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Joseph Edem -vs- Police Service Commission & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 21ST NOVEMBER, 2019                                      

 

SUIT NO: NICN/UY/01/2018

 

BETWEEN

 

JOSEPH EDEM                                                                      CLAIMANT

 

AND

 

  1. POLICE SERVICE COMMISSION
  2. INSPECTOR GENERAL OF POLICE                       DEFENDANTS
  3. COMMISSIONER OF POLICE,

AKWA IBOM STATE                                                           

 

 

REPRESENTATION

JOHN UKPE AND STEPHEN EFFIONG FOR THE CLAIMANT

NO REPRESENTATION FOR THE DEFENDANTS

 

JUDGMENT

 

This is a transferred case from the Federal High Court, Uyo sometimes in 2018. The Claimant commenced this action in this court on the 30th January, 2018 by filing a Complaint accompanied by Statement of Facts, Statement on Oath and List of documents praying for the following reliefs against the Defendants jointly and severally:

  1. a)A declaration that the purported dismissal of the Claimant from the employment of the Police Service Commission by a letter dated 15th  September, 2015 and subsequent rejection of his appeal in the letter dated 15th March, 2016 is null and void and of no effect.
  2. b)A declaration that the Claimant is still in the employment of the Nigeria Police Force.
  3. c)An order directing the Defendants to reinstate the Claimant to his status as an Assistant Superintendent of Police (ASP) without prejudice to his entitlements and promotions which might have accrued to him during the period of his purported dismissal.

 

The Defendants did not enter any formal appearance, file any defence and did not make any legal representation throughout the hearing of this case in spite of been put on notice at any given time. One Ofonmbuk Charlie announced appearance for the Defendants on 16th April, 2018 and applied for a short adjournment to file the requisite processes but never came back.  It was against this background that the Claimant applied and was granted an order on 15th January, 2019 setting down the matter for prove pursuant to Order 35, Rule 6 (2) of the rules of this court.

 

At the trial which commenced on 25th March, 2019, the Claimant testified for himself as CW and tendered Seven (7) documents as Exhibits as follows:

1. Exhibit CW 1 – Query dated 21st August, 2013.

 
2. Exhibit CW 2 –

 

 Query Representation of Serious Misconduct 23rd August, 2013 (Reply to Query).
3. Exhibit CW 3 – Constitution of Eternal Christ Religious Revived Order of New World Ministry Inc. World-Wide (ECRRONW).

 
4. Exhibit CW 4 – Request for the issuance of Serviceable Beretta Pistol dated 2nd June, 2009.

 
  1.      Exhibit CW 5        –      Letter of Dismissal dated 15th September, 2015.

 

  1.       Exhibit CW 6       –      Re: Appeal Against Dismissal dated 15th March, 2016.

 

  1.       Exhibit CW 7       –     Proceedings and observations for Force Disciplinary

Committee, Force Headquarters dated 4th March, 2015.

 

At the close of trial, the Claimant filed his final written address on 28th October, 2019 and by leave of court adopted same on 4th November, 2019.

 

The Case of the Claimant

 

The case of the Claimant as stated in the Statement of Facts and Statement on oath are as follows:

 

  1. That the Claimant was enlisted into the Nigeria Police Force on the 1st February, 2000 and was given the rank of a Recruit Constable after a six month basic training. He was promoted to Cadet Inspector of Police by the Police Service Commission on 15th August, 2002. After attending various courses and trainings and having passed the requisite examinations, he was promoted to the rank of an Assistant Superintendent of Police on 1st January, 2009. Sometimes in January, 2013, he was posted to the Divisional Police Headquarters, Nsit Ubium Local Government Area as Divisional Crime Officer II.

 

  1. That on the 15th day of August, 2013, he received signal from State Police Headquarters, directing him to interview the Commissioner of Police, Akwa Ibom State through the officer-in-charge of Anti Kidnapping Squad, in the person of Supol Sunday Dogo on the 16th day of August, 2013.

 

  1. That on his way to interview the Commissioner of Police on the 16th day of August, 2016, he sighted from a distance, two young men dragging each other by the road side along Afaha Offiong Road at about 7.30am. That he slowed down and moved towards them and as soon as he stopped his car and they noticed him as a policeman on police uniform, they disengaged and ran into the nearby bush and abandoned a locally made pistol on the ground which the Claimant picked and drove straight to Anti-Kidnapping Squad office in Uyo.

