision to reinstate her to the Registrar Cadre is not a demotion, but to regularise her appointment.
The defendant acknowledged that the Claimant is a bona fide staff of the Defendant and as such the recruitment advertisement posted by it specifying that only Indigenes of the state should apply is not discriminatory or targeted at the Claimant. The Defendant also filed a counter-claim which will be dealt with in the course of this Judgment.
Trial commenced in this suit on the 8th October, 2018 with the claimant testifying for herself as CW1 and the sole witness. The claimant adopted her witness statement on oath, further witness Statement on oath and tendered several exhibits which were admitted and marked as Exhibits M1– M18. The claimant was also cross examined.
The Defendants on the same day opened its defence and called Williams Adebisi Daomi, Secretary to the Defendant, as its sole witness and DW1, he adopted his witness Statement on oath and did not tender any exhibit, he was also cross examined. The Defence thereafter closed its case and the case was adjourned for the adoption of final written addresses.
The counsel for both parties adopted their final written addresses on the 20th of February, 2019, and the case was adjourned for Judgment.
The Defendant’s final written Address dated 19th November, 2018 and filed 22nd November, 2018, was adopted by H.M Falowo (ACLO) for the State at the hearing. In the Address, the Defendant formulated two issues for determination to wit:
Whether, considering the totality of the evidence placed before this Honourable Court, the Claimant has proved her claims?
Whether the Defendant has successfully proved its Counter-claim against the Claimant?
On issue one, learned State counsel submitted that considering the pleadings and the evidence placed before this Court, the Claimant has failed woefully to establish her claim to entitle her to a favourable judgment of this Court. Learned counsel submitted that it is trite that in every civil case, the primary duty lies on the Plaintiff/ Claimant, to prove her claim, she cited Sections 131, 132, 133, 134 and 136 of the Evidence Act, 2011 and submitted that weaknesses in the case of the defence will not derogate from the burden on the Plaintiff/Claimant to prove her case, and cited Nkwo v Iboe (1998) 7 NWLR (Pt. 558) 354 at 363; C.D.C. (Nig) Ltd v SCOA (Nig) Ltd (2007) 6 NWLR (Pt. 1030) 300.
In submitting further, counsel submitted that based on Exhibits M1, M2, M3 and M6, the claimant was appointed to the Registrar cadre as clearly indicated in the aforementioned exhibits, and the allegation that the suspension of the clamant is illegal, unlawful, ultra vires for failure to comply with due process, as captured in the claim is a declaratory relief, this she submitted cannot be granted without credible evidence and merely on account of default of defence or an admission. Counsel cited KWAJAFFA v B.O.N. LTD (2004) 13 NWLR (Pt. 889) 146 at 172. ; EGBUNIKE v MUONWEOKWU (1962) 1 ALL NLR 46 at 51, to support her submission.
Counsel went on to define the meaning of suspension and submitted that suspension is neither a termination of the contract nor a dismissal of the employee, it operates to suspend the contract rather than terminate the contractual obligations of the parties, and an employer retains the right to suspend an employee for the purpose of discipline or investigation, learned counsel thereafter cited several authorities on this issue and noted that the Defendant is empowered to discipline its staff by virtue of its enabling Law and the CFRN 1999(as amended).
It was submitted on behalf of the Defendant that, it had at no time considered any application for conversion of the Claimant or approved same from Registrar Cadre to Magistrate I on 29th March, 2016 at its plenary or meeting, and that the power of plenary is neither vested in the Chairman or any other member nor the Secretary of the Defendant, citing Section 12 of the Ondo State Judicial Service Commission Regulations.
In submitting further, learned counsel stated that the claimant in her evidence admitted that there was no advertisement of the vacancy to the position to which she was converted. DW1 also testified that the Claimant was appointed as a Senior Registrar, confirmed and promoted in the Registrar cadre and that the Claimant was not interviewed before her purported conversion from Senior Registrar I to Magistrate 1, neither was her conversion ratified nor adopted by plenary. The learned State counsel submitted further that the Secretary to the Defendant who issued the letter of conversion to the claimant do not have any mandate to appoint Magistrates or any other officer or staff of the Commission above grade level 07.
Learned ACLO referred the court to the case of Buhari v Yusuf (2003) 4 NWLR (Pt. 841) 446 at 492 and submitted that there can be no presumption of regularity to cure a deliberate contravention of statutory prescriptions or requirements.
In reaction to the claim for an order of court directing the defendant to pay the claimant the total sum of One Million, Five Hundred and Fifteen Thousand, five Hundred and Twenty Three Naira, Sixty Five Kobo (N1,515,523.65) Only, as salaries for the period of October 2016 to January 2017, counsel submitted that the Claimant is not entitled to receive any salary or allowance during the period of suspension. She strengthened her contention by citing the provision of Regulation 49 (2) of the Ondo State Civil Service Commission Regulations Cap. 31, Vol. 1, Laws of Ondo State of Nigeria, 2006 which provides that a Public Officer who is under suspension shall not, subject to the provision of Regulation 51 receive any salary during the period of suspension. She also submitted that the non-payment of salaries and allowances for October, November, December, 2016 and January, 2017 is not peculiar to the Claimant alone but to all workers in the service of the Ondo State Government and is not as a result of her being suspended. She submitted that the Claimant’s suspension came into effect on 14th September, 2017, thus her salaries for October, November, December, 2016 and January 2017 is outside the period of suspension.
