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MR CLETUS UKUKONG -VS- MR BOBOYE O. OYEYEMI & Ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP:                                     HON. JUSTICE M. N. ESOWE

 

DATE: 6TH FEBRUARY, 2019                                   SUIT NO:NICN/CA/8/2017

BETWEEN              

MR CLETUS UKUKONG         ……                                                                            CLAIMANT

 

AND

  1. MR BOBOYE O. OYEYEMI

(The Corps Marshall, Federal Road Safety Commission)             DEFENDANTS

  1. THE FEDERAL ROAD SAFETY COMMISSION,

ABUJA, NIGERIA                                                                                                             

                                     

REPRESENTATIONS

OLIVER A. OSANG Esq for the Claimant

NSE EKPO Esq for the Defendants

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide an Originating Summons dated and filed 22nd February, 2017, raising the below questions for determination:

  1. Whether upon a calm and proper interpretation of Section 11 (5) of the Labour Act, 1971 and Paragraph E of letter of provisional appointment, the purported dismissal of a contract of employment of the Claimant’s appointment does not constitute an affront on the law
  2. Whether a calm and proper interpretation of the law, the purported termination of appointment of the Claimant is not in contrast to the Claimant’s fundamental right to fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
  3. Whether the Defendants can unilaterally and summarily terminate the appointment of the Claimant without due process
  4. Whether the Claimant’s employment enjoys statutory flavour and same being confirmed by the Defendant, Claimant can suffer summary dismissal without due process
  5. Whether in the purported termination of employment, the Claimant was involved in a criminal act and same tried by a competent Court or agent of the Defendants and found guilty as charged to warrant summary dismissal of the Claimant’s employment
  6. Whether Claimant is entitled to reinstatement to his employment including all financial benefits that accrued thereof during the wrongful termination of his employment
  7. Whether the Defendants can unilaterally without notice withheld Claimant’s salary from the month of September, 2016 before the purported termination of employment without notice stating the reason for their action
  8. Whether Claimant is not entitled to be given notice on any allegation against him and reason for his employer’s action against him during the course of his employment.
  9. Whether this Honourable Court is clothed with jurisdiction to order reinstatement of the Claimant’s employment with every financial benefit from the date Claimant’s salaries was illegally withheld till date
  10. Whether the Defendant is entitled to defend any allegation against him before the 1stDefendant
  11. Whether the process that led to the termination of the 1stDefendant’s agent took into cognizance the Claimant’s right to fair hearing.

 

Whereof the Claimant seeks the following reliefs:

  1. A DECLARATION that the purported termination of the Claimant’s employment by the 1st Defendant is illegal, wrongful, unwarranted, a gross violation of Section 11(5) of the Labour Act and Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
  2. A DECLARATION that the 2nd defendant’s letter dated 3rd November 2016 purporting to terminate claimant’s appointment is ultra vires, null and void and of no effect whatsoever.
  3. A DECLARATION that the claimant is still in the services of the 2nd Defendant.
  4. A DECLARATION   that claimant is not entitled to summary termination of his employment by the 2nd defendant.
  5. A DECLARATION that the  purported    termination    of claimant’s appointment  under  any  guise whatsoever  is   contrary to the provisions  of the  pension  Act  of Nigeria  in  that claimant is a permanent and pensionable staff of the 2nd defendant.
  6. A DECLARATIONthat the content- of any purported letter of appointment or any agreement whatsoever does not override the provisions of labour Act of Nigeria and pension Act.
  7. A DECLARATION that the purported termination of claimant appointment by the Defendants negates the fundamental   Rights of the claimant as provided by the 1999 constitution.
  8. A DECLARATIONthat it is unlawful for the 1stDefendant   to summarily terminate Claimant’s employment without due process
  9. A DECLARATIONthat the purported termination of the claimant employment by the   defendant does not follow due process as required by law.
  10. A DECLARATION that the purported withholding of the claimant salaries and other financial benefits from the month of September 2016 to date without notice or reasonable cause is illegal, unwarranted, ultra vires null and void.
  11. AN ORDERof this Honourable Court nullifying the purported termination of the claimant’s employment by an instrument dated 3rd   November 2016 and all other actions by defendant consequent upon the termination.
  12. AN ORDER of this Honourable Court directing the 2nd defendant, her
    agents, privies to reinstate the claimant to his employment.
  13. AN ORDERdirecting the 2nd defendant to pay arrears of the claimant’s salaries and other accompanied financial benefits accrued   forthwith to the Claimant from the month his salaries were illegally withheld to date.
  14. ANORDER of this Honourable Court restraining the Defendants by herself, agents, servant, through or by whosoever acting for her or on her behalf from further interfering with the Claimant employment.
  15. ANORDER of this Honourable Court directing the defendants jointly and severally to provide adequate responsibilities to the claimant throughout his employment.
  16. AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay the sum of five Hundred Million Naira (N500,000, 000.00) only as general damages for wrongful termination of the claimant’s employment and illegal withholding the claimant’s salary from the month of September 2016 to date and 10% interest of the judgment sum till fully liquidated.
  17. ANORDER of this Honourable Court directing the Defendants
    jointly and severally to pay the sum of Five Hundred Thousand Naira (N500, 000. 00) only as cost of this action.