 

  1. That on his arrival at the Anti Kidnapping Squad, he was confronted with a petition written by one Engineer Joseph Bassey Effiong and other persons from his village against him. That after reading the said petition, he was ordered to make a statement and he did but was denied a copy of the said petition.

 

  1. That the petition by Engr. Joseph Bassey Effiong was as a result of the petition by some Family Heads against the Village Head and Engr. Joseph Bassey Effiong in respect of embezzlement of Village funds which they suspected him of being the brain behind the said petition.

 

  1. That while at Anti-­Kidnapping Squad and in course of making his statement, seven family heads from his village, namely, Chief Effiong Asuquo Udo, Chief Edet Akpan Akpan, Chief Joseph Ita Asuquo, Chief Asuquo Etim Udoitim, Chief Sylvanus Okokon Okon Edem, Chief Mark Ene Nyong and Chief Essien Udofia Udo arrived and told the officer-in-charge, that the allegations made against the Claimant and 32 others was false and made statements to the police to that effect.

 

  1. That after writing the statement, a team of Anti-Kidnapping police personnel led by Supol Mohammed Ibrahim took him to his house at Mbiakong Village, for a search and carried his portrait, prayer book, gown, church banner, turban, candles and books and took him to Central police Cell, where he was detained along aside with nine (9) other persons who were earlier arrested.

 

  1. That on the 19th August, 2013, DSP Sunday Dogo ordered for his release from the cell and escorted him to the office of the Commissioner of Police for interview, who having noticed some irregularities in the conduct of the investigation, transferred the case from the Anti-Kidnapping Squad to State Criminal Investigation Department (S.C.I.D.) for fresh and discreet investigation.
  2. That while he was still in detention and while the new Investigation Police Officer was obtaining statements from him and other persons, he was issued with a query in letter No. SH:6360/AIS/Vol. II/61 dated 21/08/2013 and served on him on the 22/08/2013 at about 1300 hours.

 

  1. That on the 23rd day of August 2013, he submitted his reply/representations on the allegations against him as contained in the query to Commissioner of Police as follows:

 

  1. a)He denied being a member of any cult and stated that ECRRONW is not a cult as alleged but a church and that it stand for “Eternal Christ Religious Revived Order of New World” founded in New York in 1875 which in Nigeria is called “Eternal Christ Religious Revived Order of New World Ministry of Nigeria Inc.”

 

  1. b)He also represented that ECRRONW is a church with its constitution and further stated that he is entitled to freedom of thoughts, conscience and religion which is protected by the Constitution and therefore did not contravene Rules 03030 (j) of the Police Service Rules, 2010 as amended.

 

  1. c)He stated that he was and is entitled to freedom of thoughts, conscience and religion which right is protected under the Constitution of the Federal Republic of Nigeria and did not contravene Rules 030301(j) of the PSR of the FRN 2010 as amended.

 

  1. d)On the allegation of insubordination for snapping a photograph wearing the rank of DSP which contravenes section 359 (42), he argued that the conduct does not amount to insubordination and relied on section 370 (1) of the Police Regulation which defined the offence of insubordination as:

 

“(1) insubordinate by word or demeanor (2) oppressive or tyrannical in conduct relating to an inferior in rank (3) use of obscene, abusive or insulting language to a member of the force (4) willfully or negligently makes a false complaint or statement against an inferior in rank”.

 

  1. e)On the alleged disobedience to lawful order for not returning a revolver pistol with six rounds of ammunition to the State Armoury, Uyo after tour of his duty but kept it for more than necessary contrary to rule 030301(m) of the Public Service Rule, he explained that he applied, signed and collected the berretta pistol with seven rounds of ammunition in line with Force Order 259 (5) and he had been rebooking the pistol in the Central Armoury Arms Movement Register and by Force Order No. 259 (5) an officer on inter-divisional transfer is allowed to take his rifle with him.

 

  1. f)On the allegation of serious misconduct regarding illegal possession of locally made pistol, he recounted the circumstances under which he came about being in possession of the said pistol on the 16th August, 2013, the same day he was detained. He further stated that he handed over the berretta pistol and the locally made pistol to the 2 i/c Anti-Kidnapping Squad when he was to be detained and denied that the pistol was recovered from him during the search. He also stated that but for his immediate detention on the said 16th August, 2013, he would have handed it over to the exhibit keeper in the Divisional Police Headquarters, Nsit Ubium.