On the relief for pre- and post- judgment interests, counsel submitted that in an employment with statutory flavor (as in the instant case), the amount of damages to be awarded is usually salaries and allowances owed the Claimant, except in respect of cases arising from occupational injuries or diseases.
Finally, learned counsel urged the Court to dismiss the suit in its entirety as it is lacking in merit.
Learned counsel for the Claimant, Nnamdi Anoka thereafter adopted his final written address dated and filed 12th December, 2018, wherein he formulated four issues for determination to wit:
Whether from the pleadings and evidence led in this case, the Claimant was appointed as a Magistrate of the Ondo State Judiciary by the Defendant?
Whether the Claimant’s subsequent suspension by the Defendant is illegal, unlawful and ultra vires for failure to comply with due process?
Whether the Defendant’s challenge of the official act of the Chief Judge of Ondo State is not caught by POPA?
Whether the Claimant is entitled to the reliefs sought before this Honourable Court and whether the Defendant/Counter Claimant is entitled to the claims sought in the Counter Claim?
On issue one, Counsel submitted that from the evidence adduced in this case, the Claimant was under the employment of the Defendant as a Magistrate.
Learned Counsel submitted that it is not in dispute that the Claimant was appointed by the Defendant as Senior Registrar II on the 28th February, 2013. He cited Exhibits M1, M2 and M3 and Exhibit M4 which he submitted attested to the fact that the Claimant was promoted to the post of Senior Registrar I on the 10th February, 2016. He stressed that Exhibits M1-M4 are all valid official documents which emanated from the Defendant and the authenticity of which was not in contention throughout the course of the trial. He submitted that the Claimant’s employment was later converted to that of Magistrate I vide Exhibit M5 which is a letter dated 30th March, 2016. The Claimant was subsequently administered with the Judicial Oath and Warrant to Empower Court vide Exhibits M13-M15 and posted to a magisterial district vide Exhibit M6. He submitted that DW1 confirmed all these facts under cross-examination, when he stated that:
“I have looked at Exhibit M5 and I confirm that it is a document of the Judicial Service Commission”.
Learned Counsel therefore submit that it is clear from the foregoing, that the fact that the Claimant was issued with a letter of appointment as a Magistrate by the Defendant is not in issue. He submitted that it is also a fact that the genuineness of Exhibits M1, M2, M3, M4, M6, M13, M14, M15 and particularly M5 were not also in any way disputed by the Defendant in the course of trial. However, he stated that the crux of the Defendant’s case against the Claimant is that her appointment/conversion as a Magistrate by the Defendant was irregular and did not follow due procedure. Learned counsel submitted that the legal import or significance of Exhibit M5 and to a lesser extent Exhibit M6, is captured by Section 168(1) & (2) of the Evidence Act, 2011 which provides that there is a presumption of regularity to a judicial or official acts, he cited ADIGHIJE V. NWAOGU (2011) ALL FWLR (Pt. 559) 1006 CA and argued that it is the party who wants to rebut a regularity that must lead evidence first, and argued that official acts is valid notwithstanding the policy position of subsequent
administrations. He cited LAFIA LOCAL GOVT. V. GOV. NASARAWA STATE (2012) 17 NWLR Pt. 1328 P. 142
Learned counsel for the claimant submitted that the Defendant’s assertion that the claimant stated under cross examination as follows; “… that she got wind of a vacancy through a friend …” was an attempt to lead fictitious evidence as the Claimant never stated this in her testimony or under cross-examination. In opposition to the Defendant’s argument that the claimant’s appointment was irregular because the vacancy was not advertised and the Claimant did not apply properly. He referred the court to Section 13(1) of the Defendant enabling law and Regulation, and argued that there are 2 (two) clear exceptions to the requirement for an advertisement, and they are;
Where vacancies are to be filled by persons already in the service of the judiciary
Where the commission otherwise directs.
Claimant’s counsel submitted that It was stated in Exhibit M5 that the Defendant, “at its plenary session held on 29th March, 2016 has approved your conversion to the post of Magistrate I GL 12…” and that this presupposes that the Defendant held a plenary session where the Claimant’s conversion was approved. The fact that Exhibit M5 emanated from the Defendant was also confirmed by DW1 under cross examination, arguing further that the Defendant did not show that the said plenary session did not hold.
He submitted that it is trite that documents speak for themselves. He referred the Court to the cases of BONGO V. GOV. ADAMAWA STATE (2013) 2 NWLR Pt. 1339 P. 444 Paras. A-B; UZAMERE V. URHOGHIDE (2011) ALL FWLR (Pt. 558) 839 CA and argued that Exhibits M1, M2, M3, M4, M5, M6, M13, M14, M15 and particularly M5 are all official documents of the Defendant, as this fact was never in contention, there was nothing irregular in the appointment and conversion of the Claimant as a Magistrate, citing EROMOSELE V. F.R.N (2017) 1 NWLR Pt. 1545 P. 108 – 109; and positing that the Defendant cannot benefit from its own irregularity. He also cited the following cases PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR 42563 (SC); AG RIVERS STATE V. UDE & ORS (2006) LPELR 626 (SC),
Learned counsel thereafter urged the court to resolve the 1st issue in favour of the Claimant.