 

SUMMARY OF FACTS

The Claimant, as can be gleaned from his affidavit in support of the Originating Summons, was employed in 1997 by the 2nd Defendant and had his employment confirmed in 2004. However, in September, 2016, Defendants stopped paying the Claimant his monthly salary without any reason whatsoever. This continued until 6th of December, 2016 when the Claimant received a letter dated 3rd November, 2016 purportedly terminating the appointment of the Claimant with the 2nd Defendant. It is on the ground Claimant has come to Court to seek redress.

 

On their part, the Defendants, as can be gleaned from their counter affidavit in opposition to the Originating Summons, while admitting that Claimant was employed in 1997 but had his appointment in 2016, maintains that the termination of the appointment of the Claimant was done in accordance with the law. That sequent to the termination of the appointment of the Claimant, a lot of queries were issued to him; a panel was also set up to which the Defendant was invited to the headquarters, Abuja, to defend himself. That the termination of the appointment of the Claimant arose from abscondment and desertion from work.

 

On receipt of the Defendant Counter Affidavit, Claimant filed a better and further affidavit stating that he only received one query from the Defendants which he responded to and all other queries referred to by Defendants are concocted queries as they were never served on him.

 

 

 

COMMENCEMENT OF HEARING

Hearing in this suit commenced on 12th April, 2018 to which parties adopted their processes before the Court.

 

CLAIMANT’S WRTTEN ADDRESS IN SUPPORT OF THE ORIGINATING SUMMONS

In Claimant/Applicant’s dated 22nd February, 2017  and filed same day, Learned Counsel on behalf of Claimant/Applicant formulated five (5) issues for determination, that is:

  1. Whether the Claimant is entitled to the reliefs sought from this Honourable Court.

 

  1. Whether the purported termination Claimant’s appointment by Exh. A 03 is in consonant with Section 11(1 – (5) of the Labour Act or paragraph E. of Exh A. 01 and the Nigeria Reform Act, 2004

 

  1. Whether the 1st Defendant can unilaterally terminate the appointment of the Claimant summarily without due process even when the said appointment has been confirmed by the 2nd Defendant

 

  1. Whether the Claimant was involved in any criminal act arising from fraud and was formally tried by the Defendant’s agents and was found guilty to qualify the 1st Defendant to summarily terminate his employment without benefits

 

  1. Whether the withholding of Claimant’s salary(s) and other financial benefits that accrued therein from the month of September, 2016 without notice before the purported termination of Claimant’s appointment is right in law.

 

ARGUMENT

ON ISSUE 1, 2 AND 3

Learned Counsel, while arguing issue 1, 2 and 3 together, submitted that the purported termination of the employment of the Claimant runs against Section 11 (1) – (5) of the Labour Act. That the law regulating employment provides for procedure in the termination of employment with statutory flavour. In the case herein, the Claimant was not served any notice prior to the termination of his appointment. He relied on Bernard Ojeifo Longe V. First Bank of Nigeria Plc (2010) Vol. 2-3 MJSC Pg 128 @134 where the Court held that when the law vests a right on a citizen, a Court of law will resolutely resist any attempt and whatever method to deny the citizen the enjoyment of the right conferred by the law.

 

It is the submission of Learned Counsel that by breaching the right of the Claimant as to one month notice as provided in the Labour Act before the termination of his employment, the termination is null and void.

 

Learned Counsel to Claimant submitted further that Defendants breached the Claimant’s right to fair hearing in the way and manner his employment was terminated and that such breach raises a very serious issue. He relied on Alhaji Muhamadu Maigari Dingyadi & Anor V. INEC & 2 Ors (2010) Vol. 6 – 7 MJSC Pg 1 @Pg 8 where the Supreme Court held:

The right to fair hearing is a fundamental constitutional right guaranteed by the constitution of the Federal Republic of Nigeria, 1999 and a breach of it, particularly in trial, vitiates such proceedings rendering same null and void.

 

It is the submission of Learned Counsel that flowing from the decision of the Supreme Court above, the proceedings, if any took place against the Claimant, are ultra vires inasmuch as the Claimant was not informed of the allegations against him not put on notice to afford him the opportunity of defending the allegations against him.

 

Learned Counsel submitted further that the onus is on the employer to justify that the purported termination is done in accordance with the rule of fair hearing and the employer believed that the employer committed the alleged offence. That in the case of Oloruntoba-Oju V. Abdul-Raheem (2009) Vol. 6 MJSC Pg.1 @ Pg. 9, the Supreme Court stated the requirements of natural justice in the termination of appointment as follows:

  1. The complaint must be brought to the notice of the person
  2. He must be given an opportunity of making representation in person to the council on the matter.

 

It is the submission of Learned Counsel that failure to observe the rule of natural justice in the termination of Claimant’s employment by the Defendants makes the termination a nullity.

