Mr. Ekakamo Jecob Eni -VS- Nigeria Immigration Service & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: FIRDAY 11^TH OCTOBER 2019

SUIT NO.NICN/EN/17/2014

BETWEEN:

EKAKAMO JACOB ENI ……………………… CLAIMANT

AND

NIGERIA IMMIGRATION SERVICE
DIRECTOR OF IMMIGRATION
COMPTROLLER-GENERAL, NIGERIA IMMIGA- DEFENDANTS

TION SERVICE

IMMIGRATION AND PRISON SERVICE BOARD

APPEARANCES:

JOHN ONAH WITH NNENNA NWAJIAKU FOR THE CLAIMANT.
COUNSEL TO THE DEFENDANTS ABSENT.

JUDGMENT

INTRODUCTION

This suit was commenced by way of Complaint on 11^th February 2014. This was accompanied with the Statement of Facts to which the 1^st-3^rd defendants filed a joint Statement of Defence on 12^th June 2014. Subsequently, the claimant filed an Amended Statement of Facts on 21^st April 2015. At paragraph 25 thereof, the claimant claimed the following reliefs:

(a) A declaration that the Defendants’ act of stopping the payment of the Claimant’s monthly salaries since February 2007 till date, even while posting the Claimant to duties and using his services, is ultra vires the Defendants, and so null and void.

(b) A declaration that the 1^st Defendant is owing the Claimant arrears of salary as follows, as at the date on which the purported Dismissal Letter was delivered to the Claimant:

S/No	Monthly Salary (Naira)	No. of Months	Period covered	Total (Naira)
i.	68,000	35	Feb. 2007 to Dec. 2009	2,380,000
ii.	109,000	36	Jan. 2010 to Dec. 2012	3,924,000
iii.	119,000	12	Jan. 2013 to Dec. 2013	1,428,000
	TOTAL			7,732,000

(c) A declaration that the 1^st Defendant is owing the Claimant arrears of housing allowance as follows, as at the date on which the purported dismissal letter was delivered to the Claimant:

S/No	Annual Housing Allowance (Naira)	No. of Years	Period covered	Total (Niara)
i.	150,000	3	2007 to 2009	450,000
ii.	200,000	3	2010 to 2012	600,000
iii.	250,000	1	2013 to 2013	250,000
	TOTAL			1,300,000

(d) A declaration that the purported dismissal of the Claimant from the service of the 1^st Defendant by the 3^rd Defendant, vide the 3^rd Defendant’s letter dated 5 September 2011, is null and void and of no effect.

(e) A declaration that the Claimant is still in the service of the 1^st Defendant.

(f) An order of this Honourable Court setting aside the 3^rd Defendant’s letter dated 5 September 2011, Ref. No. CDIPB/DC/7246/Vol.1/162, by which the 3^rd Defendant purported to dismiss the Claimant from the service of the 1^st Defendant.

(g) An order of this Honourable Court directing the Defendants to pay to the Claimant the sum of Nine Million and Thirty Two Thousand Naira (N9,032,000) being the total of the arrears of salary and arrears of the housing allowance owed to the Claimant by the 1^st Defendant as at the date on which the purported dismissal letter was delivered to the Claimant.

(h) An order directing the Defendants to pay interest to the Claimant on portions of arrears of salaries and arrears of housing allowance aforesaid at the Central Bank’s Monetary Policy interest rate per annum from the date that the payment of each portion of the sums hereinabove became due to the date of judgment in the suit herein; and thereafter at the rate of Twenty percent (20%) per annum until payment.

(i) Such further or other order(s) as the Court may deem fit in the circumstance.

The 4^th defendants did not enter appearance nor file any Statement of Defence while the 1^st-3^rd defendants did not make any consequential amendment to their original Joint Statement of Defence filed against the original Statement of Facts after the claimant amended it. That is all about summary of the important processes necessary at this stage. I now move to summarise the pleadings.

SUMMARY OF THE PLEADINGS

Amended Statement of Facts

The claimant pleaded that his letter of dismissal was dated 3^rd December 2011 but served on him on 11^th December 2013. The claimant pleaded that, upon his appointment as Assistant Inspector of Immigration in 1993, he later rose through the ranks to the post of Principal Inspector of Immigration; and that, in 2006, he was queried for absence from his duty post and for which orderly trial was conducted on 22 and 23 March 2007 and that, it was three years after the conclusion of the trial and its recommendations on 27^th March 2007 that, the 3^rd defendant wrote on 25^th March 2010 to ask him for a written representation on why disciplinary actions should not be taken against him. The claimant pleaded that, in the interval before the letter of 25^th March 2010, the 1^st defendant had promoted him to Senior Inspector of Immigration with effect from 1^st January 2007. The claimant pleaded his salary and housing allowance on this rank till 2009 and that, from February 2007, the defendants had stopped payment of his salaries and that, this was before his orderly trial; and that, in 2008, the Edo State Zonal Coordinator wrote the defendants for restoration of the claimant’s salary without success.