 

  1. That despite these representations dislodging the allegations against him, he was dismissed by a letter dated 15th September, 2015 which he received only on 16th November, 2015.

 

  1. That on the instruction of his Legal Practitioner, he immediately appealed to the Police Service Commission for intervention and reinstatement.

 

  1. That the Force Disciplinary Committee of the Nigeria Police Force Headquarters in Abuja made on the 4th March, 2015 over his case and recommended that he should be reduced in rank from Assistant Superintendent of Police (ASP) to Inspector of Police.

 

  1. That in reaction to his letter of appeal in paragraph 10 above, the Police Service Commission, by a letter no. PSC/1524/111, dated 15th day of March, 2016, rejected the appeal.

 

  1. That on 14th January, 2018, he received a copy of Police Wireless Message   reference SH:4730/FS/FHQ/ABJ/SUB.l/82 dated 10th December, 2018, which promoted him from ASP to DSP with effect from 12th December, 2015. He is No. 47 in the list of senior officers promoted.

 

  1. That despite the above promotion, he is yet to be reinstated.

 

It is based on the foregoing that the Claimant decided to institute this action against the Defendant for the reliefs therein.

 

Claimant’s Submission

 

The Claimant formulated three (3) issues for determination, to wit:

 

  1. Whether by the nature of contract, the Claimant’s employment is governed by statute.

 

  1.        Whether the Claimant’s employment was terminated in accordance with the Police Act and Public Service Rules being the enabling law that governs the conditions of service of the Claimant.

 

             iii.       Whether the Claimant is entitled to the reliefs sought.

 

Issue 1:         Whether by the nature of contract, the Claimant’s employment is governed by statute.

The Claimant answered the issue one in the affirmative and submitted that the conditions precedent to the existence of an employment with statutory flavor are as decided in the cases of Federal Medical Centre, Ado-Ekiti v. Olayide (2013) 30 N.L.L.R (pt. 86) 172 at 208-209 paras 11 and 13 and Agbatiogun v. NNPC (2008) 13 N.L.L.R (Pt. 35) 236 at 255; para C-E. and relied on the holdings in the two cases. In Federal Medical Centre, Ado- Ekiti v. Olayide (Supra), the court held that:

”For an employment to be held to have statutory flavor, the following conditions must be met:

(a)             The Employer must be a body set up by statute.

(b)            The establishing statute must express provisions regulating the employment of the staff of the category of the employee concerned.”

 

In Agbatiogun v. NNPC (Supra), the court in determining when an employment enjoys statutory flavour, held thus:

 

“An employment or contract of service has statutory flavor in the sense that its terms and conditions of services are specifically provided for by statute or regulation made thereunder. The contract is said to be protected by statute if any person in the employment enjoys a special legal status over and above the ordinary common law master and servant relationship.”  

 

On the authority of these cases, the Claimant submitted that the Nigeria Police Force, is the body set up by section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Claimant further submitted that the National Assembly also promulgated the Police Act and Regulations Cap. P19, Laws of the Federation, 2004 which regulate the conditions of service of the Police Force.

 

Finally on the point, the Claimant submitted that his employment enjoys statutory flavour relying on the Supreme Court case of PHCN v. Offoelo (2014) 41 N.L.L.R (pt, 126) 167 at 207, paras A-B, where it was held:

“Where the condition of service of an organization is made pursuant to a statute, the appointment, promotion and discipline of staff made therein must attract statutory flavour.”

 

Issue 2:         Whether the Claimant’s employment was terminated in accordance with the Police Act and Public Service Rules being the enabling law that governs the conditions of service of the Claimant.

The Claimant started by submitting that his employment was not determined in accordance with the Police Act and the Public Service Rules and submitted the following as evidence:

  1. a)As a Senior Police Officer of the rank of Assistant Superintendent of Police, he was not supposed to be investigated by a Junior Police Officer in person of Police Corporal Samuel Udo, attached to Anti Kidnapping Squad. This is the position the Claimant maintained in Exhibit CW 2 which is the Reply to the query issued by the Defendants. Similarly, the Claimant stated that it was the same Police Corporal Samuel Udo who conducted the illegal search at his residence without his signing the search warrant as or/and a Magistrate as required by the Police Regulations, law and Force order no. 407 (1) (a).
  2. b)While the State CID was still going on with the investigation against the Claimant, he was issued with a query letter no. SH. 6360/Vol.11/61 dated 21/8/13 without the investigation report being submitted against the ethics of the Force.
  3. c)He was not given adequate opportunity to prepare for his defence in breach of his fundamental right of fair hearing.