On issue two, Counsel submitted that the Claimant’s suspension by the Defendant via Exhibit M7 is illegal, unlawful and ultra vires for failure to comply with due process. The Claimant averred that she never received any query from the Defendant either as a Registrar or a Presiding Magistrate before she was suspended. He submitted that the fact of the Claimant’s suspension is not in dispute, but if the Court agrees that the Claimant was validly appointed as a Magistrate by the Defendant, it would indeed not be difficult to hold that this alleged “re-instatement” of the Claimant to the position of a Registrar was indeed a demotion and an implied extension of the Claimant’s suspension indefinitely. Learned counsel canvassed the argument that the claimant was not given fair hearing on the decision to suspend her and therefore urged the court to hold that the Claimant’s suspension, without any query was without fair hearing and any decision thereon amounts to a nullity. Counsel added that the advertisement of vacancies vide Exhibit M17 made during the Claimant’s suspension reveals the Defendant’s intention to replace her before considering her case, and this is illegal, discriminatory, unlawful and ultra vires for failure to comply with the doctrine of natural justice, he urged the court to resolve this issue in favour of the Claimant.
On issue three, Counsel submitted that the Defendant’s case rested mainly on the contention that the official act of the Defendant, under the former Chief Judge of the State, on 30th March, 2016 was irregular. He argued that since official act of a public officer is protected by a limitation Law i.e Public Officers Protection Act, CAP. P41, LFN, 2004, which specifies three (3) months period within which an action can be initiated against a public officer, citing TIAMIYU V. OLAOGUN (2008) 17 NWLR Pt. 1115 Pp. 93-94; NWEKE V. UNIZIK, AWKA (2017) 18 NWLR Pt. 1598 Pp. 474-475; the counter-claim of the Defendant having occurred in 2016, is clearly outside the limitation period and is therefore statute barred, and should accordingly fail.
On issue four, counsel submitted that the claimant has established her entitlement to all her reliefs in this case, based on the evidence adduced as her employment is statutory flavoured and was not determined lawfully.
On the claim for general damages in the sum of ₦15,000,000.00 (Fifteen Million Naira) from the Defendant. It is the Claimant’s argument that the demotion of the Claimant by the Defendant is capable of ruining the Claimant’s career on the bench and did lower the Claimant’s reputation and dignity in the eyes of the public. He cited OKONKWO V. OGBOGU (1996) NWLR Pt. 449 P. 420 at 434 where the Court held that substantial damages may be awarded for an injury to a man’s dignity. He also cited N.B.C PLC V. ORESANYA (2009) 16 NWLR Pt. 1168 Pp. 582, and urged the court to hold that the Claimant was unfairly suspended and demoted by the Defendant without due process or fair hearing with the attendant injury to her personal dignity.
In conclusion, learned counsel urged the court to hold that the Claimant is entitled to the reliefs sought before this Court.
I have studied the processes filed by both counsel in this suit, listened to the witnesses called and studied the submissions of counsel in their final addresses and have thereafter come up with the following issues that will best determine this suit, to wit;
Whether or not the suspension of the claimant is unlawful or not.
Whether or not the Claimant was duly appointed as a Magistrate by the Ondo State Judicial Service Commission.
Whether or not the defendant is entitled to her counter-claim.
On issue one, It is the Claimants contention that she was unlawfully suspended by the Defendant, and was not issued with any query, neither was she offered any opportunity to defend herself before or during the said suspension.
The defendant on the other hand contended that it was due to the irregular and indiscriminate appointment of Magistrates and some senior staff in Ondo State Judicial Service between 2010 and 2016, that some senior officers, including the claimant were suspended to allow the Defendant review and correct any such irregularities.
In resolving this issue, the meaning of the word suspension will be examined, suspension has been defined to mean; to defer, interfere, interrupt, lay aside, temporize or hold in abeyance. It does not mean terminate, extinguish, or bring to an end. It is a temporary privation or deprivation of stoppage of privileges and rights of a person and a disciplinary procedure that can be for a fixed or indefinite period. See Mobil Producing Nigeria Unlimited v. Effiong [2011] LPELR-9055 (CA); Esiaga v. University of Calabar [2004] ALL FWLR (pt.206) 391; Longe v. First Bank of Nig. Plc [2010] All FWLR (pt.525) 259.
It is not in doubt that the Ondo State Judicial Service Commission Law and Regulations Cap 70 Vol. 2 empowers the defendant to:
“appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, magistrates, presidents and members of customary courts and all members of the staff of the judicial service of the state not mentioned in the Constitution”
Similarly, item 6(c) of the 1999 Constitution of the Federal Republic of Nigeria provides that;
The State Judicial Service Commission shall have power to
To appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this constitution.
Lord Denning in Lewis v. Heffer & Sons [1978] 3 All ER 254, pg 364 opined thus;
“Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending inquiries. Suspicion may rest on him; and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something may be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply.”