The claimant pleaded that, he responded to the letter of 25^th March 2010 by a letter dated 26^th March 2010 and did not get any response from the defendants. The claimant pleaded that, all the while, the defendants posted the claimant to different duties, in which the claimant served creditably, but yet his salary was not paid. The claimant pleaded that, meanwhile, the defendants promoted him again to the post of Principal Inspector of Immigration with effect from January 2010. The claimant also pleaded his salary and housing allowance on this rank. The claimant pleaded further that, he wrote the 3^rd defendant pleading for the restoration of his salary and that, this appeal was seconded by the Zonal Headquarters, by forwarding supporting documents, urging the 3^rd defendant to restore the salaries of the claimant; and that, while his salary was yet to be restored, in 2013, the defendants again promoted the claimant to the rank of Assistant Chief Inspector of Immigration, with effect from January 2013.

The claimant also pleaded his salary and housing allowance on this rank; and that, on 11^th December 2013 he received a letter of dismissal from the defendants, which was dated 5^th September 2011. The claimant pleaded that, as at the time he received the purported letter of dismissal, he was in the Delta State Command. The claimant pleaded that, his letter of dismissal and his dismissal are null and void, as the Civil Defence, Fire, Immigration & Prison Service Board does not have the power to approve his dismissal under the Public Service Rules; and that, the relevant rules of the Public Service Rules were not followed in dismissing him. The claimant also pleaded that, the defendants have condoned his absence from duty and thereby lost the right to dismiss him on the condoned allegation and that, in any case, the 1^st defendant could not dismiss him retroactively in December 2013 to take effect from 6^th October 2006 when it had left the claimant in its employment till December 2013. Thereafter, the claimant claimed the reliefs stated earlier on.

1^ST-3^RDDefendants’ Joint Statement of Defence

The three defendants pleaded that, the claimant was posted to the Brass LGA as Head of the Unit but failed to report for duty and that, as a result, another officer was posted to take over. They pleaded that the various situations reports showed the claimant’s absence. They pleaded that, this situation continued when Mr. Gana took over in 2005. They pleaded that, in 2006, the claimant was redeployed from Brass LGA to Yenegoa on 31^st May 2006 but that, the claimant did not report, which necessitated another posting instruction specifically effecting the posting of the claimant from Yenegoa LGA to Admin Section, Command Headquarters, to clear any ambiguity in the previous posting. It was further pleaded that yet, the claimant did not show up, whereupon the Head of Admin issued the claimant a query, which the claimant didn’t collect, whereupon he was reported to the 3^rd defendant; and the Edo State AGG/Z.C directed that orderly trial be conducted on the claimant and the report forwarded thereafter. The defendants pleaded that, from 06/10/2006-20/02/2007, the claimant was not seen for months and that, because, the claimant could not be found, the 3^rd defendant directed, by a letter dated 23/03/2007 that, the query be sent to his next of kin while his salary should be stopped.

They pleaded that the claimant appeared for the orderly trial on 22/03/2007 after the claimant’s salary was stopped. They pleaded that the claimant was charged with absence from duty and failure to answer query; and found guilty and therefore liable to dismissal for desertion. They pleaded that, the panel recommended that the claimant should be demoted and made to pay all the salaries collected and the report, which was forwarded via letter dated 27/03/2007 to the ACG/Z/C was however not forwarded to the Service Headquarters but was penciled down for Zonal Orderly trial. They pleaded that, the claimant was redeployed n June 2007 to the Edo State Command; and that, the claimant wrote a letter therein on 21/01/2008 appealing for the release of his salaries and admitted being issued a query; and also admitted that he was guilty, whereupon the 3^rd defendant, by a letter dated 08/10/2008 asked the Bayelsa State Command to render a comprehensive report on him and it complied by sending the report dated 31/08/2008, which didn’t get to the claimant’s file, as it got missing on transit but another copy dated 04/06/2009 was sent.

They pleaded that the case of the claimant was reconsidered and it was found that he did not react to the query of 2006 and was thus issued another query and his reply was not satisfactory; and because the claimant had been subsequently promoted to the rank of Principal Inspector, the 3^rd defendant observed that it no longer had power to try him but that only the Civil Defence, Immigration and Prisons Board [CDIPB] could. They pleaded further that, an error was made in forwarding the report to the CDIPB on 11^th October 2010 without the input of the Senior Staff Disciplinary Committee; and that, the Board referred the matter back to the 3^rd defendant by letter dated 21/01/2011. They pleaded that thereafter, the Senior Staff Disciplinary Committee considered the case and found the claimant guilty and recommended his dismissal, which the Board upheld by dismissing the claimant by letter dated 25^th May 2011 but that the dismissal letter was erroneously dated 20^th April 2010.

They pleaded further that, the claimant was not notified of the decision of the 4^th defendant because of the frequent change in administrative personnel that was rampant in 2011 and 2013; and that, it was his last appeal that drew attention to his file. They asked the Court to dismiss the suit. That is all about the 1^st-3^rd defendants Statement of Defence. The 4^th defendant, as indicated earlier, did not file any defence and the claimant did not file any reply to the Statement of Defence of the 1^st-3^rd defendants. I shall now move to the proceedings before the Court.