 

Learned Counsel submitted that the Claimant is a pensionable staff whose employment is covered by the Pension Act, 2004 and as such part of his salary was deducted for pension towards his retirement. Learned Counsel therefore posed the question that given the termination, what becomes of Claimant’s savings in the pension scheme? That this Honourable Court cannot sustain the illegality perpetrated by the 1st Defendant to deny Claimant the blessings of Section 7 of the Pension Act, 2004

 

ON ISSUE 4 AND 5

Learned Counsel, while arguing issue 4 and 5 together, submitted that from the evidence adduced in this case, at no time was the Claimant engaged in criminal act during his employment. That the Claimant’s employment is one with statutory flavour and as such, it is put over and above the ordinary master and servant relationship. Therefore, in the event that the employment is terminated wrongly, the Court has the power to order reinstatement. He relied on Ifeta V. Shell Pet. Devt Co. Ltd (2006) 7MJSC Pg 121 @124.

 

On the withholding of Claimant’s salary from the month of September 2016 without due notice, Learned counsel submitted that this is barbaric and an illegality intended to overreach the Claimant.

 

He therefore urged the Court to set aside the termination and reinstate the Claimant.

 

DEFENDANTS/RESPONDENTS’ WRITTEN ADDRESS IN OPPOSITION TO CLAIMANT/APPLICANT’S ORIGINATING SUMMONS.

In Defendants/Respondents’ address in opposition to Claimant/Applicant’s originating summons dated 28th April, 2017, Learned Counsel on behalf of Defendants formulated a sole issue for determination, that is:

Whether this Honourable Court has the jurisdiction to entertain and determine the Claimant’s suit which has raised substantial issues and dispute of facts vide an Originating Summons.

 

ARGUMENT

In their argument of the main issue, Learned Counsel also addressed the following issues which Counsel to Defendants termed as legal flash points:

(i)               Can this Honourable Court interpret calmly interpret Section 11(5) of the Labour Act 1971 and paragraph E of the letter of Provisional Appointment, the purported termination of appointment as constituting an affront to the law without it raising substantial issues and dispute of facts as related to the Claimant’s Relief 1.

 

(ii)            Can   this   Honourable   Court   interpret   the   law   surrounding   the termination   of   appointment  of  the  Claimant  as  a  breach  of   his fundamental human rights without it reliance and application to the    circumstance  of  the  Claimant’s  case as  related  to the

Claimant’s Relief 2.

 

(iii)           Can this Honourable Court hold that the Defendants did not comply with due process in terminating the appointment of the Claimant as related to the Claimant’s Relief 3

 

(iv)          Can this Honourable Court hold that the Claimant’s employment with the Defendant is one with statutory flavour as related to the Claimant’s Relief 4.

 

(v)             Whether  this  Honourable  Court  can  hold  that  the  Claimant  was involved and tried for a criminal Act by a competent court as contained in relief 5

 

(vi)          Can this Honourable Court hold that Claimant be reinstated to the Defendant’s employment and all financial entitlement paid during the period he was terminated as related to the Claimant’s relief 6

 

(vii)        Can this Honourable Court hold that the Defendants can unilaterally stop the Claimant’s salaries from September,2016 before he was terminated without adducing substantial issues and dispute of facts as related to the Claimant’s Relief 7

 

(viii)     Whether this Honourable Court can hold that the Claimant was not given sufficient notice of the allegations against him during the course of his employment as related to the Claimant’s Relief 8

 

(ix)           Is this Honourable Court vested with the jurisdiction to order reinstatement of the Claimant with every financial benefit withheld till date as related to the Claimant’s Relief 9

 

(x)             Can this Honourable Court hold that the Claimant was not entitled to defend the allegation against him by the 1st Defendant as related to the Claimant’s Relief 10.

 

(xi)           Can this Honourable Court hold that the Claimant’s termination of appointment by the 2nd Defendant is a breach of his fundamental right to fair hearing as related to the Claimant’s Relief 11.

 

Learned Counsel submitted that the Originating Summons of the Claimant is predicated on Section 11(5) of the Labour Act 1971. However, the interpretation of Section 11(5) of the Labour Act, 1971 cannot be read alone without placing a heavy reliance on the Federal Road Safety Corps (Establishment) Act, 2007; FRSC Regulation on Maintenance of Discipline 2013 and the facts which culminated into termination of Claimant’s appointment. The literal meaning of what the Claimant intends in this suit is the seeking of an interpretation of Section 11(5) of the Labour Act and paragraph E of his Appointment letter and also the application of the findings to the facts surrounding his purported termination of appointment. However, the Reliefs sought by the Claimant cannot be
entertained by him vide an Originating Summons on the following premise:

(i) Paragraph E of the Claimant’s appointment letter is a clause derived from the terms and conditions of FRSC, the FRSC Establishment Act, 2007, FRSC Regulation on Maintenance of Discipline 2013 and other applicable laws and regulations of the Defendants and as such, Section 11(5) of the Labour Law Act cannot be given a narrow interpretation without extending to above mentioned laws of the Defendants. Suffice to say that the extension of its interpretation to include the other applicable laws of the Defendants will raise substantial issues and dispute of facts.

(ii) That analysing the construction of the Claimant’s relief is pretentiously misleading this Honourable Court into applying the purported calm reading into the facts surrounding his termination of appointment which would involve the public demonstration of facts and evidence as well as the testing of oral evidence.