 

  1. d)That ECRRONW which means Eternal Christ Religion Revived Order of the New World is a church denomination, of which he is a member and the prayer gowns, banners, candles and turbans with the inscription “ECRRONW” are parts of the doctrine of the Church and the defendants have not cross examined the Claimant on the above fact.

 

  1. e)The crime alleged to have been committed by the Claimant for being a member of a cult group called ECRRONW is not provided for in the Police Act, 2004.

 

  1. f)Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria guarantees the Claimant freedom of thoughts, conscience and religion.

 

  1. g)His depositions were unchallenged and on the authority of Best Vision Cont. Ltd vs. U.A.C.N.P.D.C. Plc (2003) 15 NWLR (Pt. 838) 594 ratio 8 facts which are not controverted or challenged by a Counter Affidavit are deemed to be duly admitted.
  2. h)Similarly, by the case of B.N Ltd. vs. Ogboh (1995) 2 NWLR 2 (Pt. 380) 647 at 654 and 669, when evidence is unchallenged, as in the instant case, the court ought to accept such evidence in proof of the issue in contest.

 

  1. i)Membership of a secret cult is a criminal offence and not one for the defendants to handle relying on Fatai-Williams, CJN, in Sofekun v. Akinyemi (1980) NSCC 175, thus:

 

“It seems to me that once a person is accused of a criminal offence/ he must be tried in a ”court of law” where the complaints of his accusers can be ventilated in public and where he would be sure of a fair hearing as set out in subsection (4) (10) of section 22 of the Constitution of the Federal Republic of Nigeria, 1979.” (Now S.36 of 1999 Constitution).

 

  1. j)The Defendants acted against the conditions of Service of the Claimant in dismissing him without being found guilty of being a member of a Cult group by a Court of law. The Court of Appeal cases of Abba v. JAMB and Anor (2015) 53  L.L.R (pt.177) 1 at 44-45 paras EE and Jibtil v. The Military Administrator, Kwara State & Ors. (2013) 37 N.L.L.R (Pt. 113) 167, 193, paras B-H

 

  1. k)The defendants were the accusers, prosecutors and the “judge” of the case against the innocent Claimant.

 

  1. l)The allegation of insubordination for snapping a photograph wearing the rank of DSP which contrary to section 359 (42), is not true as that conduct does not amount to insubordination and relied on the definition of the word in section 370 (1) of the Police Regulation. Besides, an officer of the rank of the Assistant Superintendent of Police cannot be tried by the provisions of Police Act as the Act only applies only to Junior Officers from the rank of Inspector down. The use of Police Act in a case against a Senior Police Officer is therefore unfounded and inappropriate.

 

  1. m)On allegation that the Claimant was disobedient to lawful order and serious misconduct, the Claimant repeated his explanation in Exhibit CW 2 that having obtained the revolver pistol officially, he could not return to the station to return it to the armoury as he was arrested and detained on the order of the 3rd defendant at the Police headquarters, Uyo and that he was the one who handed over the locally made pistol which he recovered from the fleeing young men and that the pistol was not recovered at his house. It is therefore inconceivable that a police officer, who owns or keeps an illegal pistol, will go with it to meet the 3rd defendant who summoned him to his office.

 

  1. n)The 1st and 2nd defendant set up Force Disciplinary Committee Panel to provide a cover to the planned dismissal of the Claimant from the Nigeria Police Force. The Panel in their report referenced  86066/FS/FHQ/ABJ/38 dated 4/3/15, Exhibit CW7 recommended that the Claimant be reduced from the rank of ASP, to the rank of Inspector of Police.

 

  1. o)Instead of heeding the recommendation of the panel, 1st and 2nd defendants acting the script of the 3rd defendant rather preferred dismissal of the Claimant, based on the investigations carried out by a mere corporal in the Police instead of a Senior Police Officer who should have been higher in rank than the Claimant.

 

  1. p)The 1st defendant in Exhibit CW 5 claimed they arrived at the decision to dismiss the Claimant based on the outcome of their 15th plenary meeting without inviting the Claimant to appear before them or put up a defence in writing.