PROCEEEDINGS

The case came up first before His Lordship, Hon. Justice A. Ibrahim on 24^th June 2014. On 22^nd April 2015, leave was granted for the claimant to amend his Statement of Facts. The case was opened before Hon. Justice A. Ibrahim on 11^th June 2015 but could not be completed till 17^th May 2017 when Hon. Justice A. Ibrahim sat last on the matter. It started de novo before Hon. Justice I.J. Essien on 24^th April 2018. Again trial could not be completed before Hon. Justice I.J. Essien as at 19^th July 2018 when his Lordship Essien also sat last on the case. I sat first on the case on 23^rd October 2018. Trial commenced de novo the third time before me on 7^th January 2019.

I must observe that from the 14^th February 2018, the defendants and their counsel had been absent in the matter: that is, the 1^st-3^rd defendants appeared last when the matter was first opened before Hon. Justice A. Ibrahim. It was started de novo before Hon. Justice I.J. Essien on 24^th April 2018. Essien J. observed that despite service of hearing notice, the defendants and their counsel failed to appear in Court. On 7^th January 2019 before trial commenced before me again de novo, I observed that, vide pages 307-308 of the file, the 1^st, 2^nd and 3^rd defendants’ counsel was served while the 4^th defendant was served vide pages 309-311. After the close of the case of the claimant on this date, the matter was adjourned to 11^th March 2019 for cross-examination and defence, with order that the parties and counsel be served with hearing notices again for the next date. The matter came up as adjourned and the defendants and their counsel, as usual, did not turn up in Court.

On the basis of this, the learned counsel to the claimant applied that the defendants be foreclosed from cross-examining the claimant. After this application, the Court observed that, proofs of services on the defendants, vide pages 312-319, were in the file and that the matter had earlier been adjourned twice before it was opened de novo due to absence of the defence. It was adjourned again for cross-examination and defence, yet the defence failed to show up. Relying on order 38, Rules 2(3) & (4) of the NICN Rules, the defendants were foreclosed from cross-examining the claimant. Thereafter, the learned counsel to the claimant applied for date to file the claimant’s Final Written Address. Relying on Order 38, Rule 2(4) of the NICN Rules, the prayer was granted with directives that all the defendants and counsel to the 1^st-3^rd defendants be served with hearing notices. The matter came up as adjourned on 13^th May 2019 but had to be adjourned on the application of the learned counsel to the claimant that the final written address was not ready. It came up next on 15^th July 2019.

The Court observed that, there were proofs of services of the motion to deem the final written address of the claimant as properly filed and served and of the services of the final written address on the all the defendants vides pages 372-373 and 368-371 of file. The Court also noted the affidavit of service filed by the firm of the learned counsel to the claimant – p. 374-381 of file. After these observations, the application to deem the final written address as properly filed and served was granted and the learned counsel to the claimant called upon to adopt his final written address in view of the fact that the defence had lost the right to service of the date of adoption since 13^th May 2019 when the adoption was originally slated for and for which they were notified and yet failed to appear – see pages 320-324 of file; notwithstanding that the adoption could not go on that date. The Court relied on Order 38, Rule 2(4) of the NICN Rules and held that it was surplusage to have served them again for 15^th July 2019 when the adoption actually took place. The learned counsel to the claimant proceeded to adopt the claimant’s final written address and the case adjourned to 24^th September 2019 for judgment with directive that the 1^st-3^rd defendants’ counsel be notified of the date while the 4^th defendant be equally notified. The 1^st-3^rd defendants’ counsel was accordingly served – see page 384-385 of file. The 4^th defendant was not served. But it should be noted that that the 4^th defendant never entered appearance nor filed defence or appeared throughout. The Court did not sit on the 24^th September 2019. The judgment was therefore adjourned sine die. But up till now, no process has been filed by any of the defendants. It is therefore proper for the Court to proceed to deliver its judgment.

The next thing for me is to summarise the final written address of the learned counsel to the claimant.

FINAL WRITTEN ADDRESS OF THE CLAIMANT

NNENNA NWAJIAKU franked the claimant’s Final Written Address. The learned counsel formulated four issues for the determination of the case. They are:

(a) Whether the provisions of the Public Service Rules, which apply to the Claimant’s employment, were followed in the purported dismissal and if not, whether the purported dismissal of the Claimant was not null and void?

(b) Whether the 1^st Defendant condoned the Claimant’s alleged abscondment from duty (if any) and lost the right to subsequently dismiss him on that account?

(c) Whether disciplinary action could be enforced by the 1^st Defendant against the Claimant retrospectively by a dismissal effective from 2006 after it had retained the Claimant’s services until 2013?

(d) Whether the Claimant is entitled to the reliefs sought?