Omokri, J.C.A in Amadiume & Anor v. Ibok & Ors [2006] 6 NWLR (Pt.975) pg. 158 held thus;
“It is well settled law that a master can suspend his servant when necessary. An employer can suspend his employee when necessary. That cannot amount to the breach of the servant’s or employees’ right.
In Ayewa v. University of Jos [2000] 6 NWLR (Pt.659) 142. At page 144 Uwaifo, JSC, had this to say:
“the main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety levelled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view…”
Applying the above stated cases and constitutional provisions to the instant suit, can the Claimant’s suspension by the defendant be said to be unlawful? Authorities on this issue have long settled the issue that at the stage of suspension of an employee the doctrine of fair hearing or breach of same will not come to play, thus the claimant’s argument that she was not issued with a query or afforded an opportunity to be heard before her suspension is unsustainable. Although authorities also abound on the fact that, where at the end of investigation, if the allegation is found to be unjustifiable, the employee will be entitled to be remunerated for the period of the suspension. It is upon this premise that I find that the suspension of the Claimant by the defendant was well within its disciplinary powers and is therefore lawful. I so hold.
On issue 2, It is the Claimants contention that she was employed by the defendant as a Senior Registrar II on Grade level 10 step 1 on the 27th of February, 2013 and rose through the ranks to Senior Registrar I Grade level 12 on 1st January, 2016 and was subsequently converted to Magistrate 1 Grade Level 12 with effect from 1st January, 2016 by a letter dated March 30th, 2016 issued by the defendant. It is also on record that she was suspended on the 14th of September, 2017 and reinstated back to the Registrar cadre i.e. Senior Registrar I Grade level 12 by a letter dated 8th of November, 2017 issued by the defendant, on the basis of perceived irregularities in her appointment and that is the genesis of this suit.
The defendant on the other hand contended that appointments of staff to the State Judicial Service is regulated by and must be done in accordance with the laid down procedure in the Ondo State Judicial Service Commission Law and Regulations Cap. 70. Vol. 2, Laws of Ondo State of Nigeria, 2006.
It was DW1’s evidence that the Claimant was appointed and confirmed as a Registrar. He also testified that the Claimant was promoted in the Registrar cadre. On the claimant’s conversion to the Magistrate cadre, he claimed that the position to which the claimant was appointed was never advertised, and she was not invited for any oral or written interview before the purported conversion. DW1 gave further evidence that the Defendant did not at any of its plenary deliberate, adopt or ratify the purported conversion of the Claimant from Registrar I to Magistrate I on 29th March, 2016 to fill any vacancy for Magistrate in the State Judicial service. In response the claimant argued that based on the provisions of the Ondo State Judicial Service Commission Law and Regulations Cap.70, Vol.2, Laws of Ondo State of Nigeria, 2006, particularly Section 13 (1) and (2), the position need not be advertised for staff who are already in the system, and Exhibit M5 clearly states that her conversion was approved at the plenary of the Defendant of 29h March, 2016.
Under cross examination of DW1, when asked about the plenary session of 29th March 2016, DW1 replied thus;
I cannot remember the plenary session of 29th March, 2016
This response to me is not a categorical denial, and smacks of double speak as DW1 was speaking from both sides of the mouth, how can a public officer come up with this sort of response, it is either there was or there was not, it is the law that official acts are matters of public record, it is important to note that the defendants have not denied anywhere in the processes filed or record of proceedings the authenticity of Exhibit M5 tendered by the claimant i.e. the letter of conversion dated 30th March, 2016. The only issue the defendants have been insisting on is that due process was not followed in the conversion of the Claimant to Magistrate I. The Defendant had argued strenuously in its final address that at no time was the purported conversion of the claimant adopted or ratified by plenary, however it is the position of the law that address of counsel cannot take the place of evidence.
Under cross examination, DW1 when asked about Exhibit M5, replied
I have looked at Exhibit M5 and I confirm that it is a document of the Judicial Service Commission.
It is quite obvious from the foregoing that the burden of proof as to the conversion of the Claimant by the defendant via Exhibit M5 has shifted to the defendant.
It is also trite that pleadings can never serve as a substitute for evidence required to prove a fact unless such facts are admitted by the other party which is not the case herein. See UKACHUKWU v UZODINMA [2007] 9 NWLR (Pt. 1038) p. 167 at p. 181, paras. F – G; NSIEGBE v MGBEMENA [2007] 10 NWLR (Pt. 1042) p. 364 at Pp. 390 – 391, paras. H – B.
The law is that pleadings must go with evidence as they are Siamese twins in that one cannot be separated from the other, in other words pleadings must tally with evidence for it to have any value. See Iloabachie v. Iloabachie [2007] ALL FWLR PT.363; Ademoso v. Okoro [2005] FWLR PT.277, where it was held that;
“Averments in pleadings must necessarily be proved by evidence, except of cause, where they are admitted clearly by the other party….” See also;
LT.COL. Shehu Ibrahim (RTD) v. Mercy Ibrahim [2007] 1 NWLR (Pt.1015) pg. 383
In Kano v. Maikaji [2011] LPELR-4466 (CA) the court per Orji Abadua, J.C.A stated;
“it is the law that any party who desires judgment to be given in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, averments in pleadings must be proved by evidence unless admitted by the opposing party. If a party fails to do so then the party has not discharged the burden of proof. See A.G. Federation vs. A.G Abia state (No.2) [2002] 6 NWLR part 764 p.542. He who asserts must prove, and it is not the duty of the court to fill the gap that may exist in a party’s case if the party fails to adduce evidence to prove his case.”