 

  1. q)A Federal statutory body, like the Police Force, must carry out its activities in line with its governing laws; rules, regulation, discipline and the termination of employment must be strictly complied with, being one with statutory flavor.

It is therefore based on the foregoing that the Claimant finally submitted on the issue that the entire procedure leading to his dismissal was nothing more than a charade and a nullity, the Defendants having acted ultra vires their powers, urging the court to hold that the defendants did not comply with the rules governing statutory employment.

 

Issue 3:         Whether the Claimant is entitled to the reliefs sought.

On this issue, the Claimant submitted that he has led credible evidence to prove that his employment was terminated in grave violation of the Police Act and Public Service Rules and is therefore entitled to the reliefs sought. The Claimant referred the court to the case of Oloruntoba-Oju v. Abdul­raheem (2009) 6 S.C.N.J. 39, where the Supreme court outlined the essential facts to be pleaded and proved by an employee in an action for wrongful dismissal as follows:

“It is trite law that the onus is on the plaintiffs/appellants to prove that the termination of their appointments is unlawful and to discharge this onus, they must prove that:

  1. That they are employees of the Respondent,
  2. Place before the court the terms of the contract, the terms and conditions of their employment,
  3. Who can appoint and remove them,
  4. In what circumstances the appointments can determined by the employer and breach of the terms.”

The Claimant referred to Statement of facts and Statement on Oath filed in this suit as well as the exhibits tendered and submitted that he has proved the requisite essential facts to ground wrongful dismissal in the instant case in line with the above authority. On the issue of condition of service, the Claimant urged the court to take judicial notice of the Police Act, 2004 and the Public Service Rules as the law that govern the condition of service of the Claimant who was statutorily employed. The Claimant also submitted that evidence was led to prove that he was an employee of the Defendants with the Force number AP. No. 86066 as in exhibit CW 5.

It is the submission of the Claimant that having established that his dismissal was in violation of the Police Act, 2004, section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Public Service Rules, the Claimant has also established that he was dismissed without being given a fair hearing. And on the authority of Federal Medical Centre, Ado Ekiti & Ors v.  Kolawale (2015) 54 N.L.L.R paras H-O, once there is violation of laid down procedure for the termination of an appointment of the Claimant, as in the instant case, there is also a violation of the rules of natural justice.

On the effect of lack of fair hearing on proceedings, the Claimant relied on the case of Audu v. FRN (2013) 1 S.C.N.J. 124, where Supreme Court held:

 

“The effect of denial of fair hearing is trite in law. In other words once there is breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court, becomes a nullity.”

 

The Claimant also submitted that miscarriage of justice is inherent in denial of fair hearing citing the case of Mpama v. First Bank (2013) 1 S.C.N.J. 93 in which the Supreme Court held:

“The appellant who established a denial of his right to a fair hearing under the constitution is not required to prove that he suffered a miscarriage of justice. A miscarriage of justice is inherent in a denial of a right to a fair hearing”

To the Claimant, since he has satisfied all that the law requires him and particularly as the Defendants have not in any way challenged any of these facts, the court should ascribe probative value to the evidence calling in support the case of FCDA & Ors v. Nzelu & Anor (2014) 47 N.L.C.R. (Pt. 151) 1 at 23 para A-C. 1 at 23 paras A-C.

Finally, the Claimant strongly submitted having proved his case, he is entitled to the reliefs sought as in the case of CBN v. Igwillo (2007) 30 NSCQR 669 at 694 and P.H.C.N v. Offoelo (Supra) at pp. 222-223 paras G-D, where it was held:

“Where it is found that employee’s employment has Statutory Flavour and same has been wrongfully terminated by the employer, the nature and unavoidable inference is that employee’s employment subsists and as such entitled to reinstatement.”

 

Decision of the Court

I have carefully gone through the processes, the arguments and most of the authorities thereof and wish to adopt issues 1 and 2 as submitted by the Claimant in the determination of this case, to wit:

 

  1. Whether by the nature of contract, the Claimant’s employment is governed by statute.

 

  1. Whether the Claimant’s employment was terminated in accordance with the Police Act and Public Service Rules being the enabling law that governs the conditions of service of the Claimant.

The determination of issue 2 one way or the other will automatically determine whether the Claimant is entitled to the reliefs sought.

 

Issue 1:         Whether by the nature of contract, the Claimant’s employment is governed by statute.

 

In other words, the question is whether the employment of the Claimant in this suit is one with statutory flavour. The Claimant submitted that since the Nigeria Police Force is a body established by section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Police Act and Regulations Cap. P19, Laws of the Federation, 2004 which regulate the conditions of service of the Police Force, his employment is governed by statute. The Regulations of the Police Act, though subsidiary legislation, have the character and has acquired the force a statute, the Police Act itself. It is therefore my finding and holding that the employment of the Claimant has statutory flavour, meeting the requirements of the case law authorities cited by the Claimant. See the case of Sergeant Nte Ibada v. The Inspector-General of Police, SUIT NO. NICN/LA/91/2013, delivered on 3rd March, 2017, per B. B. Kayip, J.

 

Issue 2:         Whether the Claimant’s employment was terminated in accordance with the Police Act and Public Service Rules being the enabling law that governs the conditions of service of the Claimant.

 

In the determination of the issue at hand, I will be guided at all times by the dictates of the Supreme Court in a long line of cases such as Kato v. CBN (1999) 6 NWLR (Pt. 607) 390, Ibama v. S.P.D.C. (Nigeria) Limited (2005) 17 NWLR (Pt. 954) 364 and Ziideel v. R.S.C.S.C (2007) 3 NWLR (Pt. 1022) 554. The underlining principles in all these cases and many more, is to the effect that an employee seeking the declaration that the dismissal/termination of his appointment is a nullity must plead and prove the following material facts:

  1. a)The nature of the employment.
  2. b)The condition of service.
  3. c)The circumstances under which the appointment can be terminated.

 

I intend to analyse the pleadings and evidence in this case in the light of material facts (a-c) above and will only refer to the argument of the Claimant where necessary.

 

On the nature of employment, it is not in dispute that the relationship between the parties in this case is one with statutory flavour, the foundation of which are the Police Regulation Act and the Public Service Rules. So, the basic principles governing this sort of relationship is that an employment which is protected by statute must be determined in the way and manner prescribed by the relevant statute and any other manner inconsistent with the statute will be null and void and of no effect. See Ibama v. S.P.D.C. (Nigeria) Limited (2005) 17 NWLR (Pt. 954) 364 SC and UBN Limited v. Ogboh (1995) 2 NWLR (Pt. 380) 647 SC.

 

On the issue of condition of service, it is trite law that a servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: see Amodu v. Amode (1990) 5 N.W.L.R. (pt. 150) 356 at 370;   Katto v. Central Bank of Nigeria (1999) 6 N.W.L.R. (pt. 607) 390 at 405; Okomu Oil Palm co ltd v. Isehienrhien (supra) at 673-674, Idoniboye-Oba v.  NNPC (2003) 1 S.C.N.J 108-109 and Ziideeh vs. Rivers State Civil Service Commission (2007) All FWLR (Pt. 354) 243 at 258. In other words, the employee has the onus of placing before the court the condition of service before proceeding to prove the manner the said terms were breached by the employer.

 

In the instant case, the Claimant has scaled the first hurdle by relying on the Police Act and Regulations Cap. P19, Laws of the Federation, 2004 and the Public Service Rules. It is however in the scaling the second hurdle i.e proving how the terms of contract of employment are breached that the Claimant is found wanting. And the reasons are not far-fetched.

 

First, the Claimant did not indicate the pertinent provisions under which he can be dismissed from service not to talk of how the provisions or terms were breached. I have read the processes in this case a couple of times but cannot find the procedure for the determination of employment under Police Act and Regulations Cap. P19 or the Public Service Rules. Apart from a mention of some of the provisions of the Police Act here and there, there is no conscience attempt to bring in the applicable provisions. The only resemblance of a procedure was Claimant’s contention that by law establishing the Nigeria Police Force, the Defendants should have preferred a charge against him formally, call him to make a defence writing and to give a notice of the findings against him before dismissal for possible redress in court. Even then, the Claimant did not state under what law or section of the law this procedure is to be found. After all, Courts are adjudicators, not investigators; as such counsel should not expect the Court to embark on a voyage of discovery to find the relevant law or section to substantiate the Claimant’s claim.