On issue a, the learned counsel submitted that, since the claimant is a public servant, his dismissal must be in accordance with the Public Service Rules 2008 [PSR]. The learned counsel argued that, Rule 030307 provides for the procedure of removal of a public servant and that, by virtue of this, the CDIPB lacks the power to dismiss him. The learned counsel cited Comptroller-General of Customs & Ors v. Gusau (2017) LPELR-42081 (SC) to buttress his point. The learned counsel argued that, the power to dismiss a public servant is reposed in the Federal Civil Service Commission [FCSC] and that, the dismissal of the claimant done by someone other than the FCSC is bad in law; and cited Ndili v. Akinsumade (2008) 8 NWLR (Pt. 668) 293 at 341. The learned counsel also submitted that, as the procedure for the dismissal lasted more than 60 days, it was also bad in law. The learned counsel argued that, the claimant was first queried in 2006 and served with dismissal letter in 2013. The learned counsel submitted that, he was mindful of Rule 030102 of the PSR, which says the FCSC could delegate its powers but submitted that; there was no evidence of any delegation in this regard. The learned counsel observed that, it appeared that the exercise of power to dismiss the claimant was made pursuant to the Guidelines for Appointment, Discipline and General Purposes [Guidelines] issued by the 4^th defendant, which Guidelines were also the basis of the preliminary objection filed and argued in the course of this case. The learned counsel cited the dictum of Eko JSC in Comptroller-General of Customs v. Gusau [supra] to the effect that, the Customs Board could not usurp the powers of the FCSC to exercise disciplinary control over public servants and submitted that, the purported dismissal is null and void.

The learned counsel argued that, the 4^th defendant cited Rule 030413 in dismissing the claimant; and submitted that, assuming the rule gave it the power to so act, Rule 030307 was breached in that, the procedure followed lasted for more than 60 days and thus, the dismissal was invalid. The learned counsel relied on Ahamefule v. Imperial Medical Center & Anor (2004) LPELR-7372 (CA); Iderima v. Rivers State Civil Service Commission (2005) 7 KLR (Pt. 202-203) 2273 and Federal Civil Service Commission v. Laoye (1989) NLR 350. The learned counsel submitted lastly that the exercise of power of dismissal by the 4^th defendant was ultra vires and moved to issue b.

Under issue b, the learned counsel argued in the alternative that, the defendants condoned the conducts of the claimant for which he was allegedly dismissed and cited Nigerian Army v. Aminu-Kano (2010) LPELR-2013 (SC) and this Court in Mariam v. University of Ilorin Teaching Hospital Management Board & Anor (2013) 35 NLLR (Pt. 103) 40 at 131 and Chiagorom v. Diamond Bank (2014) 44 NLLR (Pt. 140) 401 at 471. The learned counsel cited Electricity Corporation of Nigeria v. NICOL (1986) 1 ALL NLR 201 to the effect that, promotion after misconduct is condonation of the misconduct. The learned counsel submitted that, the defendants having condoned the alleged abscondment of the claimant by promoting him, they have lost the right to revert to discipline him on the same account. Thus ended arguments on issue b and the learned counsel moved to issue c.

Under issue c, the learned counsel argued that, assuming the 4^th defendant had the power to dismiss the claimant, it lacks the power to dismiss him retroactively because Rule 030408 forbids retroactive dismissal. The learned counsel cited Shenaike v. Bras Ventures Ltd (2016) NLLR (Pt. 225) 45 at 77-78 to the effect that, an employee could not be dismissed with retroactive effect to deny him of the earned salaries. The learned counsel also cited LCRI v. Mohammed (2005) 11 NWLR (Pt. 935) 1 at 25 and Odugbami v. Nigerian Broadcasting Corporation (1973) 3 ALR Comm 94 to the effect that, dismissal takes effect on the date the dismissed staff is notified. On the basis of the foregoing authorities, the learned counsel submitted that, assuming the dismissal was valid, it could only take effect from 11^th December 2013 even though, the letter was dated 5^th September 2011. Thus ended arguments on issue c and the learned counsel moved to issue d.

Under issue d, the learned counsel submitted that, the claimant is entitled to all the reliefs claimed in that, he has discharged the burden of proof on him by showing that he was a public servant employed as Assistant Inspector of Immigration and rose through the ranks by promotions to Principal Inspector of Immigration. The learned counsel submitted that, the evidence of the claimant was unchallenged and thus, the burden of proof is discharged. The learned counsel cited Amayo v. Erinwingbovo (2006) LPELR-458 (SC). The learned counsel also argued that, since the defendants did not lead evidence, the joint Statement of Defence filed by the 1^st-3^rd defendants is deemed abandoned and cited WAEC v. Oshionebo (2007) ALL FWLR (Pt. 370) 1501 at 1509. The learned counsel submitted that, the claimant has also pleaded and led evidence to show that his dismissal was not done in accordance with the conditions of his appointment. The learned counsel submitted further that, the claimant is entitled to prejudgment interest because it was pleaded and evidence led on same. Finally the learned counsel urged the Court to grant the reliefs.

That is all about the final written address of the claimant. Since there is no other address to be reviewed, I move to give my decision. First, it is important for me to state that, I am aware of my responsibility in a situation like this, where there is absence of defence from the other side; that, I am still supposed to consider the evidence on record against the background of the law to convince myself of its plausibility or otherwise, before coming to any conclusion. I also need to state that, despite the fact that I did not summarise the evidence on record, I have painstakingly studied and digested same and taken cognisance of the demeanour of the claimant at testimony, although, he was not cross-examined. I shall make constant references to these pieces of evidence as occasions demand. I have also read the available pleadings in the suit, as indicated in my summary of them above. I have equally read and digested the final written address of the learned counsel to the claimant and consulted the important authorities cited. To the sacred duty of giving my decision, I go.