 

Learned Counsel referred Court to paragraphs11,12,13,14,15,16,17,18,19,20,21,22,23,24 and 25of the Defendants as well as paragraphs of the Claimant affidavit in support of the Originating Summons. It is the position of Learned Counsel that this Honourable Court cannot interpret Section 11(5) of the Labour Act independently without delving into the substantial issues and dispute of facts     that     will     arise     from     this     suit. That it was held in Osuagwu V. Emez (1998)12NWLR (Pt.579)640 as follows:

Originating Summons is used only when the facts of a case or matter is not likely to be or in fact are not disputed. In other words, it is to be used for non-contentious action, or not hostile proceedings.

 

Learned Counsel therefore urged the Court to resolve this issue in favour of the
Defendants and hold that the Claimant’s question for determination in Relief 1
is contentious, hostile and contains substantial issues

 

On the 2nd question raised for determination by the Claimant, Learned Counsel argued that the question sought for determination by the
Claimant is one that borders on the calm interpretation of the Section 11(5) of the
Labour Act to the facts and circumstances surrounding the termination of his
appointment and also applying the result of the determination to ascertaining if it
is in contrast with his fundamental human rights. Claimant’s question for determination before this Honourable Court does not relate only to interpretation but transcends an interpretation to an application. That this suit runs contrary to the provisions and intendment of Order2 Rule2 of the National Industrial Court (Civil Procedure) Rules of Nigeria 2017 on action to be commenced by Originating Summons as such  the commencement of this suit cannot be maintained by an Originating Summons but by a Complaint as stipulated by law.

 

On the 3rd question raised for determination by the Claimant, Learned Counsel, while referring Court to paragraphs 11,12,13,14,15,16,17,18,19,20,21,22,23,24 and 25 of the Defendants’ defence; Exhibits FRSC 1-7 by the Defendants; Section 5(e) of the Federal Road Safety Corps (Establishment) Act, 2007, submitted that Claimant was investigated pursuant to the following provisions of the
Federal Road Safety Regulations of Maintenance of Discipline, 2013.

(i) Regulations 5(a):

Any member of the Corps who:     .

(a) Absents himself from duty without official leave or pass for more than twenty-one(21) days shall be guilty of desertion and liable to termination of appointment.

 

(ii) Regulations 23(a):

Any member of the Corps who:

(a) Makes false accusation against another member of the Corps shall be guilty of gross misconduct and liable to termination of appointment.

 

(iii) Regulation 24(b)

Any member of the Corps who:

(a) In any manner shows defiance to authority, disobeys any lawful command given to him or sent to him, shall be guilty of misconduct and liable to Major entry.

 

Flowing from the foregoing, Learned Counsel urged the Court to hold that the Defendant followed due process in effecting the termination of the Claimant.

 

On the 4th question raised for determination by the Claimant, Learned Counsel submitted that from the face of the employment letter of Claimant, it is not contained anywhere that the Claimant’s appointment is clothed with statutory flavour. That an organisation or authority is a creation of statute does not necessary mean that all its employees enjoy the status of employment with statutory flavour. The Court must confine itself to the terms of contract of service between the parties which provides for their rights and obligations. Learned Counsel relied on IDONIBOYE -OBU V N.N.P.C(2003) 2 NWLZ (PT 805) 589 at 620 where the Court held:

The mere fact an organisation or authority which is an employer is a statutory body does not mean that the conditions of service of its employees must be of special character which makes the employment one with statutory flavour

 

It is the submission of Learned Counsel that the Claimant has not been able to state in his pleading or adduce any evidence to show that his appointment is one clothed with statutory flavour.

 

On the 5th question raised for determination by the Claimant, Learned Counsel submitted that the Claimant was involved in a criminal act and same tried by a competent Court or agent of the 2nd Defendant and found the Claimant guilty as charged to warrant summary dismissal of the Claimant’s employment. Claimant was under an administrative investigation for misconducts contrary to FRSC Regulation on Maintenance of Discipline, 2013 which is   a   subsidiary    legislation    of    Section    5    of    the    Federal    Road Safety Corps (Establishment) Act 2007. Due process was also followed in terminating of the appointment of the Claimant from the service of the Defendant in compliance with the extant laws and procedures operational in the Defendants organisation.

 

On the 6th question raised for determination by the Claimant, Learned Counsel adopted the argument in the paragraph above.

 

On the 7th and 8th questions raised for determination by the Claimant, Learned Counsel argued that the Defendants acted in accordance within their statutory powers as contained in the FRSC Regulation on Maintenance of   Discipline   2013   in   investigating the Claimant for the alleged misconduct   he   had   committed   which   eventually   led   to   his   termination. That  Claimant was, on the strength of the observation of DRC Obot who  was  assigned  to  audit  staff  at  the  Claimant’s  command, invited to the Defendants  Corps  Intelligence  Office at  its  National  Headquarters which he honoured and was being interrogated but along the line he absented himself from the   investigation.   He   however   made   a written   statement   on   what   he   knew pertaining to the allegations made against him from DRC Obot in EXHIBIT FRSC       On 14th May, 2015. Claimant’s recall to the Defendants National Headquarters as well as his written statement is an indication that he was aware of a notice and has indeed been notified of the misconduct he was investigated for. That Claimant’s salary was stopped because it was discovered
that the Claimant had been receiving salary without going to work. This position is supported by the Regulation 24(a) which empowers the Corps to make a lawful order which a member of the Corps is expected to comply with.