 

Second, a casual look at the Claimant’s dismissal letter (exhibit CW 1) reveals that the 1st Defendant stated that the powers to dismiss the Claimant were conferred by the Third Schedule, paragraph 30 of the 1999 Constitution as amended and Police Service Commission (Establishment) Act, 2001 and that the said dismissal was in accordance Public Service Rule (PSR) 030302. Since this exhibit is the pivot upon which the Claimant’s case is predicated, it is expected that the Claimant will make a minced meat of it. But nothing of such happened giving credence to the fact that the said dismissal was in accordance with the powers vested in the 1st Defendant.

 

Third, the Claimant’s submissions on being investigated by a junior officer, the illegal search conducted without his signature or that of a Magistrate, the offence of being a member of a cult and insubordination for taking a picture with the rank higher than his own etc – are all in contravention of various provisions of the Police Act which he submitted in not applicable to an officer of his cadre or rank. This contradiction in itself has taken the sting off the Claimant’s submissions.

 

Four, the submission by the Claimant that his unchallenged and uncontroverted evidence ought to be accepted by the court as establishing the facts therein without more is untenable in law. It is true that the Defendants did not enter any formal appearance, file any defence and did not have any legal representation throughout the hearing of this case in spite of been put on notice at every turn. It is also equally true that under this circumstance, the Defendants are presumed to have admitted the case made against them and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the Claimant. See the case of Ifeta v. Shell Petroleum Development Corporation of Nigeria Ltd (2006) Vol.6, MJSC 123. However, the absence of evidence by the defendant does not absolve the Claimant of the burden of proof placed on him by Section 131 (1) & (2) of the Evidence Act, 2011. See Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt 1057) 218. Lack of evidence or defence per se does not guarantee automatic victory to the claimant since evidence does not become credible merely because it is unchallenged. See Akalonu v. Omokaro (2003) 8 NWLR (Pt 821) 190. So it is still incumbent on the Claimant to adduce credible evidence to prove his case, albeit, on minimum proof. The doctrine of minimum itself, is captured eloquently by A. M. Mukhtar, J.S.C. (as she then was) in the case of Newbreed v. Erhomosele (2006) 2 S.C.N.J. 215:

 

“The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, minimum evidence adduced by the other side would suffice to prove its case. See Buraimoh v. Bamgbose (1989) 3 N.W.L.R. (pt. 109) page 352, and Nwubuoku v. Ottih (1961) 2 S.C. N.L.R. page 232.”

 

Five, all the submissions of the Claimant bordering on fair hearing are not well made out. While all the case law authorities cited by the Claimant are apt, it is the application on them to facts of this case that is way off the mark. A casual look at the proceedings will reveal that the basic requirements of fair hearing were complied with. He was given a query (Exhibit CW 1) in which his alleged acts of misconduct were made known to him. He gave an elaborate reply in Exhibit CW 2 and appeared before the Force Disciplinary Committee Proceeding of 4th March, 2015 (Exhibit CW 7). It is enough that he was given an opportunity to make representation. See the cases of Ziideeh v. RSCSC (2007) 3 NWLR (Pt. 1022) 554 SC; A. R. Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 508 CA at 527 and Imonikhe v. Unity Bank (2011) 12 NWLR (Pt. 1262) 624 SC to mention but a few.

 

Six, the contention that the allegation against the Claimant for being a member of a secret cult, being criminal in nature, is not one to be handled by the Defendants until tried by a court of law is also untenable. This is because the Claimant did not show that the dismissal by the 1st Defendant under Public Service Rule (PSR) 030302 was not appropriate. See the case of Maikyo v. Itodo (2007) 3 S.C.N.J. 156-157, per S. A. Akintan, J.S.C. In any case, the current position of the law is amplified by S. U. Onu, J.S.C., in Arinze v. First Bank (2004) 5 S.C.N.J. 190, (2004) 12 NWLR (Pt. 888) 663, where the Supreme Court held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor required under section 36 (1) of the 1999 Constitution that an employee must first be tried in a court of law. See also Court of Appeal case of AG, Kwara State v. Ojulari (2007) 1 NWLR (Pt. 1016) 551, where it was held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case.

 

For all the foregoing, I have no hesitation in finding and holding that, even under the doctrine and standard of minimum proof, the wrongful dismissal of the Claimant remained unproven. The case of the Claimant is hereby dismissed for lacking in merit with no order as to cost. With the dismissal of the main claim, the reliefs a) and b) on being still in employment of the Defendants and reinstatement cannot stand and therefore equally dismissed.

Judgment entered accordingly.

 

 

………………………………………

HON. JUSTICE M. A. NAMTARI

 

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