COURT’S DECISION

In giving my decision, while I agree that the four issues formulated by the learned counsel to the claimant covered all the issues in the case, I am of the opinion that they are prolix. In view of this fact, I proceed to condense them accordingly:

Whether the claimant was properly dismissed from service?
Whether the claimant is entitled to the reliefs sought?

I proceed to take them seriatim. Off to issue 1 I go.

ISSUE 1: WHETHER THE CLAIMANT WAS PROPERLY DISMISSED FROM SERVICE?

Let me state first before going further, that, in the instant case, the defendants did not participate in the trial hence, this judgment is in default of the defendants leading evidence. The Supreme Court has stated the law in relation to failure to field evidence in respect of a statement of defence in the case of Military Governor of Lagos State & Ors v. Adeyiga & Ors (2012) LPELR-7836 (SC) 55, A-B:

“In the absence of evidence to support the statement of defence, the pleadings of the defendants/appellants were abandoned. The defence is deemed abandoned for all time.”

This means I cannot take cognisance of the Statement of Defence by the 1^st-3^rd defendants. Be that as it may. I therefore entertain no hesitation in agreeing, on this point, with the learned counsel to the claimant that, the Statement of Defence filed by the 1^st-3^rd defendants is abandoned with the effect that, the 1^st-3^rd defendants have no Statement of Defence in sight since, in law, it is impossible to take cognisance of the one that is deemed abandoned – see Durosaro v. Ayorinde (2005) LPELR-967 (SC) 19, A-B. With regard to the 4^th defendant, who failed to file memo of appearance and Statement of Defence, the law is that, with the failure of the 4^th defendant to file memo of appearance and Statement of Defence; and in the absence of physical appearance of the 4^th defendant throughout the trial, the claimant is entitled to judgment in default or to proceed to prove his case against the 4^th defendant – see Nwobodo v. M.O. Nyiam & Associates (2014) LPELR-22668 (CA) 14, para. E and Ben C. Emodi & Ors v. Mrs. Emodi & Ors (2013) LPELR-21221 (CA) 23, B-D. The claimant rightly proceeded therefore to prove his case. But whether he met the requirements of the law to be entitled to judgment in his favour, is what I must now examine. I now go into issue 1.

Under this issue, amongst others, the learned counsel to the claimant argued that the PSR regulated the employment of the claimant to the exclusion of the Guidelines made by the 4^th defendant and as such, only the FCSC could dismiss the claimant and that, the 4^th defendant therefore lacked the vires to dismiss the claimant thus, making the dismissal null and void. The learned counsel cited Comptroller-General of Customs & Ors v. Gusau [supra] as the authority for this proposition of law.

I have examined the letter of dismissal [Exhibit C5] and found that the Secretary of the 4^th defendant wrote it. From this, it is clear that, the 4^th defendant dismissed the claimant. It is also clear that the 4^th defendant dismissed the claimant under the PSR and not under its Guidelines. The 4^th defendants cited Rule 030413 of the PSR as the rule that gave it authority to dismiss the claimant. I therefore cannot find the basis of any reference to the said Guidelines by the learned counsel to the claimant in order to bring in the authority of Comptroller-General of Customs v. Gusau. A case is an authority on the facts on which it is decided. The facts of this case are different from those of Comptroller-General of Customs v. Gusau and therefore, it is not an authority for this case.

Nevertheless, it is inferential that since the 4^th defendant dismissed the claimant pursuant to the PSR, then, the procedure of dismissal must abide the PSR. But definitely, the argument that the 4^th defendant lacks the power to dismiss the claimant cannot hold. The Supreme Court did not determine anything like that in Comptroller-General of Customs v. Gusau. All that it decided was that, the Guidelines could not supersede the PSR and that, the PSR guides the compulsory retirement age of the plaintiff/respondent. The Supreme Court effectively settled this issue beyond disputation in this same Comptroller-General of Customs v. Gusau [supra] when it cited the provisions of Rule 160103 of the PSR to the effect that:

“The Nigeria Customs Service Board, the 4^th Appellant, is a parastatal, established by Section 1(1) of the Nigeria Customs Service Act, 2004. Chapter 16 Rule 160103 of the Public Service Rules is categorical that –

‘Parastatals are to retain and improve existing rules, procedures and practices in their establishments and ensure that there are no deviations from the general principles contained in the Public Service Rules – . [sic] However, in the absence of internal rules and regulations on any matter, the relevant provisions of the Public Service Rules shall apply.”

From the above, it is abundantly clear that, the 4^th defendant in this case, is a parastatal under the Federal Ministry of Finance. By virtue of section 4(1) & (2) of the Nigerian Customs Service Board Act, the 4^th defendant, as recognised by Rule 160103 of the PSR, has the statutory power to exercise disciplinary control over the claimant and all staff of the 1^st defendant. It is thus, the person that can validly dismiss the claimant; and not the FCSC, as wrongly argued by the learned counsel to the 1^st-3^rd defendants. It now remains to see if the 4^th defendant validly dismissed the claimant in the instant case.