 

Learned Counsel therefore urged the Court to hold that the Defendant complied with the procedures in stopping the Claimant’s salary.

 

On the 9th, 10th and 11th questions raised for determination by the Claimant, Learned Counsel submitted that this Court cannot effectively adjudicate over a positive answer to these questions without calling for an exchange of oral evidence between the parties.

 

 

CLAIMANT’S REPLY ON POINT OF LAW

On receipt of Defendant’s process in opposition to their process, Claimant filed a better and further affidavit with a reply on point of law dated 3rd July, 2017 and filed 5th July, 2017 to which he responded on point of law to Defendants’ submission on the mode of commencing this action as well as on the submission of Defendants that this suit is statutorily barred.

 

COURT

Having gone through the process of the Claimant, Defendants’ process, arguments by Counsel to the Claimant and Counsel to the Defendants, and after a proper evaluation of the evidence adduced before this Honourable Court, this Court has distilled a sole issue for the just and proper determination of this suit, to wit:

Whether the termination of the Claimant was done in compliance with the laid down rules governing the employment of the Claimant.

The crux of the case of the Claimant is that the procedure which led to his eventual termination was fraught with irregularities and was done in breach of his contract of employment, the Labour Act and the constitution of the Federal Republic of Nigeria, 1999 as amended.  On their part, the Defendant, while maintaining that the Claimant’s employment was terminated in line with due process, went on to say that the employment of the Claimant is not one with statutory flavour. Defendant also went to argue on the mode of instituting this case, that Originating Summons, and that also that the suit has been caught up by statute of limitation. This Court has already in well considered ruling dated 6th December, 2017 resolved the issues of statute of limitation and the mode by which this action was commenced. It will therefore amount to repetition for the Court to still address the issue of the mode of commencing this suit and the issue of statute of limitation as it applies to this case. Therefore, in this judgment, the Court will limit itself to the issue of whether the Claimant’s employment is one that enjoys statutory flavour as well as whether the Defendants followed the principle of fair hearing and natural justice in the procedure leading to the termination of the Claimant’s appointment.

 

Granted, the Federal Road Safety Corps is a creation of statute but, as rightly argued by the Defendants’ Counsel, not everybody in the employment of an institution established under a law can be said to be in an employment with statutory flavour. The Court is therefore bound to look at the nature of employment if it actually qualifies or intended to be an employment with statutory flavour. The settled law is that the onus lies on the person alleging breach of contract to prove the existence of the terms and conditions of his contract and how such terms were breached. See Obelema K.N Briggs V. Ibinabo Harry & 2Ors (2016) 9NWLR (Pt.1516) 45 @ 50 -51 where the Court held:

In an action where a party seeks declaration that the termination of his employment was wrongful, null and void, the aggrieved party must aver the condition of service as a cardinal point in his pleadings and adduce evidence before the trial Court on non-compliance with the terms of the condition of service in effecting the termination of his employment.

 

In the instant case, the onus lies on the Claimant who is alleging that due process was not followed in the termination of his appointment to prove that his employment enjoys statutory flavour. On the employment of the Claimant, the Claimant pleaded exhibits attached as Exhibit A.01 and Exhibit A.02. Exhibit A.01 dated 10th December, 1997 and addressed to the Claimant is the employment letter of the Claimant titled PROVISIONAL OFFER OF APPOINTMENT. On the other hand, Exhibit A.02 dated 19th May, 2004 and addresses to the Claimant is the letter confirming the employment of the Claimant titled CONFIRMATION OF APPOINTMENT. In paragraph I of Exhibit A.01, Claimant’s letter of appointment, it is stated thus: Until our new condition of service is produced, you will enjoy all provisions in the Federal Public Service. The import of paragraph E of the letter of employment confirms that the employment of the Claimant was intended and indeed an employment which enjoys statutory flavour in which in the absence of any regulations by 2nd Defendant, the Public Service Rules apply, mutatis mutandis, and I so hold. Therefore, the rule of natural justice and fair hearing as applicable to employment with statutory flavour avails the Claimant in this case.

 

As touching on the age long principle of fair hearing and natural justice, the Supreme Court held in Otapo VS Sunmonu (2011) ALL FWLR (PT. 576) PG. 419 © Pg. 433 Rat. 4 as follows:

The principles of natural justice are part of the pillars that support the concept of the rule of law. They are indispensably part of the process of adjudication in any civilized society. The twin pillars on which they are built are the principle that one must be heard in his own defence before being condemned and no one should be judge in his own.

