IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: TUESDAY 16TH JULY 2019 SUIT NO. NICN/OW/05/2013
BETWEEN:
ESTHER UGWUNALI….……………………………………CLAIMANT
AND
IMO STATE AGRICULTURAL DEVELOPMENT
PROJECT
THE GOVERNMENT OF IMO STATE DEFENDANTS
ATTORNEY-GENERAL OF IMO STATE
REPRESENTATIONS:
I.C. ONUOHA FOR THE CLAIMANT.
NO REPRESENTATION FOR THE DEFENDANTS.
NOTA BENE: This case was entirely heard from the beginning to conclusion at the Owerri Judicial Division of the Court but judgment delivered at the Enugu Judicial Division, pursuant to Order 62, Rule 12(1) of the NICN Rules, 2017.
JUDGMENT
INTRODUCTION
This suit was commenced by a writ of the Owerri Division of the High Court of Imo State on 16th March 2009 and transferred to this Court by the order of His Lordship, Hon. Justice Monye Okoronkwo, dated 3rd December 2012 vides transmission letter dated 11th June 2013. A Statement of Fact [wrongly tagged ‘Statement of Claim’] was filed in this Court on 31st January 2014 with accompanying processes. The following reliefs were claimed in paragraph 18 thereof:
A declaration that the purported termination of the claimant’s employment with the 1st defendant contained in letter Ref. IMOADP/S.25/VOL.1/X dated 4th May 2004 is null, void unlawful and unconstitutional.
An order of court directing the defendants to re-instate the claimant with the 1st defendant.
An order of court on the defendant to pay the claimant arrears since she was wrongly terminated together with the arrears of promotions and incrementals [sic] and to restore her to the position she would have been now if she had not been wrongfully terminated.
The 2nd and 3rd defendants responded by filing 2nd and 3rd Defendants’ Statement of Defence on 18th February 2014 with the connected processes while the 1st defendant filed its Statement of Defence on 3rd October 2017, without any accompanying document. The 2nd and 3rd defendants filed their Final Written Address on 18th April 2019. The 1st Defendant did not file any final written address while the claimant filed hers on 9th May 2019. That is all about the major processes filed. I shall now summarise the pleadings on which bases the case was fought and on which bases, it must be decided too.
SUMMARY OF THE PLEDAINGS
B. Statement of Facts
The claimant pleaded that she was a public servant employed by the 1st defendant, a public service by Imo State Legal Notice No. 25 of 1991, by a letter dated 18th April 1995 and confirmed by another letter dated 12/5/2003. She pleaded that, she presented the photocopy of her baptismal certificate to the Staff Audit Committee/Panel, as she had lost the original, which was the same with the one in her file, without alteration or mutilation, but the Audit Committee/Panel insisted she must produce the original. The claimant said she therefore obtained a certified true copy [CTC] from the parish where the original was issued and presented it to the Committee/Panel. She pleaded that by a letter dated 4th May 2004, her appointment was determined based on the audit report, and she protested this. The claimant said she went back to the parish priest who gave her a letter, which stated that there was no forgery. The claimant said the Commissioner of Agriculture equally wrote a letter directing the 1st defendant to protest her termination to the Audit Committee/Panel, which was done by the ADP’s letter to the Chairman of the Audit Committee/Panel, dated 13th July 2004, which urged the Audit Committee/Panel to reconsider her case.
The claimant pleaded that the Audit Committee/Panel refused to reconsider their decision. She pleaded too, that the Imo State Agricultural Development Project Law, 1992 and the Public Service Rules of Imo State regulate her appointment. She pleaded that the procedure for her removal was not followed. She pleaded too, that the Audit Committee/Panel lacks the vires to either investigate any allegation against her or recommend her removal, being an extraneous body. She also pleaded that, she was not charged to court and that, she was not afforded fair hearing. She pleaded finally, that she served pre-action notice on the 1st defendant; and consequently brought this suit to obtain the reliefs sought. I move to the pleadings of the 2nd and 3rd defendants, having being filed before that of the 1st defendant.
B. Pleadings of the 2nd and 3rd Defendants
The 2nd and 3rd defendants filed joint defence. They reacted to paragraph 1 of the Statement of Fact and stated that the claimant was employed as Typist on GL 03 by letter dated 19th April 1995 contrary to her pleadings, and that, as a civil servant; she was subject to the authority of the Imo State Civil Service Commission. It was counter averred against paragraph 2 of the Statement of Facts that, the 1st defendant is a corporate body created by Imo State Law No. 3 of 1992. It averred that, when the claimant was newly employed, she presented the photocopy of the baptismal certificate and promised to produce the original, but failed. It was averred in reaction to paragraphs 6 and 7 of the claimant that, in 2013, Staff Audit Committee/Panel was set up and the claimant only produced the same photocopy of her baptismal certificate, instead of the original requested.
In answer to paragraph 8 of the claimant, it was averred that the termination letter communicated the government’s directive to terminate the appointment on the recommendation of the Audit Committee/Panel, because the government has power to discipline the claimant via the Civil Service Commission. The 2nd and 3rd defendants also averred that, they denied paragraphs 9-12 of the claimant by putting the claimant to the strictest proof and stated further, with respect to paragraph 13 of the claimant that, the disciplinary action was done by the 1st defendant via the letter of termination. It was averred in reaction to paragraphs 14 and 15 of the claimant that, the Audit Committee/Panel was known to law and could properly investigate and recommend the termination of the claimant on ground of forgery. It was further averred that steps are in the offing to prosecute the claimant and others of like ilk.
The 2nd and 3rd defendants averred that the averment in paragraph 16 of the claimant is not within their knowledge. In reply to paragraph 17 of the claimant, it was averred that, the termination was right and did not infringe right to fair hearing. It was equally averred that, the suit is statute barred and the Court therefore lacks jurisdiction; having been begun five years after the cause of action and that, the defendants acted within the colours of their offices in terminating the appointment. Both the Public Officers Protection Law of Imo State, which prescribed three months of the occurrence of the cause of action and the Limitation Law of Imo State, which prescribed five years, within which an action must be commenced, were pleaded. It was pleaded that the action was filed outside five years and therefore caught by both laws. Thus, ended the pleadings of the 2nd and 3rd defendants. I move to that of the 1st defendant.