I found intriguing, in this case, the facts that the claimant was issued query in 2006 and his salary stopped in February 2007 and yet the defendants kept promoting and posting him till 2013 – see paragraphs 8, 10, 12, 15, 16, 18 and 23 of the written deposition of the claimant adopted in Court on 7^th January 2019 and the same paragraphs of the Amended Statement of Facts. The claimant was first queried in 2006. His salary was stopped in February 2007 and yet he was first upgraded after the stoppage of salary on 27^th September 2007, in the second place, promoted again in January 2010, and thirdly again promoted in January 2013 but issued with dismissal letter on 11^th December 2013! It would be found that, from February 2007 when the claimant’s salary was stopped, he received upgrading/promotions three subsequent times before the dismissal. I found that the claimant tendered exhibits C1, C2, C3, C4, C5, and C6. These support the facts of the query, the promotions, the dismissal and that, the claimant remained on the nominal roll of the defendants till 2013. It is thus clear that the defendants continued to treat the claimant as their staff. With regard to the argument of the learned counsel to the claimant that, if there was any offence committed, the defendants had condoned it by the subsequent promotions, I think I agree with him.

I cannot rationalize how an officer who is deemed to be under punishment [by stoppage of salary] could be upgraded once and promoted at the same time; and not once, but twice. I cannot rationalize how an officer whose salary had been stopped would be allowed to remain in service for upward of 6 years after the salary stoppage, salary being the major insignia of employment relationship. Condonation is a matter of fact, which could be derived from the conduct of the parties to a contract – see Romrig Nigeria Limited v. FRN (2014) LPELR-22759 (CA) 44-45, G-A, where the Court of Appeal held thus:

“We must not be unmindful of the essence and meaning of condonation. Muhammed JSC in Asake v. Nigerian Army (supra) wherein the learned justice defined condonation as ‘a victim’s express or implied forgiveness of an offence by treating the offender as if there has been no offence.”

It is my view that the doctrine of condonation in employment relationship is an extension of the doctrine of estoppel, and in this instant case, estoppel by conduct. The defendants would be estopped from waking up from their slumber to dismiss the claimant after 7 years that he was accused of committing an offence and after their continued constant promotions of the claimant within this period, albeit the non-restoration of the salary that had been stopped since 2007. With the scenario in place, the defendants had put the claimant in such a situation to reasonably believe his offence had been glossed over and when he wrote another appeal for a restoration of his salaries in 2012, the defendants could not use this as a springboard to wake up from their slumber and proceed to dismiss the claimant with retroactive effect from 2006; meaning he was being dismissed for the offence for which he was issued query in 2006 and that had been impliedly condoned. This letter of dismissal was dated 5^th September 2011.

Even if I fail to take cognisance of the evidence of the claimant that the letter of dismissal was served on him in 2013, the fact remains that, within the letter itself, it is evident that it was made to have retroactive effect. It is also evident that the claimant was being dismissed for the alleged offence committed in 2006. It was purportedly issued on 5^th September 2011 but made to have retroactive effect from 6^th October 2006: that is, 5 years before it was issued. A combination of condonation, waiver of right and estoppel by conduct squarely capture the facts of this case. The Court of Appeal aptly captured situations when estoppel by conduct would deprive a person from exercising a right s/he ordinarily possessed in Suit No. CA/A/795/2015 – Tukur v. the Kaduna State Polytechnic & 2 Ors. [delivered 30/07/2018 by the Abuja Division] wherein it relied on the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112 to hold thus:

“The effect of exhibit CA2, in my view, is that it operates as estoppels by conduct, the type of estoppels contemplated by section 163 [sic], Evidence Act 2011. That is: a party who has, either by his declaration or act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of the thing, he must accept the new legal relationship as modified by his own words or action, whether or not it is supported by any point of law, or by any consideration but only by his word or conduct…These applicants herein, represented by the 2^nd set of respondents, in view of exhibit CA2, cannot be allowed to approbate and reprobate at the same time. They are stopped by operation of exhibit CA2.”

Exhibit C5, has sufficiently proved estoppel by conduct against the defendants and that they have abandoned their right to dismiss. They cannot therefore wake up from their slumber and dismiss the claimant retroactively. The lapse of 7 years before the defendants attempted to dismiss the claimant showed that they have waived the right to dismiss him. It is my fervent stand that if the defendants accused the claimant of abscondment and after issuance of query in 2006 decided not to dismiss the claimant but to upgrade him once and promote him twice thereafter, I cannot find that any reasonable court of law or tribunal would come to the conclusion that the defendants have not condoned the offence and thereby waived their right to revert back to punish the claimant on the same issue. I think promotion is only granted to an employee who has performed creditably in his duties at work.

And I don’t think any employer of labour could adjudge an absentee employee to have creditably performed to merit promotion. It would be illogical to upgrade an employee once, promote him twice after he was alleged to have committed an offence and to turn round after about 7 years thereafter to dismiss him for the same offence. If the defendants promoted the claimant twice after the query of 2006 and upgraded him once, it means whatever they had against him had been condoned and that, the claimant’s performance had thereafter become satisfactory hence; the upgrading and promotions; and thus, their right to punish him over the erstwhile offence forfeited or waived. The Supreme Court accurately captured my thoughts in this regard when it held in Bakare v. Lagos State Civil Service Commission & Anor (1992) LPELR-711 (SC) 95, C-D that:

“The main point raised by this issue is whether at the stage, some three years after the offence of absence from duty without leave or permission was committed, the respondents could go back and rely on Regulation 51 and Rule 04502. In my opinion any right they might have had to resort to them and dismiss the appellant had been waived. Waiver is an abandonment of a right, and is either express or implied from conduct. A right that has been waived is as good as lost in that once the other side acts upon the waiver, the party waiving his right can no longer go back on the waiver and act as if it was never waived. He must accept the legal relations between the parties subject to the qualification which he himself has introduced.”