The essence of the principle of fair hearing is to the effect that the person accused must be given an opportunity to be heard before any decision touching on his right is reached. This is the whole essence of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended which among other things presumes the accused innocent until proven guilty. In the instant case, while the Claimant contend that he only received one query which he responded to, Defendants contend that series of queries were issued to the Claimant. Moreso, whereas the Claimant states that he was invited to Abuja once to which he went to clear himself of the allegation against him, Defendants contend that series of panels were set up in which Claimant did not attend because he absconded from work. In any event, the law is settled that when anybody has been offered the opportunity of fair hearing, if he fails to utilize the opportunity to be heard, he cannot turn around to complain that his right to fair hearing was breached. Therefore, in the instant case, the Court is bound by the evidence before it to determine if such opportunity was offered the Claimant and the Claimant chose not to utilize same. With regards to the query letter dated 26th August, 2013 pleaded by the Defendants and marked as Exhibit FRSC 1 which the Claimant contends that that is the only query letter he received, there is evident of receipt from the face of the letter as it is written on the face of the letter original copy collected by me. However, there is no acknowledgment or evidence of receipt of Exhibits marked by the Defendants as FRSC 6 (letter of query addressed to the Claimant dated 21st May, 2015); Exhibit FRSC 5 (letter of query addressed to the Claimant dated 24th March, 2015); Exhibit FRSC 4 (letter of query addressed to the Claimant dated 19th February, 2015); Exhibit FRSC 2 (letter of query addressed to the Claimant dated 30th September, 2014); Exhibit FRSC 3 (letter of query addressed to the Claimant dated 12th November, 2014. The import from the foregoing is that from 7 letters of query alleged to be issued against the Claimant, only one has evidence of acknowledgement that it was received by the Claimant. The other 6 have no evidence of receipt. Given the circumstances, the Court cannot agree more with the Claimant that it was indeed just one query he received from the Defendants. Another evidence exhibited by the Defendants is a document titled Summary proceeding of D CR A Ukukong with Pin C-0011912 for Awol at the instance of the UC R.56 21 Ogoja Unit Command Held on 31st March, 2015; Re: An FDP Convened by CM to investigate the case involving ACC NAgbe G. Joseph and DRC Ukukong Cletus of R56.21 Ogoja Unit Command dated 29th June, 2016; Re: An FDP Convened by CM to investigate the case involving ACC NAgbe G. Joseph and DRC Ukukong Cletus of R56.21 Ogoja Unit Command dated 14th October, 2016. In all of these panels, there is no evidence that Claimant was invited. I took a keen look at the letter dated 18th November, 2015 titled- APPEAL AGAINST FDP’S RECOMMEDATION OF TERMINATION OF MY APPOINTMENT BROUGHT PURSUANT TO SCHEDULE 3 OF THE FRSC REGULATIONS ON MAINTANANCE OF DISCIPLINE, 2013, addressed to the Corps Marshall and Chief Executive, Federal Road Safety Corps, National Headquarters, Maputo Street, Wuse, Zone 3, Abuja. The said letter was allegedly written by the Claimant and it was attached by the Defendants as part of their exhibits to their Better and Further Affidavit deposed to on 29th January, 2018. The said letter is type-written. I compared the signature on the said letter with the Claimant’s signature on the affidavit deposed to by the Claimant before this Honourable Court dated 27th February, 2017; Claimant’s signature on the affidavit deposed to on 5th July, 2017 and the signature of the Claimant on the acknowledgment on the receipt of the query letter dated 26th August, 2013. Whereas the signature of the Claimant in his depositions before this Honourable Court are one and same as the one on the acknowledgement on receipt of the query letter dated 26th August, 2013, same cannot be said with the signature on the alleged letter dated 18th November, 2015 referred to above. Given the circumstances, the Court cannot help but say that it cannot attach any value or weight to a document coming from the Defendants that has a signature different from Claimant’s signature on his depositions before the Court, and I so hold. Especially when the signature of the Claimant in his acknowledged receipt of the query letter dated 26th August, 2013 is one and same with the signature of the Claimant in his depositions before the Court, it is the view of this Honourable Court that a document emanating from the Defendants purportedly signed by the Claimant ought to have same signature with the signature of the Claimant on his depositions before the Court and the one on his acknowledged receipt of the query letter dated 26th August, 2013. If on four documents before the Court, Claimant’s signature on three are same, the only conclusion the Court can come to, except proven otherwise, is that the number four document which has a different signature is not the handiwork of the Claimant, and I so hold.

 

I have also read the termination letter which states no reason for termination other than your services no longer required. Even if the termination letter was on the recommendation of any of the panels set up to investigate the series of allegations against the Claimant, it is a matter of common sense that the termination letter ought to have made reference to such recommendation. Furthermore, since the termination letter is in 2016, one would have expected that a termination arising from a query issued in 2013 or any previous year before the termination in 2016 would make reference to such query and the offence as stated in the query. In all fairness to the Defendants, they seem like somebody who has done something wrong and he is now in a desperate move to save his skin as well as cover up for his wrong. The dictum of Tobi JSC of blessed memory in Egesimba V. Onuzuruike (2002) 15NWLR (Pt.791) 466 @520 – 521 comes to mind. In the said case, he stated thus:

Litigation is not a game of smartness but one in which the parties must not cunningly but decently and overtly place their cards on the table of justice for the purpose of measuring where the pendulum really tilts. Justice in its total practical sense is truth in action and the Court has a duty to search for the truth and find it. Justice is not built on technicalities or caricature.

In this vein, the Court will like to add that it is better for parties to make peace with whomever they have offended because once the matter is sub judice, the Court will not have any regards for document forged by one party to score cheap point over the other party. This is moreso because in the evaluation of evidence before it and as well as in its search for the truth, the truth will always prevail and every lie will yield for the truth.

 

For all it is worth, it is a brazen arrogance on the part of any employer to throw away 19 years of the services of an employee with a termination letter that gives no reason other than Services no longer required as if the employment is a master – servant employment where the employer can fire at any time with or without reasons. It is apposite for this Court to state here and now that employment with statutory flavour cannot be terminated on the ground of services no longer required because of the job security and permanence enjoyed by workers under this category. As such, if an employment with statutory flavour is to be terminated, the laid down procedure leading to such termination must be followed and the punishment of termination should not be seen or be as such that is greater than the punishment provided for the offence. It is to this intent their Lordships of the Court of Appeal held in OGIEVA VS. IGBINEDION (2005) ALL FWLR (PT. 260) PG. 85. © PG. 87  as follows:

 

Where a statutory requirement for exercise of a legal authority is laid down, it is expected that the public body invested with the authority would follow the requirement to details.

 

The non-observance in the process of reaching its decision renders the decision itself a nullity. In other words, when a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such procedure must be strictly followed.

 

From the foregoing, any procedure or punishment other than the one specified in the law is liable to be set aside by the Court and declared null, void and of no effect whatsoever. In the case herein, therefore, the termination should be as a result of the contravention of the rules by the Claimant and such rules must also state the punishment for such contravention. The question therefore is – Is there any rule as “Services no longer required?”  Except the Defendants are saying that the Claimant contravened a rule known as services no longer required, I see no reason Defendants will terminate the statutory employment of the Claimant on the ground of services no longer required. Incidentally, of all the rules and regulations of FRSC referred to by Counsel to Defendants, I find no such provision. From the evidence before this Honourable Court, there is no way the Court can reconcile all the queries referred to by the Defendants with a termination letter stating nothing other than services no longer required, and I so hold. There is no nexus between the letters of query and the termination letter. In a world where calling a dog a bad name for the purpose of hanging it is prevalent, we must not lose sight of the fact even God the creator of the universe who sees all things gave Adam the opportunity to defend himself and he extends same to all of us when he already knows our wrong. Therefore, for mortal men who are playing god in the lives of their fellow mortal men, I urge that they take a cue from God Almighty and give any accused person the opportunity to speak in his defence before any decision affecting the right of that accused is reached. Whatever the accused say may perhaps change or not change the punishment. However, it might change the mind and perception of others on what they initially thought to be the true situation.

 

On the application of the Labour Act to the circumstances of this case, parties kept on referring the Court to the Labour Act of 1971. This Court wishes to state that the Labour Act, 2004 has repealed any previous Labour Act. The transaction in question occurred in 2016 and not in the seventies. Therefore, by application, it is the extant Labour Act, 2004 that applies to this transaction and not the Labour Act, 1971. In this vein, this Court is not bound by the Labour Act, 1971 but the Labour Act, 2004 in deciding this case. Section 11(2) of the Labour Act, 2004 provides for period of notice to be given in termination of appointment. In the case herein, there is no evidence of notice or salary in lieu of notice. I must say that there are a whole lot of things wrong with the way and manner the employment of the Claimant who has put in 19 years of service was terminated.

 

On suspension without salary, whereas it is the case of the Defendant that the Claimant was placed on suspension without salary for three months before the termination, the case of the Claimant is that he was not placed on suspension but the Defendants stopped paying him salary all of a sudden three months before the termination of his appointment. Be that as it may, the law is well settled that a party who pleads the existence of facts must lead evidence in support of same. See IBWA Ltd V. Imano Nig Ltd (2001) FWLR (Pt.44) @444 Para A – B, where the Supreme Court held:

It is the law that pleadings cannot constitute and do not tantamount to evidence and a Defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff ….is deemed to have accepted the facts in dispute as adduced in the evidence by the Plaintiff, notwithstanding the general traverse in his pleading.

Flowing from the above, it is the duty of the Defendants in the instant case who are alleging that Claimant’s stoppage of salary was because he was placed on suspension to lead evidence with regards to the fact that Claimant was actually placed on suspension the period his salary was stopped. Interestingly, there is no evidence or document to prove the fact that Claimant was actually placed on suspension. This Court must add here that even if there was evidence of suspension, Defendants had no right to stop the payment of the salary of the Claimant. At worst, Claimant ought to be placed on half salary pending the determination of the investigation against him.

 

In any event, by the combined effect of the provisions of the Constitution of the Federal republic of Nigeria, the public service rules which binds all staff in the public sector and from decided cases, fair hearing entails all of the following:

  1. Give the accused the opportunity of knowing the particulars of the allegations/accusations against him
  2. Give the accused the opportunity to affirm or exculpate himself of the accusations against him
  3. If there are documents to be used against him, give him the opportunity to see such documents so that he can affirm or dispute the authenticity of such documents
  4. If witnesses are called, give him the opportunity to cross examine such witnesses to affirm or discredit their testimony. Same goes for his accusers, he should be given opportunity to cross examine them to test the veracity of their accusation and discredit same when necessary.
  5. He should be given the opportunity, where the rules so permit, to represent himself in person or by a legal practitioner.
  6. The panel must satisfy itself that the allegations against the accused have been proved to the extent of attracting the punishment to be meted out to the accused

See FEDERAL CIVIL SERVICE COMMISSION & 2 ORS. VS. LAOYE (1989) A.N.L.R @350.

 

This Court, after a careful consideration of the case brought forward by the Claimant and that of the Defendants as well as after a careful consideration of the evidence before this Honourable Court, has come to the conclusion that the Defendants breached the right of the Claimant to fair hearing and natural justice in the procedure leading to the termination of the Claimant’s employment and as such, any decision emanating from same is null, void and of no effect whatsoever.

 

From all that have been said above, the questions raised by the Claimant/Applicant on the face of the Originating Summons are determined as follows:

QUESTIONS 1 and 2 are answered in the affirmative

 

QUESTION 3 answered in the negative

 

QUESTION 4 answered in the affirmative

 

QUESTION 5 answered in the negative

 

QUESTION 6 answered in the affirmative

 

QUESTION 7 answered in the negative

 

QUESTIONS 8, 9 and 10 answered in the affirmative

 

QUESTION 11 answered in the negative.

 

From the foregoing, the Claim of the Claimant/Applicant succeeds as follows:

 

CLAIM 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 Succeed

 

CLAIM 16 Fails to the extent that given the circumstances of this case, there is no better damages than reinstating the Claimant back to his job with all his entitlements

 

CLAIM 17 Succeeds only to the extent that Defendant shall pay Claimant the sum of One Hundred Thousand Naira (N100,000.00) as cost

For the avoidance of doubt, the declarations/orders of the Court are as follows:

  1. THE COURT HEREBY DECLARES that the purported termination of the Claimant’s employment by the 1st Defendant is illegal, wrongful, unwarranted, a gross violation of Section 11(2) of the Labour Act, 2004 and Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
  2. THE COURT HEREBY DECLARES that the 2nd Defendant’s letter dated 3rd November 2016 purporting to terminate Claimant’s appointment is ultra vires, null and void and of no effect whatsoever.
  3. THE COURT HEREBY DECLARES that the Claimant is still in the services of the 2nd Defendant.
  4. THE COURT HEREBY DECLARES   that Claimant is not entitled to summary termination of his employment by the 2nd Defendant.
  5. THE COURT HEREBY DECLARES that the  purported    termination    of Claimant’s appointment  under  any  guise whatsoever  is   contrary to the provisions  of the  pension  Act  of Nigeria  in  that Claimant is a permanent and pensionable staff of the 2nd Defendant.
  6. THE COURT HEREBY DECLARESthat the content of any purported letter ofappointment or any agreement whatsoever does not override the provisions of labour Act of Nigeria and Pension Act.
  7. THE COURT HEREBY DECLARESthat the purported termination of Claimant’sappointment by the Defendants negates the fundamental   Rights of the Claimant as provided by the 1999 constitution.
  8. THE COURT HEREBY DECLARESthat it is unlawful for the 1st Defendant   to summarily terminate Claimant’s employment without due process
  9. THE COURT HEREBY DECLARESthat the purported termination of the Claimantemployment by the   Defendants does not follow due process as required by law.
  10. THE COURT HEREBY DECLARESthat the purported withholding of the Claimant’ssalaries and other financial benefits from the month of September 2016 to date without notice or reasonable cause is  illegal, unwarranted, ultra vires, null and void.
  11. THE COURT HEREBY MAKES AN ORDERnullifying the purportedtermination of the claimant’s employment by an instrument dated 3rd   November 2016 and all other actions by Defendants consequent upon the termination.
  12. THE COURT HEREBY MAKESAN ORDERdirecting the 2nd Defendant, her
    agents, privies to reinstate the Claimant to his employment.
  13. THE COURT HEREBY MAKESAN ORDERdirecting the 2nd Defendant to pay arrears of the Claimant’s salaries and other financial benefits accrued   forthwith to the Claimant from the month his salaries were illegally withheld to date.
  14. THE COURT HEREBY MAKESANORDER  restraining the Defendants by herself, agents, servant, through or by whosoever  acting  for  her  or on  her  behalf from further interfering with the Claimant employment except in a manner required by the law.
  15. THE COURT HEREBYORDERSthe Defendants jointly and severally to provide adequate responsibilities to the Claimant throughout his employment.
  16. THE COURT HEREBY DECLARES ORDERSthe Defendants
    to pay the Claimant the sum of One Hundred Thousand Naira(N100, 000. 00) only as cost.

 

Judgment is entered accordingly

 

 

………………………………….

HON. JUSTICE M.N ESOWE

 

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