In addition Section 131 & 132 of the Evidence Act provides as follows;
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. (Underlining mine for emphasis).
The Claimant placed before this court Exhibit M5 as proof that she was converted from Registrar to a Magistrate. The defendant on its own part denied that the conversion was ratified by its plenary. The question as to whether or not there was indeed a plenary on 29th March, 2016 would have helped to clear the issue on ground, but DW1 seemingly cannot remember the plenary of 29th March, 2016, this creates a serious doubt on the duty of the Defendant to rebut the content of Exhibit M5. DW1 was not categorical about whether the plenary held or not, but opted to give an evasive answer. The Defendant thereby failed to rebut the presumption of regularity created by Exhibit M5. The response of DW1 is surprising, knowing that the non-ratification of the conversion of the claimant by plenary is the core of the defendant’s case. In any case, this court is precluded from going on a voyage of discovery fishing for evidence for parties. See GHARIGHA V. GEORGE [2005] 1 NWLR (Pt.953) p.163; OGIDA V. OLIHA [1986] 1 NWLR (Pt.19) p.786
The law is trite that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. See Section 168(1) of the Evidence Act, 2011 and in NWEKE V. FRN 2016 LPELR 40948 CA OGUNWUMIJU JCA held:
“The law of presumption is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed its formal requirements have been complied with until the contrary is proved. The latin maxim puts it succinctly thus, OMNIA PRAE SUMUNTUR RITE ET SOLEMNITER ESSE ACTA DONEC PROBITEUR IN CONTMRIUM- [all things are presumed to have been legitimately done, until the contrary is proved.] See Sumanya Issah Torri v. National Park Services of Nigeria [2011] 7 SCNJ 17; [2011] 13 NWLR Pt.1264 Pg.152, Section 168 of the Evidence Act 2011”
It is also pertinent to note that the Defendant in this case had contended that the position of Magistrate I to which the claimant was converted was never advertised and therefore, her conversion was irregular and contravenes the laid down procedure and regulation. The claimant in response however argued that there was due compliance with the law and regulation guiding her conversion and cited copiously from the Defendant’s enabling law. A thorough perusal of Part IV of the Ondo State Judicial Service Commission Law and Regulations Cap.70, Vol.2, Laws of Ondo State of Nigeria, 2006 particularly Regulations 12, 13 and 16 which provides for the Appointment of Judicial Officers reveals as follows;
S12; “the Commission shall exercise supervision over and approve all methods of selection for appointment to the offices to which this part of these Regulations applies including the procedure of any Selection Board that may be constituted.
S13 (1); where vacancies are not to be filled by solely persons already in the service of the Judiciary, the public shall, unless the Commission otherwise directs, be informed by advertisement of the existence of such vacancies in time to enable candidates to make their applications.
(2)The Commission shall accord to the claims of meritorious officers in the Judiciary of the State to fill vacancies precedence over any comparable claims of the State unless the Commission otherwise directs in any particular case.
S16. The following provisions shall apply to the filling of a vacancy in an office to which this part of these Regulations applies;
a. As soon as it is known that a vacancy will occur or has occurred in the relevant office, the Chief Registrar shall on the direction of the Chief Judge communicate to the Commission in writing proposals regarding the filing of the vacancy. Such proposals shall indicate the methods to be employed in filling the vacancy and whether or not the vacancy should be advertised and if so, the recommended means of advertisement if other than publication in the Gazette of the various Governments of the Federation of Nigeria. Where necessary the Chief Registrar shall submit with proposals a draft advertisement. Where it is proposed that the Vacancy should filled by promotion within the judiciary or by transfer or secondment within the Judiciary, the recommendation to that effect in accordance with these Regulations in respect of a named person may be included in the proposal or made separately;
b. The Commission shall decide whether or not a vacancy shall be advertised and if the Commission decides that the vacancy shall be advertised, it shall arrange for the publication of the advertisement;
c. where a vacancy is advertised, the Commission may direct that a short list be prepared and submitted to the Commission for consideration.”
It can be distilled from the procedure above that the requirement of advertisement for staff already in the service of the commission is optional and is not necessary unless the commission decided otherwise. That is when the proposed vacancy is to be filled by promotion, transfer or secondment within the Judiciary, the recommendation to that effect in accordance with these Regulations in respect of a named person may be included in the proposal to be made by the Chief Registrar and decided by the Commission. I find therefore, that in the absence of cogent evidence to rebut the holding of the plenary of 29th March, 2016, and the proceedings, the presumption of regularity of the conversion of the claimant’s employment tilts in her favour.
The defendant submitted in the final address that the Secretary of the Defendant is not a member of the Defendant and his duties/functions are more of an administrative nature and does not include the appointment of Magistrates or any other officer or staff of the Commission above grade level 07, and therefore had no mandate to issue Exhibit M5. This fact was never in contention, a look at Exhibits M4 and M5 discloses the content as follows;
“Please be informed that the Judicial Service Commission at its Plenary Session held on 29th March, 2016 has approved your conversion to the post of Magistrate I GL 12 notionally with effect from 1/1/2016.
Please accept my Congratulations.”
[Sgd] Chief S.A Akinrinsola
Secretary
Exhibit M4 reads;
“Please be informed that the Judicial Service Commission at its Plenary Session held on February 9, 2016, has approved your Promotion to the post of Senior Registrar I GL 12 notionally with effect from January 1, 2016.
Please accept my Congratulations”
[Sgd] Chief S.A Akinrinsola
Secretary
It is noteworthy that Chief S.A Akinrinsola signed both letters as the Secretary to the Defendant at the material time. The defendant recognised and acknowledged Exhibit M4, but is discountenancing Exhibit M5, on the basis that the signatory to Exhibit M5 do not have the mandate to issue this letter, there is nothing in Exhibit M5 that remotely suggests that the Secretary appointed the Claimant as a magistrate, but it is evident from the letter that, rather, he merely communicated the decision of the plenary to the claimant as he did in Exhibit M4. I find that the signatory to Exhibits M4 and M5 who was the secretary to the commission at the material time, merely acted as a messenger to the Defendant and no more. I so hold.
On the assertion by the claimant that she was not given fair hearing before her “reinstatement” to the Registrar cadre. The evidence available in this case did not disclose how the Commission arrived at its decision to “reinstate” the Claimant to the Registrar cadre, and even worse still is that the Claimant by DW1’s admission was not given any opportunity to state her case in defence of the allegation against her employment.
It is on record that DW1 under cross examination stated;
I am not aware that there was any forum offered to the Claimant to explain her own side.
This admission in itself violates Section 36 of the CFRN 1999 and the Claimants right to fair hearing. See DEMSA L.G. v. JOKEMS NIG. LTD 2012 LPELR 20864 CA per DENTAN-WEST J.C.A.
“….the doctrine of fair hearing is an age long principle embodied in the natural justice principle of “Audi Alterem Partem” which literally means hear the other side. It is aright which gives parties to such equal opportunities of making representations in respect of the matter in contention. It is a constitutionally guaranteed right under section 36 of the 1999 constitution of Nigeria (as amended) and is therefore fundamental and sacrosanct in the determination of the civil right and liberties of parties to a dispute. In the case of Pam v. Mohammed [2008] 16 NWLR (Pt.112) at page 13 & 11, the Supreme Court held inter alia:- “The very sense of fair hearing under section 36 of the 1999 Constitution is a hearing which is fair to both parties to the suit be they Plaintiff or Defendants prosecution Or defence. The section does not contemplate a standard of justice which is based in favour of one party and to the prejudices of the other. Rather it imposes an ambidextrous standard of justice in which the court must be fair to both parties of the conflict….a party who will be affected by the result of a judicial inquiry must be given an opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal…”
There can be no fair hearing where one party to a case dominates the judicial process and uses that dominance to the oppression and detriment of the other party. See Nwora & Ors v. Nwabueze& Ors. [2016] LPELR-41014 (CA). The fact therefore, that the claimant was not afforded fair hearing ran contrary to the constitutional provision of fair hearing with the resultant effect that any decision based thereon is a null, void and of no effect whatsoever.
It is based on the above premise that I find from the preponderance of the evidence in this case that indeed the Claimant was converted from Senior Registrar I Grade level 12 to Magistrate Grade I Level 12 with effect from 1st January, 2016 and her reinstatement to the Registrar cadre is null and void. I so hold.
In line with the holding above, what is the remedy available to the Claimant in this case? In law the Court has a duty to order reinstatement in a case of any contravention in an employment guided by statute. See Adejemiwa v. Ogun State College of Education [2000] ALL FWLR (Pt.456) 11804.
The fact that the Claimant is in a statutory employment is not in dispute. This can be deduced from the fact that the Defendant owes its existence to the CFRN 1999, and its enabling law and Regulation i.e Ondo State Judicial Service Commission Law and Regulations Cap.70, Vol.2, Laws of Ondo State of Nigeria, 2006 It is the law that in a statutory employment, once the statutory procedure guiding the employment is not followed, the right order to make is an order of reinstatement, and the Claimant will be restored back to status quo, while damages by way of salaries and entitlement which accrued during the period of the unlawful act will be awarded. See the cases of Bassey v. A.G. Akwa Ibom State & Ors [2016] LPELR-41244CA; Odiase v. Auchi Polytechnic [1998] 4 NWLR (Pt 546) 477 CA; Baba v. NCATC [1986] 5 NWLR (Pt.42) 514 CA.
The mere fact that the claimant in this case was reinstated back to the Registrar cadre will not create an obligation on her where are contractual right has been breached See Okongwu v. NNPC [1989] NWLR (Pt.115) 296 where the Supreme court per Nnaemeka Agu, J.S.C held that
“the duty to mitigate does not imply that a plaintiff whose contractual right has been breached is automatically relegated to a position inferior to the defendant’s wherein he is obliged to pick up, as it were, the crumbs that fall from the master’s table. The true position is that a defendant who is already in breach of his contract, as it were, demanding a positive action from the plaintiff who is innocent of blame. For this simple reason, the law has never taken the view that such a plaintiff has to undertake an onerous burden in the name of mitigation of damages. The duty of mitigation on a plaintiff is that of a reasonable man, acting reasonably…”
The Defendant had argued that the claimant had in no way substantiated her claim that her “reinstatement” to the Registrar cadre was a demotion, however the evidence adduced revealed that the claimant clearly expressed her dissatisfaction with the decision to reinstate her to the Registrar cadre, which she viewed as a “demotion”. It is in evidence that after she was issued with the letter of “reinstatement” dated November 8th, 2017 by the defendant, the Claimant caused her solicitor to write the Defendant vide Exhibit M16 on the 20th of November, 2017 rejecting the directive to reinstate her as she viewed it a “demotion” and demanding to be reinstated within 14 days, failure upon which she will take legal action against the Defendant. The Claimant based on her grievance did not resume back in that office and she chose to ventilate her grievance by instituting this action in this court. It is obvious that the grievance of the Claimant is well documented as to entitle her to a remedy. The Claimant is therefore entitled to be reinstated to the position of Magistrate I GL12 in the employment of the Defendant without loss in rank and seniority or of salary, increment and promotion with effect from the 14th September, 2017 being the date of the purported suspension of the claimant by the Defendant. I so hold.
I will now go on to examine the other reliefs sought by the claimant in this case, the 1st claim is for a declaration that her suspension was null and void, having held that the Defendant was within its right to suspend any of its employee pending the outcome of any perceived infringement or investigation of an employee, this claim therefore fails for the reasons adduced above. I so hold.
On Claims 2 and 3. The claimant is seeking in claim 2 for an order reinstating the claimant to the position of Magistrate I in the employment of the Defendant without loss in rank and seniority or of salary, increment and promotion with effect from the 14th September, 2017 being the date of the purported suspension of the claimant by the Defendant, while Claim 3 is for an order mandating the Defendant to pay the Claimant all her arrears of full salary and allowances from 14th of September, 2017 to the date she is reinstated to the employment of the Defendant. It has been held earlier in this Judgment that the Claimant is entitled to be reinstated to Magistrate I, It follows that the Claimant is also entitled to be paid all her arrears of full salary and allowances from 14th of September, 2017 to date by the defendant at the rate of N140,614.48 per month as evidenced in her pay slip i.e. Exhibit M8. I so hold.
Claim 4 is for interest of 21% on the Claimant’s accumulated arrears of salaries and allowances from the 14th of September, 2017 till judgment is delivered and 15% interest until the judgment is complied with.
A claim for pre-judgment interest is one in which the Claimant must specifically claim and prove. See Berliet (Nig) Lt. V. Kachalla [1995] 9 NWLR (Pt.420) 478. it is also trite that for a pre-judgment interest to succeed, it must arise from the mutual agreement (contract) between the parties to the litigation or dispute that led to the litigation by the custom governing the transaction that brought the litigation, or by statute, or under a principle of equity such as breach of a fiduciary relationship before it may be claimed, proved and awarded by a court. See the unreported suit of UDEAGHA EGBE V. UNION BANK PLC & ANOR suit no: NICN/LA/244/2011 delivered on the 30th of January, 2015. Also by Order 47 Rule 7 of the NICN Rules, 2017 this Court is precluded from granting a pre-judgment interest. Thus, pre-judgment interest must be specifically proved by the applicant. Consequently, this claim fails.
Claim 5 is for the sum of N15,000,000.00 (Fifteen Million Naira Only) as general damages.
It is the position of the law that the only measure of damages available to an employee in employment cases is the accrued rights and salaries under the contract of employment. See EZEUDUKA V. ANMMCO & ORS [2016] N.L.L.R Part 225, Pg 123 NIC @ 142. Having awarded the Claimant his arrears of salaries, I find that the Claimant in this case is not entitled to any damages as it would amount to double compensation which is seriously frowned at by the Courts. I so hold.
COUNTER- CLAIM
The defendant counter- claimed against the claimant in this case by seeking the following orders;
WHEREOF the Defendant/Counter-Claimant’s claim against the Claimant are as follows:
A DECLARATION that the re-instatement of the Claimant to the Registrar Cadre is not a demotion but is an administrative means by the Defendant/Counter-Claimant to regularize her appointment to be in line with her Letter of Appointment dated 28th February, 2013 and Confirmation of Appointment dated 22nd June, 2015 as Senior Registrar II in the Judicial Service of Ondo State.
A DECLARATION that the reinstatement of the Claimant’s appointment back to Registrar Cadre conforms with the condition of the transfer of service of the Claimant to the Judiciary service of Ondo State and it is not in violation of the Claimant’s right to fair hearing or any right of the Claimant whatsoever.
A DECLARATION that the appointment of the Claimant as a Registrar is not a fresh appointment as there was no evidence that the Claimant followed due process of transfer from the Registrar cadre to the Magistrate cadre in the Judiciary Service of Ondo State.
A DECLARATION that all payments of salaries, allowances and other entitlements unlawfully received by the Claimant between January 2016 to September 2017 when she was irregularly appointed as a Magistrate is unlawful and recoverable from the Claimant as her appointment and right to these facilities were not procured by due process of law.
AN ORDER directing/mandating the Claimant to refund and pay to the Defendant/Counter-Claimant all salaries, allowances and other entitlements unlawfully received by the Claimant between January 2016 to September 2017 when she was irregularly appointed as a Magistrate unlawfully received by the claimant from November 2013 to November 2017 as her appointment and right to these facilities was not procured by due process of the law.
AN ORDER directing the Claimant to pay 21% interest on all salaries, allowances and other entitlements unlawfully received by the Claimant between January 2016 to September 2017 till judgment is delivered and 15% interest until judgment is complied with.
The claim against the claimant is predicated on the fact that she was appointed as a Senior Registrar on the 27th February, 2013 and was unlawfully converted as a Magistrate I on 1st of January, 2016, and having investigated and found that due process was not followed in her conversion to the Magistrate cadre, the defendant decided to reinstate her as a Registrar vide letter dated 8th November, 2017 (Exhibit M10), in arguing the counter claim learned state counsel H.M Falowo (ACLO) for the Defendant argued that as a Registrar, the claimant was not entitled to the salary, allowances and other financial entitlements of a Magistrate, therefore all payments, allowances and other entitlements unlawfully received by the claimant between January 2016 to September 2017 when she was irregularly appointed as a Magistrate is unlawful and recoverable from the claimant as her appointment and right to these facilities were not procured by due process of law. Learned counsel posited that it is the defendant’s counterclaim that the Claimant’s reinstatement to Registrar cadre is in tandem with the regulations guiding the service of the employment of the Claimant. They also seek a refund of all the sums received by the Claimant as Magistrate I with interest. On the counter-claim, Defence counsel submitted that it is trite that for all intents and purposes, a counter-claim is a separate, independent and distinct action. She cited Jeric (Nig) Ltd v UBN Plc (2000) 15 NWLR (Pt 447) at 463.
In her final address before this court H.M Falowo (ACLO) submitted that the central issue in the Defendants’ Counter-Claim is that the conversion of appointment from Senior Registrar II to Magistrate I without the knowledge, consent, authority and directive of the 1st Defendant/Counterclaimant is illegal, unlawful, null and void and of no effect whatsoever. The law is trite and well settled that a party will not be allowed to take benefit from an illegality. She cited Agbareh v Mimra (2008) 2 NWLR (Pt. 1071) 378 at 438-439; B.M.N.L v Ola Ilemobola Ltd (2007) All FWLR (Pt. 379) 1340 at 1380 paras D-E.
Learned counsel argued further that the law is also well settled that the Court will not grant an order for further payment of salary or financial benefits to an employee under an offending circumstance. She cited Agricultural and Allied Workers Union of Nigeria v Benue State Agricultural and Rural Development Authority (Digest of Judgments of the National Industrial Court) at Page 297.
She submitted therefore that the Claimant is not entitled to the salaries, allowances, imprest and other emoluments attached to the office of Magistrate Grade I, having being appointed as such without the due process of the law. Furthermore, she submitted that the payment of monthly salaries and allowances to the Claimant as Magistrate Grade I is illegal, unlawful and recoverable from.
Finally, counsel submitted that the Defendant have proved their Counter-Claim against the Claimant in this suit and urged the Court to so hold.
Nnamdi Anoka of counsel for the claimant in response to the counter-claim of the Defendant, submitted that the claimant was validly appointed by the Defendant as Magistrate 1 in the Ondo State Judicial Service, and as such is entitled to be reinstated back to that position, as her statutory employment was not lawfully determined.
I have studied the evidence and argument of counsel, both for and against the counter-claim, and I have resolved as follows; It is the holding of this court in the main Judgment that the Claimant’s conversion was proper and her reinstatement to the Registrar cadre was unlawful. This court has also held that the Claimant should be reinstated back to the position of Magistrate I GL 12. This is based on the reasoning expounded in the main Judgment. Consequent upon the above, I find that the defendant’s counterclaim has no basis and fails in its entirety. I so hold.
In conclusion, the Claimant’s Claims succeed in part and the defendants counterclaim fails in its entirety. For the avoidance of doubt, I hereby declare and order as follows;
That the suspension of the Claimant on the 14th of September, 2017 is lawful.
The Claimant is entitled to be reinstated to the position of Magistrate I in the employment of the Defendant without loss in rank and seniority or of salary, increment and promotion with effect from the 14th September, 2017 being the date of the purported suspension of the claimant by the Defendant.
The Claimant is entitled to be paid all her arrears of full salary and allowances from 14th of September, 2017 to date by the defendant at the rate of N140,614.48 per month i.e. Exhibit M8.
The claim for pre-judgment interest fails.
The Claimant’s claim as to damages fails.
I make no order as to cost.
Judgment is accordingly entered.
Hon. Justice A.A. Adewemimo
Judge