If truly the claimant had absconded, the defendants ought to have proceeded to dismiss him outright and not to stop his salary first and subsequently issue him query. The fact that the claimant appeared for the March 2007 orderly room trial sequel to the query is a negation of abscondment. It means if the claimant originally absconded, he had remedied it when after the orderly room trial in 2007 till 2013 he was not dismissed. After all, orderly room trial could only be conducted on a person who was physically present. Thus, even if the claimant actually absconded and the defendants left what they ought to have done by dismissing him there and then outright; and proceeded on another course signifying that he was still their staff, they must rise or sink with the consequences – see Bakare v. Lagos State Civil Service Commission & Anor [supra] 95-96, F-A:

“In the instant case at the time the appellant refused to go on posting and absented himself from duty without leave or permission, the respondents could have summarily dismissed him under Regulation 51 and Rule 04502, subject to the dismissal being reviewed upon any representation he might make. But they did not dismiss him. Rather they continued to pay his salary for some two years when they stopped it without authority. Up till August, 1983 when they issued the query Exc. “00” to him, they were still treating him as a staff. They had lost the right to fall back to Regulation 51 and/or Rule 04502 to claim that he was dismissed or deemed dismissed.”

The facts of this case are not too dissimilar to those of the case cited and quoted above. It is therefore a good authority on which this case could be determined. When the defendants continued to post the claimant and retained him in their nominal roll; and to crown it, upgraded him once and promoted him twice after the 2006 query and the 2007 orderly room trial and stoppage of salaries, the recommendations of the orderly room trial, which the defendants contemptuously ignored, it is logical to conclude that, the defendants could not just wake up in 2011 or 2013 to dismiss the claimant with retroactive effect from 2006. No reasonable tribunal or court of law would allow such dismissal to stand. I don’t think this needs the citation of breach any rule of the conditions of service to set it aside and neither could any conditions of service permit such capricious and malevolent act; especially in an employment clothed with statutory flavour, where rules of natural justice and fair play are the hallmarks. It smacks of lack of good faith and fairness. These vitiate the dismissal.

The dismissal in the circumstances narrated above, is plainly inequitable and amount to unfair labour practice. This type of capriciousness is abhorred in labour relations in all modern democracies: it is a negation of best practices; and this Court has the jurisdiction to set aside such unfair labour practice by virtue of section 254C – (1)(f) of the 1999 Constitution [as altered]. If the employer that has upper hand in employment relations decides to be malevolently capricious in the exercise of her right or decides to be lackadaisical with her right, then, it meets fair labour practice to prevent it from reaping a benefit from her wrong and unlawful exercise of the right, which has been waived. The defendants cannot be allowed to approbate and reprobate on the issue at hand – see Akinbiyi v. Lagos Island Local Govt Council & Ors (2012) LPELR-19839 (CA) 20, F.

The conducts of the defendants in the instant case, amount to approbating and reprobating. It is wrong for the defendants to wake up late in the day from its very deep slumber, presupposing death and complete abandonment of its responsibilities and duties, to dismiss a claimant they had treated for 7 or 6 years after the alleged offence and orderly room trial, as a very responsible officer by upgrading and promoting him as at when due. To allow it to so act would be totally inequitable. I must say finally that I wonder why the defendants kept upgrading/promoting and posting the claimant, who presumably had serious disciplinary case, which could lead to dismissal, without completing the trial on time and without remembering that he had pending against him such serious disciplinary proceedings. I take judicial notice that in any serious organisation, there must be face-to-face interview with the management of the organisation before promotion; and this becomes more poignant in this case at hand, where the 1^st and 4^th defendants, who are big-time statutory parastatal with the PSR guiding matters of appointment, promotion and discipline of their staff. And I take judicial notice too, that for an officer to be promoted, briefs must be rendered on such officer detailing facts connected to such officer’s suitability or otherwise for promotion, yet this officer was promoted two solid times and upgraded once after a lull in the commencement of disciplinary actions [query, orderly room trial] against him without a whimper; and suddenly and unexpectedly, the defendants decided to wake up from their slumber and exercise their powers to dismiss the claimant, after he appealed for a restoration of his salaries!

The lackadaisical attitude of the defendants as narrated above, which was continued with reckless abandon after the institution of this case till its conclusion must have been responsible for the sorry state of affairs, as seen in this case. It is a sad commentary on the defendants. I say no more.