C. 1st Defendant’s Pleadings
The 1st defendant filed its Statement of Defence on 3rd October 2017. All the averments contained in the 1st defendant’s pleadings are virtually the same with those of the 2nd and 3rd defendants. Hence, I need not repeat them. The only exception is that, it was pleaded that paragraphs 6 and 15 of claimant conflict and that paragraph 16 was false in that, the claimant did not serve any pre-action notice. That is the end of the 1st defendant’s pleadings. There was no reply pleadings filed. I shall now move to summary of the proceedings at the Court.
PROCEEDINGS
The matter came up first before Hon. Justice O.Y. Anuwe on 9th October 2013. It came up about 6 more times before the 20th May 2015. On 20th May 2015, the matter was opened but trial could not be completed before His Lordship, Hon. Justice Anuwe, was transferred. It subsequently came up before me for the first time on 16th October 2017. The case was opened de novo before me on 2nd May 2018 with CW1. CW1 swore on the Holy Bible and adopted her written deposition made 30/01/14. Exhibits A, B, C, D, E, F, G and H were admitted without objection. Objection was reserved on ID J till the final address stage. The testimony-in-chief of CW1 was thus brought to an end; and the case adjourned to 15th May 2018 for cross-examination and defence. It could not go on this date because of the counsel to the defence and was adjourned to 14th June 2018 for cross-examination and defence. It came up as adjourned. CW1 was cross-examined and the cross-examination was brought to an end the same day without re-examination. Thereafter, the learned counsel to the claimant closed the claimant’s case and the matter adjourned to 10th October 2018 for defence and cross-examination.
However, the matter did not come up on the 10th October 2018 but on 29th November 2018 because, I had been transferred too, from the Owerri Division. It could not go on too on this date because of the absence of all counsel in the matter. It was further adjourned to 6th December 2018 but the Court did not sit on this date too. The matter came up next on 10th December 2018. On this date, the counsel to the defendants, were absent and the case was therefor adjourned to 9th January 2019 for defence. The Court did not sit on this date and the next time the Court sat was 22nd March 2019. On this date, the counsel to the 1st defendant was absent and on confirmation that he was aware of the date, the matter was allowed to proceed to defence by the 2nd and 3rd defendants. The 2nd and 3rd defendants opened their defence accordingly. DW1 affirmed and adopted her written deposition made 18th February 2014. After identifying Exhibits E and C tendered by the claimant, her evidence-in-chief was brought to a close and the case immediately proceeded to cross-examination and the cross-examination was completed the same day without re-examination. The 2nd and 3rd defendants closed their defence at this point.
It was observed that the 1st defendant did not file any written deposition or list of witnesses nor frontloaded any document. It was taken that it rested its case on that of the claimant and aligned with the 2nd and 3rd defendants. The matter was therefore adjourned to 10th May 2019 pursuant to Order 38, Rule 2 (4) of the NICN rules for adoption of the final written addresses of parties. The Court did not sit on this date. It sat next on 17th May 2019. The counsel to the 2nd and 3rd defendants was not in Court. After ascertainment that she had hearing notice of this date and deliberately absented herself and, after also confirming from the learned counsel to the 1st defendant that he deliberately did not file final written address because he aligned with the address of the 2nd and 3rd defendants, and that the time for the 2nd and 3rd defendants to file reply on points of law had lapsed without any filed, the case was allowed to proceed to adoption of final written addresses.
The final written address filed by the learned counsel to the 2nd and 3rd defendants was deemed adopted in line with Order 45, Rule 7 of the NICN Rules, with a rider that the default fee be paid within 7 days thereof with evidence of payment put in the file within 7 days after the lapse of the ultimatum and the file transmitted to Enugu for the judgment to be written. Evidence of payment of the default fee is now page 206A of file. The learned counsel to the 1st defendant thereafter aligned with the final written address of the 2nd and 3rd defendants. Thereafter, the learned counsel to the claimant adopted the final written address of the claimant. And the case was adjourned to 14th June 2019 for judgment. The judgment was not ready on this date and it was therefore adjourned sine die till when date of its readiness would be communicated to the learned counsel to the parties.
Having traced the trajectory of the case till the adoption of final written addresses and adjournment for judgment, the next thing is to summarise the final written addresses of the learned counsel to the parties. I start with that of the learned counsel to the 2nd and 3rd defendants, which was filed first.
SUMMARY OF THE FINAL WRITTEN ADDRESSES
B. Final Written Address of the 2nd and 3rd Defendants
B.N. IWU [PRINCIPAL STATE COUNSEL] Ministry of Justice, Imo State franked the Final Written Address of the 2nd and 3rd defendants. The learned counsel submitted two issues for the determination of the case. They are:
Whether the termination of the Claimant’s appointment on ground of baptismal certificate mutilation is valid. [sic]
Whether the claimant is entitled to her claims. [sic]
Arguing issue 1, the learned counsel for the 2nd and 3rd defendants submitted that, the termination on ground of mutilation of baptismal certificate was valid, since the claimant was given adequate notice to produce the original and she refused. The learned counsel submitted that, the alleged loss of the original without any evidence to that effect, is of no avail. The learned counsel said under cross-examination, the claimant said that the evidence of loss of original of baptismal certificate allegedly presented to the Audit Committee, which was rejected, was not before the Court. The learned counsel also cited the evidence of the claimant under cross-examination by the learned counsel to the 1st defendant wherein, the claimant said she gave the Committee photocopy of evidence of her birth and said the original was lost, when thieves invaded their house. The learned counsel submitted that, the claimant failed to plead or depose in her written deposition to loss of the original and the affidavit of loss allegedly presented to the Committee, is not before the Court. The learned cited section 131(1) & (2) of the Evidence Act and Iyere v. BFFM Ltd (2011) FWLR (Pt. 237) 1166 and G & T. Invest. Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500 SC. The learned counsel submitted that, the claimant has therefore failed to discharge the burden placed on her and her case is bound to fail.
The learned counsel cited Muhammed v. DHL Int’l Ltd. (2001) FWLR (Pt. 38) 1312 CA and Modu Aji v. Chad Basin Development Authority & Anor. (2015) 61 (Pt. 3) NSCQR 1817 at 1848-1849 to the effect that, the claimant has failed to prove that the termination was wrongful. The learned counsel also submitted that, the claimant equally failed to prove to the Court that the baptismal certificate presented to the Committee was not mutilated because, during cross-examination she had said she was born April 1964 but does not know the date while she also responded to the question of the learned counsel to the 1st defendant under cross-examination that, exhibits C and D did not have the month and date of birth by saying that, that was how it was given to her. The learned counsel argued that, the claimant did not plead how and where the original certificate got lost and failed to depose to this in her written deposition but merely said the original certificate got lost but only turned to say at cross-examination that, it got lost when thieves invaded their house. The learned counsel submitted that, because the evidence had no pleading to anchor it, it goes to no issue and must be discountenanced. The learned counsel thereafter moved to issue 2.
On issue 2, which deals with reliefs claimed, and submitted that the claimant, having failed to prove her case, is not entitled to the reliefs claimed and cited Imah v. Okogbe (1993) 12 SCNJ 57 at 73 and Kodilnye v. Odu 2 WACA 336. The learned counsel finally urged the Court to dismiss the case. That ends the final written address of the learned counsel to the 2nd and 3rd defendants.
The 1st defendant did not file final written address but aligned with the address of the learned counsel to the 2nd and 3rd defendants, just reviewed above. I therefore move to the final written address of the learned counsel to the claimant.
B. Final Written Address of the Claimant
I.C.U. NOSIRI franked the final written address of the claimant. The learned counsel formulated two issues, they are:
Whether the purported termination of the claimant’s appointment with the 1st defendant was proper, lawful and Constitutional [sic].
If the answer to the above is in the negative, whether the claimant is entitled to all the Reliefs she claimed. [sic]
Arguing issue 1, the learned counsel submitted that, it is consensus amongst parties that, the claimant’s appointment has statutory flavour by virtue of the public service rules. The learned counsel submitted that, by virtue of section 122 (1) & (2) of the Evidence Act, which makes the public service rules subsidiary legislations, the claimant needs not tender the Public Service Rules. The learned stated that however, the claimant tendered Chapter 4 of the Public Service Rules of Imo State [Exhibit F], which governs discipline of staff. The learned counsel argued that, the allegation against the claimant is that, she failed to produce original of her baptismal certificate to authenticate the photocopy in her personal file, and as such, the Committee recommended her for termination; and she was accordingly terminated. The learned counsel submitted that, the termination was not in consonance with the provisions of Chapter 4 of the Public Service Rules, because the claimant was not called upon to react to the allegations against her before her appointment was terminated. The learned submitted that, this is was against the spirit of Rule 04303 of the Public Service Rules of Imo State; and thus, makes the termination unlawful.
The learned counsel stated that the termination letter stated that the appointment was terminated on the ground of mutilation of baptismal certificate, and submitted that, the fact that the exact date in 1964 in which the claimant was born was not stated on the face of the photocopy could not amount to mutilation. The learned counsel submitted that the onus was on the defendant to show that it was mutilated and the defendant failed in this regard more so, when the Parish Priest where the claimant was baptized confirmed there was no mutilation. The learned counsel submitted that the allegation of mutilation is a criminal offence of forgery and the claimant must be convicted in a competent court first before the defendants could based her termination on that ground. The learned counsel submitted that, instead of following the proper procedure of interdiction pending trial in a competent court, the Audit Committee/Panel, which is not a court, usurped the functions of the courts and found the claimant guilty. The learned counsel submitted that the procedure adopted by the defendants herein was in conflict with section 36(4) of the 1999 Constitution. The learned counsel cited Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 SC; Sofekun v. Akinyemi (1980) 5-7 SC 1; Denleye v. MD PDC (1968) 1 ALL NLR 306; and FSC v. Laoye (1989) 2 NWLR (Pt. 106) 652.
The learned counsel submitted that the Audit Committee was an extraneous body to the contract of employment of the claimant and thus the defendants breached the terms of the employment be failing to comply with the Public Service Rules. The learned counsel submitted that therefore all the steps taken before the Audit Committee/Panel was null and void. On this the learned counsel cited Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) to the effect that in terminating an employment with statutory flavour strict compliance with the rules of engagement must be observed. The learned counsel submitted that by virtue of Imo State Legal Notice No. 25 of 1991, the 1st defendant is a public service; and that the defendants did not deny this as pleaded in paragraph 2 of the Statement of Facts. The learned counsel submitted that in view of the non-compliance with the relevant rules, the termination was improper, null and void. The learned counsel submitted that issue 1 must therefore be answered inn favour of the claimant; and moved to issue 2.
Under issue 2, the learned counsel submitted that following the decisions in Olaniyan v. University of Lagos [supra]; Psychiatric Hospital Management Board v. Ejitagha (2000) 79 LRCN 2004, 2031; Ekperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 and Olatunbosun v. NISER (1988) 3 NWLR (Pt. 80) 25 the claimant must be regarded as still in service and reinstatement ordered. The learned counsel submitted that issue 2 must also be answered in favour of the claimant. There ended the addresses of the parties, as no reply on points of law was filed.
The next thing is to give my decision on the rights of the parties. In doing this, I have taken into consideration all the necessary conditions precedent. I have painstakingly studied the pleadings, the written depositions of the parties adopted in Court and the evidence under cross-examination and the demeanours of the witnesses. I have equally carefully studied the arguments proffered in the final written addresses and taken pains to study the pertinent authorities cited [statutory and cases]. I took all these into consideration before arriving at my decision. Evidence shall abound in the decision. I am aware that I did not summarise the pieces of evidence led by the parties but nonetheless, I have carefully studied these pieces of evidence and proof of this would be evident by constant references to them where applicable.
However, my decision shall be divided into two parts. Part A shall deal with the objection pleaded against the jurisdiction of the Court, while Part B shall deal with the substantive case. To the decision I now go.
COURT’S DECISION
A. Decision on Objection to the Jurisdiction of the Court
Before I go into the substantive decision, I wish to touch on some important preliminary points. The first deals with the objection to the jurisdiction of the Court pleaded by the defendants – see paragraph 15 of the 2nd and 3rd defendants’ pleadings and paragraph 16 of the 1st defendant’s. The defendants by these paragraphs cited the Public Officers Protection Law of Imo State and the Limitation Law of Imo State, and said the cause of action arose on 4th March 2004 while the action was filed 16th May 2009 and therefore, ran foul of both laws. They said the Public Officers Protection Law specified 3 months post-cause of action bar while the Limitation Law specified 5 years post-occurrence of cause of action bar. At paragraph 16, the 1st defendant also raised the issue of failure to file pre-action notice.
I ought not to have bothered to treat these because arguments were not canvassed thereto in the final written address of the defendants; thus, they ordinarily ought to be deemed abandoned. However, I have to take cognisance because, the first touched on issue of substantive threshold in nature, while the second is also a jurisdictional issue that could be validly raised in pleadings. On the issue of the Public Officers Protection Law, I found at p. 185-186 of file, CTC of ruling dismissing the objection, which had been raised and argued before the matter was transferred to this Court. The High Court of Imo State, which delivered the ruling, being a court of co-ordinate jurisdiction, I am functus officio the issue – see Tortya v. Wurukum Village Market Women Multi-purpose Co-operative Society Limited & Anor (2013) LPELR-20713 (CA) 14-16, A-C. Besides, I even concur with the decision, as perfectly correct, in view of the very recent decision of the Supreme Court in National Revenue Mobilisation Allocation and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Ors (2019) 2 NWLR (Pt. 1656) 247 at 270-271, which emphatically held that, the Public Officers Protection Act is not applicable to contract of service/contract of employment, ipso facto, the Public Officers (Protection) Law.
On the five-year general Limitation Law, I found that, the case was not filed outside five years, as pleaded because the anniversary of five years reckoned from 4th May 2004 pleaded, as the occurrence of the cause of action and 16th March 2009 pleaded, as the date this action was commenced, is 4th May 2009, and this action was filed 16th March 2009, a month and some days to the anniversary of 5 years. So, the Limitation Law of Imo State did not catch this action. I move to the issue of failure to serve pre-action notice raised by the 1st defendant in its pleadings.
There are two methods of raising failure to issue and serve pre-action notice – see Eti-Osa LG v. Jegede (2007) LPELR-8464 (CA) 25-26, A-E. The 1st defendant adopted the second, by pleading it as a shield. It did not file final written address and this issue was not raised nor argued in the final written address of the 2nd and 3rd defendants it aligned with. It is therefore deemed abandoned, and I so hold – see Umar v. Bayero University, Kano (1988) LPELR-3358 (SC) 14, D-G. In any case, I even found tendered, the proof of service of the pre-action notice in Exhibit H. Maybe that is why the 1st defendant eventually kowtowed on this issue. Hence, all the objections to the jurisdiction of the Court failed. I move to the issue of ID J
The learned counsel to the counsel for the 2nd and 3rd defendants, who raised objection to the admissibility of the document at trial, reserved his grounds till the final address stage. But none was marshaled against the document thereat. The objection is therefore deemed abandoned – see Umar v. Bayero University, Kano [supra], and I so hold. I found the letter was pleaded in paragraph 9 of the Statement of Fact. It is therefore relevant. It is accordingly admitted without objection, as Exhibit J.
I now move to the substantive decision: that is, Part B of the decision.
B. Decision on the Substantive Case
In deciding this case, I adopt the two issues formulated by the learned counsel to the claimant. Though, the two sets of issues formulated by both sides are not too dissimilar, but issue 1 of the 2nd and 3rd defendants appears to leave the substance for the ancillary, as such, issue 1 of the claimant covers adequately all the issues thrown up by this case than those of the learned counsel to the 2nd and 3rd defendants. I take issue 1 first.
ISSUE 1: WHETHER THE PURPORTED TERMINATION OF THE CLAIMANT’S APPOINTMENT WITH THE 1ST DEFENDANT WAS PROPER, LAWFUL AND CONSTITUTIONAL?
Under this issue, two questions need to be answered. They are: 1. Was the proper procedure followed in the termination of this appointment? And 2. What is the law where purely criminal allegation formed the basis of termination? In answering the first of the two questions, I found that the learned counsel to the 2nd and 3rd defendants misconceived the cause of action herein, as reflected in the issue 1 he formulated and the arguments presented in the address. So, the arguments canvased go to no issue. Let me preface my decision here with the reasoning of this Court in its unreported judgment in Suit No. NICN/OW/56/2017 – Eleagu Christain Chuks v. Abia State Universal Basic Education Board [Delivered 02/03/2018] p. 15-16, para. 2, from line 6, wherein this Court expatiated the law on this type of situation thus:
“But let me quickly observe that this dispute is misplaced because of failure of the defendant to appreciate the grouse of the claimant. The cause of action of the claimant is alleged illegal termination of appointment. In proving this, the claimant only needs to show three things: (1) that he was sacked, (2) that in sacking him, the defendant did not follow the proper procedure as laid down in the relevant laws; and (3) that, once failure to follow the proper procedure is established, the proper orders to make by the Court are reinstatement and payment of areas [sic] of salaries. In all these, the claimant need not prove that he made a mistake in filling the wrong date of birth or that the defendant captured the wrong date of birth. These are very much irrelevant to his case. It might well be that the filling of the wrong date of birth is the cause of action of the defendant in sacking the claimant: that is, the reason why the defendant sacked the claimant. That is understood. It is the consequence of the action of the defendant: that is, the sacking of the claimant that is the cause of action of the claimant; and in this, his main complaint is about the manner of the sacking. So, a distinction must be drawn between cause of action of the defendant and the cause of action of the claimant: they are not coterminous as shown above.”
As reflected in issue 1 above, the main grouse [that is the cause of action of the claimant] is that, the defendants did not follow the proper procedure in terminating her appointment – see paragraphs 8, 13, 14, and 15 of the Statement of Facts. When issue of procedure is raised, it takes the place of threshold point because, it is external to the cause of action of the defendant and looks at the form rather than the substance, but the form [procedure] is created or evolved to protect the substance on both sides for the overall benefits of the society. So, in such instance, prove of whether or not the claimant committed the mutilation in issue is strictly irrelevant. The earlier this is understood, the better in resolving this dispute. The employer in this regard must always bear it in mind that the civil/public servant/officer is not a mere servant, as in common law employment. His or her employment has statutory flavour. And the Public or Civil Service Rules, which protect this employment, has constitutional force – see Imolame v. WAEC (1992) LPELR-1500 (SC) 16, C-E – and as such, must be obeyed to the letter, in the process of carrying out disciplinary actions, especially when termination is in the offing, otherwise, such unconstitutional exercise of power is liable to be declared null and void – see Osisanya v. Afribank Nigeria Plc (2007) LPELR-2809 (SC) 17-18, E-G, where the Supreme Court expatiated this point:
“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under [sic], any person holding that office or in that employment enjoys a special status over and above the ordinary master servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in appropriate proceedings.”
There is no doubt that the employment here has statutory flavour. The 1st defendant accepts this much when it pleaded that, “the claimant being a civil servant, was subjected to the authority of the Imo State Civil Service Commission.” This is notwithstanding that; it sought later to make a distinction between public and civil servants, which distinction was also later conflated in paragraph 12 of its Statement of Defence. The same thing was pleaded in the Statement of Defence of the 2nd and 3rd defendants – see paragraphs 2 and 8. The bottom line is that, it is agreed on all sides that, the Civil Service Commission is the authority that could lawfully terminate the appointment in question. The State Civil Service Commission, like the Federal Civil Service Commission, is a creation of the Constitution with exclusive jurisdiction over the discipline of civil/public servants – Shitta-Bey v. FPSC (1981) LPELR-3056 (SC) 31-32. Section 202 of the 1999 Constitution vests the Civil Service Commission of a State with exclusive powers, only as limited by the Constitution, to exercise disciplinary control over civil/public servants, without the control of any external body.
The claimant pleaded the Imo State Public Service Rules – see paragraph 13 of the Statement of Facts, and tendered Chapter 4 of the Imo State Public Service Rules, as Exhibit F. Though, I note that, the claimant did not plead the very provision[s] of the rules that was breached but pleaded sufficient facts showing what the defendant ought to do, to properly sack her, which were allegedly not done in accordance with the Imo State Public Service Rules – paragraphs 13 and 14 of the Statement of Facts. The defendant agreed that, the Civil Service Commission is the body that could legally discipline the claimant – paragraphs 2 and 8 of the 2nd and 3rd defendants’ Statement of Defence and paragraph 2 of the 1st defendant’s Statement of Defence. Both the claimant and the defendants failed to allude in their pleadings to the very provisions of the Imo State Public Service Rules to justify their individual positions but the claimant specifically pleaded the breach of the Public Service Rules, as her cause of action while the defendants did not mention any specific law or rules that covered their actions in issue nor cite any in their final written address.
However, the learned counsel to the claimant cited Rule 04303 of Chapter 4 of the Imo State Public Service Rules in his final written address, and argued that, where any tribunal of enquiry is set up by government, before any disciplinary actions could be lawfully carried out on the recommendations of such tribunal, the staff affected must be called upon and heard. The learned counsel to the claimant also submitted that, by virtue of section 122(1) & (2) of the Evidence Act, the claimant is not obliged to even tender the Public Service Rules, as the Court is obliged to take judicial notice of it, being a subsidiary legislation made pursuant to the 1999 Constitution. I agree with the position of the learned counsel to the claimant. The Court of Appeal certified this view in Haruna v. University of Agriculture, Makurdi & Anor (2004) LPELR-5899 (CA) 38-39, E-E.
I therefore hold that, in line with the principles of law that, you don’t plead laws – Mobil Producing Nig. Unltd & Anor v. Udo Tom Udo (PC No. 542) (2008) LPELR-8440 (CA) and O.J. Bamgbose, Digest of Judgments of Supreme Court of Nigeria Vol. 1, p. 260, para. 3091, that, failure of the claimant to plead the very provisions of the Public Service Rules breached is not fatal to her case since, breach of the Imo State Public Service Rules, was conspicuously pleaded and the facts pointing to the provisions breached were also sufficiently pleaded. Since the Public Service Rules are subsidiary legislations, which courts are bound to take judicial notice of, the learned counsel to the claimant therefore rightly referred to the relevant provisions breached in his address. The defendants were not misled in the pleadings of the claimant, as to the nature of the case of the claimant and the cause of action. This situation must be severed from what is applicable in employment without statutory flavour where the law is that, the claimant must plead and tender the conditions of service because the conditions of service therein, are not legislations which the courts are bound to judicially notice, they must therefore be pleaded and tendered, as explicated in Okomu Oil Palm Company Limited v. Iserheinrhien (2001) LPELR-2471 (SC) 8-9, E-C. It is sufficient in employment with statutory flavours, if the terms and conditions of service breached are pleaded, as manifested in Morohunfola v. Kwara State College of Technology (1990) LPELR-1912 (SC) p. 15-16, paras. C-B, where the Supreme Court opined:
“The appellant’s cause of action was based on contract of employment. It was absolutely essential therefore for the appellant, as plaintiff, to plead in his statement of claim the fact that there was a contract of employment between him and the respondent, as defendant. And furthermore, to spell out in the statement of claim what terms of the contract were. If this was not done then the material facts necessary to formulate a complete cause of action had not been averred and the statement of claim was bad…
‘In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which has been breached would be admissible at trial; and this will be fatal to the action since it will lack foundation.” [Underline supplied for emphasis]
The claimant pleaded that the 1st defendant employed her and that she was a public servant. She pleaded her letters of employment, confirmation, promotion and termination. She pleaded too that, the Audit Panel had no vires in the matter of disciplining her and that; the appropriate organs did not hear her before the defendants terminated her appointment. She definitely has sufficiently satisfied the requirements specified in the above case. She even went further to tender Chapter 4 of the Public Service Rules, which deals with the procedures of discipline of civil/public servants in Imo State. Now, Rule 04102 of the Imo State Public Rules vests the power to dismiss and exercise discipline on public/civil servants on the Imo State Civil Service Commission and Rule 04103 delegates the power of the Imo State Civil Service Commission to dismiss public/civil servants on level GL 01-GL 03 to the permanent secretaries and heads of Extra-Ministerial departments, which the 1st defendant is. The claimant pleaded in paragraph 6 of her Statement of Facts that she was on GL 04, Step 9, as at 2002 and tendered Exhibit B in support.
Thus, it is the Imo Civil Service Commission alone could dismiss the claimant by itself without any external interference or directive. A perusal of Exhibit E, the letter of dismissal, cloaked as letter of termination, shows that it was the one Mrs. Osuji M.E. (Programme Manager of Imo State Agricultural Development Project) that exercised the power of dismissal and this power was not exercised for and on behalf of the Civil Service Commission, which all the defendants agreed, has the authority to dismiss the claimant – see paras. 2 and 8 of the 2nd and 3rd defendants’ Statement of Defence and para. 2 of the 1st Defendant’s Statement of Defence; and the claimant is, by virtue of Rule 04103 of the Imo State Public Service Rules, outside those that could be dismissed by heads of extra-ministerial departments, which the 1st defendant is.
Thus, it is clear that the Programme Manager of the 1st defendant acted very much without authority. To make matters worse, it is clear that the 1st defendant did not even, on its own accord, exercise this power, but on the directive of the government and on the report of the State Audit Panel without any input of the Imo State Civil Service Commission. This amounts to flagrant usurpation of the functions of the Imo State Civil Service Commission/or the 1st defendant. The Imo State Civil Service Commission is a constitutionally independent body whose powers cannot be usurped by anybody – see Hart v. Military Governor of Rivers State (1976) LPELR-1355 (SC) 24-25, F-B and Nawa v. AG Cross River State (2007) LPELR-8294 (CA) 49, A-F. Hart’s case was very apt on this issue while interpreting section 64(1) of the defunct 1963 Constitution of Rivers State. The Supreme Court held at p. 24, C-F thus:
“A close perusal of the provisions of sections 64(1) and 67(1) of the Constitution referred to above shows clearly that while the power to remove a permanent secretary from his duty post as permanent secretary is in the Military Governor of the State, the power to dismiss him as public officer from the public service of the State or to exercise disciplinary control over him as such public officer is vested by the Constitution in the Public Service Commission of the State. That being the case, it seems to us that, by referring the disciplinary aspect of the matter to the Military Governor for decision as the Public Service Commission of the Rivers State had done in the case at hand, the Commission had abdicated its constitutional responsibility in the matter…”
Relying on Hart’s case, the Court of Appeal directly interpreted section 202 of the 1999 Constitution in Nawa’s case p. 40-41, para. B-G [supra] and came to the following conclusion:
“Therefore, the Governor of Cross River State having appointed the appellant (Permanent Secretary) upon the recommendation of Civil Service Commission of Cross River State as far as he remains in service, the Civil Service Rules and Regulations guide his appointment and matters of his discipline…‘There is no doubt that what the military governor did in the case in hand was ultra vires his constitutional power. This renders his order that the appellant be retired from the public service a nullity.’ It is therefore, not enough that a statute has conferred a particular power on a public functionary; it is of the essence that the recipient should be capable of exercising such power both in fact and in law.”
It is very clear therefore, that, the directive of the governor to the Programme Manager of the 1st defendant to dismiss the claimant was totally unlawful. I take note that the word used is ‘government’, but there is no evidence before me that, all the three arms of government [or even two] partook in the directive. I therefore take it to mean that; the reference was to the governor, who is the embodiment of the executive powers of the state. It is clear that, in dismissing the claimant, the defendants totally bypassed the Civil Service Commission/1st defendant with a contemptuous disregard.
I think in this regard, it might not really be necessary to discuss the issue of Rule 04303 of the Imo State Public Service Rules raised by the learned counsel to the claimant to the effect that, the Civil Service Commission cannot dismiss or discipline a civil/public servant based on recommendations of a tribunal of enquiry unless and until after it has heard the civil/public servant on these allegations. This I say because, the provision, to me, is directed to the Civil Service Commission itself and not to the defendants that dismissed the claimant herein. It only applies if it is shown that the Civil Service Commission dismissed the claimant, and not when the Civil Service Commission, as in this case, did not carry out the dismissal, where the governor completely usurped its functions. Nevertheless, it goes to show the level of degenerative illegality involved in the dismissal. If the Civil Service Commission, who is constitutionally vested with the power of dismissal of civil/public servant is circumscribed by Rule 04303 of the Imo State Public Service Rules, in exercising its powers based on the recommendation of a tribunal of enquiry, it shows how much more, the defendants lack powers to act on their own volition without recourse to the Civil Service Commission to dismiss the claimant herein.
Inferentially too, the defendants were in breach of the provisions of Rule 04303 of the Imo State Public Service Rules, which provides that the Civil Service Commission cannot discipline a civil or public servant on the recommendations of a tribunal of inquiry unless and until it invites the affected civil servant to react to the allegations contained in such recommendations and the affected staff has reacted before it could exercise its powers. There is no pleading from the defendants to the effect that anything regarding the disciplinary process of the claimant was taken to the Imo State Civil Service Commission and no evidence on this was produced at the trial. So, apart from the illegal usurpation of power of the Imo State Civil Service Commission carried out by the governor and the Programme Manager of the 1st defendant, as earlier discussed above, the defendants were also clearly and inferentially in breach of the provisions of Rule 04303 of the Imo State Public Service Rules, as the letter of dismissal clearly provided that she was dismissed merely on the recommendation of the State Audit Committee/Panel, without any evidence of passing through the Imo State Civil Service Commission. The State Audit Committee/Panel is in this respect, a tribunal of inquiry. For this additional reason, the dismissal, cloaked as termination, is doubly bad in law.
Before I complete this section, let me quickly make a remark on the pleading, deposition and argument that the Audit Committee/Panel is an extraneous body, contemplated by the contract, which can recommend the dismissal of the claimant – see paragraph 15 of the deposition of DW1. This pleading and arguments do not still answer the case of the claimant. If the Audit Panel/Committee could recommend the removal of the claimant, did that recommendation get to the Civil Service Commission, which the defendants have admitted, retained the ultimate powers to remove the claimant – see paragraphs 11 and 13 of the deposition of DW1? The answer is no. It was rather the governor that approved the removal and directed the Project Manager of 1st defendant to comply. The 1st defendant, allegedly a statutory body did nothing else, other than for its Programme Manager, to carry out the matching order of the governor. This is contrary to due process of the law. Thus, the first question under issue 1 is resolved in favour of the claimant and against the defendants.
This is enough to end the case but I propose to give my opinion on the second question for the purpose of fullness. I move to the second, which is on the question of the applicable law on termination based purely on criminal allegations. This is another aspect of procedure. I think the law is as stated in Dongtoe v. CSC, Plateau State (2001) LPELR – 959 (SC) and Arinze v. FBN (2004) LPELR-551 (SC). In Dongtoe v. CSC, Plateau State, p. 34 – 35, paras. E – G, the Supreme Court stated the law thus:
“It is well settled that where there is an accusation of the commission of criminal offences, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt. There is no doubt that an administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. However, where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises, and no burden of proof rests on the accuser, the burden of proof having been discharged by the admission of the accused.”
The seeming dichotomy introduced in this area of the law where the Supreme Court seemed to have laid down the guiding principles is that Arinze v. FBN [supra] seemed to indicate that, when an incontrovertible and proven case of criminal misconduct is established against a person, such could be dismissed summarily, without the need for a court to try the person. Nevertheless, it is clear that Dongtoe v. CSC, Plateau State still remains a valid authority, where there is no admission, and there is therefore need to establish the guilt of the accused, the proper forum must still be the Court. It should also be noted that this employment is garnished with statutory flavour, unlike Arinze v. FBN [supra], which relates to purely master-servant employment. Hence, whether or not incontrovertible evidence was established, procedure must still be followed in the instant case. In the case at hand, there is no admission at any point.
The allegation here is that, the claimant mutilated [another form of forgery] the baptismal certificate presented as her evidence of date of birth. This is purely a criminal offence. And the letter of dismissal indicated this clearly as the offence for which the claimant was dismissed. The claimant resisted the allegation by stating clearly that, the photocopy tendered was the one she had, which was the same with the one in her file with the 1st defendant; and that, the original was sighted at the point of employment before it got lost and that, she explained to the Audit Panel/Committee, which insisted she must produce the original, wherein she got a certified copy from the parish where the baptismal certificate was issued and also a letter from the then parish priest and also a directive of the then Commissioner for Agriculture to the 1st defendant to write the Audit Panel/Committee that her case be reconsidered, which was done.
She notified the defendant to bring the original. The claimant did not tender a copy at trial but, I observed that the receipt of the document was not effectively denied in the Statements of Defence of the defendants – see paragraph 9 of the 2nd and 3rd defendants’ Statement of Defence and 11 of the 1st defendant’s Statement of Defence. The defendants just denied generally and put the claimant to the strictest proof. These amount to admission – see Nigeria Postal Service v. Musa (2013) LPELR-20780 (CA) 45-46, A-F. I have equally read the alleged letter from the parish priest and found that it invited the defendants for inspection of the registry copy. And the defendants failed to do this.
The case of the defence is tantamount to saying, there is incontrovertible evidence of mutilation and that, the claimant did not mention the exact circumstances of the loss of the baptismal certificate at the earliest possible time and failed to produce affidavit of loss of the original. I take note that the claimant pleaded that, the Audit Panel/Committee insisted on production of the original and not that, she should bring an affidavit. In any case, if the allegation is mutilation, issue of bringing affidavit is of no moment, as it would not clear the issue of mutilation. I have examined the two main documents in issue [Exhibits C and D] and found that, curiously they both simply stated that, the claimant was born in 1964, without further details. This raises some form of doubt that some parts are missing, and might have been mutilated, which required explanation but, it would appear that the claimant provided the explanation, as shown in her pleadings and evidence. Mutilation would appear to be the main grouse of the defendant, for to mutilate, means to remove some essential parts of something. Some essential parts are obviously missing in the date of birth supplied.
The New International Webster’s Comprehensive Dictionary of the English Language (Typhoon Media Corporation, 2010 Edit) p. 839 defines the word ‘mutilation’ in the 2nd definition as, “To damage or injure by the removal of an important part or parts.” This view is also shared by the Black’s Law Dictionary (Ninth Ed.) p. 1115 and confirmed by the Court of Appeal in Levi v. The State (2019) LPELR-46837 (CA). Mutilation should therefore be distinguished from alteration simplicity. But I take cognisance that; the fine distinction might not be valid without more in a purely non-professional situation like this. Hence, both might be coterminous at times and might be used loosely and interchangeably. But it appeared certain in the pleadings and evidence of the defendants that the word was employed in its ordinary sense, to denote removal of the other details of date of birth.
The argument of he learned counsel to the 2nd and 3rd defendants that the claimant only pleaded that her original baptismal certificate got lost without adding that this happened when thieves invaded their house, which she now supplied under cross-examination and that, the piece of evidence should not be countenanced for this reason, failed to take good cognisance of the nature of pleadings and the effect of facts procured at cross-examination. Only facts are pleaded and not evidence – see MTN Nigeria Communication Limited v. Corporate Communications Investment Limited (2019) LPELR-47042 (SC) 24, B-C. The pleading that the document was lost is therefore sufficient pleading of the issue of its being lost. And when the claimant now explained the circumstances of its getting lost under cross-examination, this becomes part of her evidence, since she has pleaded the fact of its getting lost and now supplied the evidence under cross-examination – Alagwuonye & Ors v. Mbadiegwu & Anor (2017) LPELR-42793 (CA) 31-32, A-E and MTN Nigeria Communication Limited v. Corporate Communications Investment Limited [supra] p. 19-23, F-C. This covers any deficiency in her evidence-in-chief in this regard. The learned counsel should know the danger inherent in unplanned cross-examination – that is exactly what happened in this instant. It is cross-examination boomeranged. There was absolutely no need for cross-examination to that effect. When a gap has been spotted in the case of the other side. It is an issue for address, and not for cross-examination.
I wish to say too, in regard to paragraph 9 of the deposition of DW1 to the effect that, claimant promised to produce the original at employment but failed to do so that, that deposition, apart from the fact that, issue had been joined on it, is not plausible at all. The claimant was employed in 1995 and dismissed in 2004, a period of about 9 years, yet the 1st defendant did nothing! Besides, the DW1 deposed that, she got all the information deposed to, from the file of the claimant and records, yet she did not tender the page or CTC of the page where the claimant entered into this pledge! And the claimant had deposed to contrary evidence that, the 1st defendant sighted the original at documentation when newly employed before it got lost. It could be seen that, the evidence of the defendants on this point could not induce belief.
From the above scenario, it could not be said that, there is incontrovertible evidence of the quilt of the claimant. It is also clear that, the claimant had not admitted the crime in question. Hence, the case ought to have been referred to the police for proper investigation while the claimant is interdicted pending the completion of investigation/prosecution in accordance with the law laid down in Dongtoe v. CSC, Plateau State [supra]. By dismissing the claimant, purely on controvertible allegation of crime, which has been denied, is a breach of due process and therefore unlawful. Failure in this regard too, is fatal to the termination and renders it ineffective, and I so hold. The 2nd and 3rd defendants admitted this much in para. 12 of their joint Statement of Defence, when they pleaded that:
“In further answer to paragraphs 14 and 15 of the statement of claim [sic], steps are being taken by the 2nd and 3rd defendants to charge every other people who are being terminated on grounds of falsification of official records or mutilation of official records or any other criminal offences.”
By this, the defendants admitted they jumped the gun by dismissing the claimant before proposing to prosecute her thus, putting the cart before the horse, doing, what was supposed to be done first, later. It follows that; the second question under issue 1, is also resolved against the defendants and in favour of the claimant. Having answered the two posers formulated for issue 1 in favour of the claimant and against the defendant, it follows that issue 1 is resolved in favour of the claimant and against the defendants. I need to point out that either of the two questions answered in favour of the claimant leads to the same result. I therefore hold that, for either or both questions, the employment of the claimant was unlawfully determined and the termination/dismissal is therefore null and void; and of no effect ab initio. I must now move to issue 2, which deals with the reliefs claimed.
ISSUE 2: IF THE ANSWER TO ISSUE 1 IS IN THE NEGATIVE, WHETHER THE CLAIMANT IS ENTITLED TO ALL THE RELIEFS CLAIMED?
Issue 1 has been resolved against the defendant and in favour of the claimant so, the claimant must be entitled to some reliefs because the maxim is ibi jus ibi remedium. What is the relief granted in cases of unlawful termination of employments clothed with statutory flavours? The Court of Appeal answered this question in Maliki v. Michael Imodu Institute for Labour Studies (2008) LPELR-8467 (CA) 52, paras. B-D:
“Where, however, an appointment governed by statute is terminated unlawfully, for example, because the employee was not afforded fair hearing, a court will not hesitate to void such a purported act of termination. In deed, the court, in such a situation, will not only vacate the termination, it will equally order the employer to reinstate him/her.”
I have closely examined the three reliefs claimed and found that reliefs (a) and (b) are the normal reliefs claimed in cases of unlawful dismissal in employment garnished with statutory flavours, while part of relief (c) is normally claimed too. The other parts of relief (c) are unusual. Arrears of promotion and incremental are therefore not things granted as matters of course. Unusual things demand unusual remedies. They are in the nature of special damages, which must be strictly proved. They do not flow naturally from unlawful termination. What flows naturally and logically from unlawful termination is reinstatement to the position on which the termination occurred and payment of arrears of salaries, as if the termination never happened. If a terminated staff must claim arrears of promotions and incremental, s/he must plead and lead evidence showing that s/he met all criteria for promotion, with regard to qualification, etc. and must in addition, plead and show by evidence that, it was because of promotion that she was terminated, either on ground of discrimination or pure vendetta. In short s/he must make a special case to take the case out of the normal. The claimant herein has done none. Hence, the claimant is not entitled to arrears of promotion and incrementals. She is only entitled to reinstatement to the position she was occupying at the point of termination, that’s GL 04, STEP 9 and the arrears of salaries on this level from the time of termination till the date of compliance with the judgment of this Court. I so hold. I must therefore end this judgment by granting the necessary reliefs and the necessary consequential orders. There I go.
CONCLUSION
I accordingly grant reliefs (a) and (b) in their entirety. I grant relief (c), only to the extent that: the defendants are hereby ordered to pay the claimant the arrears of salaries from the date of the unlawful dismissal on 4th May 2004. The other aspects of relief (c) are hereby refused and dismissed. I award cost of 100thousand Naira against the defendants. The judgment is to be complied with within 30 days thereof, failing, which the judgment sums shall begin to attract 10% interest per annum.
Judgment is entered accordingly.
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HON. JUSTICE O.O. AROWOSEGBE
JUDGE
NATIONAL INDUSTRIAL COURT OF NIGERIA