No reasonable court of law or tribunal would countenance this sort of malevolent capriciousness on the part of the defendants. Did the defendants want the claimant to continue working till retirement without salaries! Such cannot be in any civilized society; and particularly in Nigeria, in view of section 254C – (1)(f) of the 1999 Constitution [as altered], which burdened this Court with the responsibility to prevent unfair labour practices. Unfair labour practice is established in the instant scenario. The Court must exercise its jurisdiction to stop it. I hold therefore that the claimant was not properly dismissed. His dismissal was unlawful; and therefore liable to be set aside. I accordingly set aside the dismissal of the claimant as contained in the letter of dismissal [Exhibit C5]. The claimant thus, has issue No. 1 settled in his favour. I move to issue 2.

ISSUE 2: WHETHER THE CLAIMANT IS ENTITLED TO THE RELIEFS SOUGHT?

The claimant pleaded that his employment enjoyed statutory flavour via paragraphs 2, 3, 4, 5, and 24(a)-(b) of his Amended Statement of Facts and his written depositions. The claimant tendered Exhibit C5, the letter of dismissal, wherein the defendants referred to Rule 030413 as the condition of service under which the claimant was dismissed. It is not in doubt that the PSR is a subsidiary legislation that conferred the employment in issue with statutory flavours. The claimant also pleaded reinstatement and payment of arrears of salaries and gave evidence to that effect – see paragraphs 25(a)-(g) of the Amended Statement of Facts and written depositions. The law is that, where dismissal of employee, whose employment enjoys statutory protection, is declared unlawful, such dismissal is liable to be set aside with an order reinstating such employee to the status quo ante and with payment of his arrears of salaries; and allowances, if proved – see CBN v. Igwillo (2007) LPELR-835 (SC) 49, D-E and The Board of Management of Federal Medical Centre, Makurdi v. Kwembe (2015) LPELR-40486 (CA) 67-68, C. The legal fiction is that such employee had always being in service in the eye of the law.

Salary is an integral part of any employment. In fact, it is the litmus test. Entitlement to it is therefore presumed; and might not be strictly proved. Such cannot be said of other allowances and fringe benefits. Being in the nature of special damages, they must be strictly proved by cogent evidence for a claimant to be entitled to it. Beyond the written deposition and the pleadings of the claimant, there is no physical evidence produced to show that the claimant was entitled to the other allowances claimed outside arrears of salaries. The mere oral testimony of the claimant, as contained in the written depositions, without more, cannot found a grant of the other allowances. He must produce concrete evidence of his entitlement to them by way of either showing where such were created in his conditions of service or by tendering evidence of previous payment of same – see Adama Beverages Limited v. Akam & Ors (2015) LPELR-40417 (CA) 27-28, B-C.

Although, I am aware that the Statement of Defence of the 1^st-3^rd defendants is deemed abandoned in the absence of evidence to prop it up. This situation makes it more precarious for the claimant. Were it that the defendants participated in the trial and admitted the pleadings relating to the allowances in issue or did not challenge the evidence at trial then, it would have been easy for me to presume that the claims are cogent or were it that the claimant merely claimed his allowances without giving specific details or figures, it would have been plausible to grant the relief such that, Court could just order that the defendant calculate and pay to the claimant the allowances to which he is entitled. Implying the claimant could have the second chance of providing evidence to show that the allowances were not correctly calculated, if what is calculated is not correct. With the method adopted by the claimant, no option is giving to the defendant to participate in the ascertainment of the allowance; hence, the claimant must strictly prove same to succeed.

It should not be forgotten that this relief is a declaratory one – see relief c. But in this particular instance, I take judicial notice that housing allowances are often integral parts of salaries of public servants and that; they are not paid separately as special allowances or lump sums in a year. Hence, the claimant needs to do more to convince me that the claim is true by presenting cogent documentary evidence of its payment or approval. I cannot presume this like the payment of salaries. I therefore refuse the claim for housing allowances. I also refuse the relief asking for prejudgment interest. This is not granted as a matter of course. It must be strictly proved or shown to be a trade practice or to have happened in purely commercial transactions where the other party could be presumed to have had commercial use of the money – see AG Gombe State v. Gadzama (2014) LPELR-23423 (CA) 49-53, D-A.

I must also state that promotions are not ordered as a matter of course. Special case must be made. For example, that there is deliberate and vindictive denial of promotion when the claimant met all the preconditions. I therefore refuse relief (i); to the extent that, I refuse to order that the claimant be promoted. That is all about my comments on the reliefs claimed. I must now proceed to conclude the judgment by pronouncing the reliefs granted and those refused; and by making the necessary consequential orders.

CONCLUSION

For the avoidance of doubt and in line with my explanations above, I grant reliefs (a), (b), (d), (e), (f), in full. I grant reliefs (g) in part to the limit of ordering the payment of the arrears of salaries. The defendants must pay the arrears of salaries as claimed. I also refuse reliefs (c) & (h) in their entireties. I refuse relief (i) by refusing to order promotion and payment of allowances as claimed. I grant relief (i) in part to by ordering the defendants to pay the claimants all his arrears of salaries from the date his salary was stopped till the date of the decision of this Court is obeyed. I order the defendants to pay cost assessed at N200thousand to the claimant. I hereby give a grace period of 30 days post-judgment for the defendants to comply with this judgment. Thereafter, 10% interest on the judgment sum shall begin to read. This shall be the judgment of the Court.

Judgment is accordingly entered.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA