Inspector Joseph Etuk -VS- Csp. Peter Yaro Thliza(delegated officer

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

DATE: 7^TH FEBRUARY, 2019 SUIT NO: NICN/UY/29/2016

BETWEEN:

INSPECTOR JOSEPH ETUK ..…………………………………CLAIMANT

AND

CSP. PETER YARO THLIZA

(DELEGATED OFFICER) NIGERIA POLICE,

IKOT AKPAN ABIA, UYO

COMMISSIONER OF POLICE,

AKWA IBOM STATE DEFENDANTS

ASSISTANT INSPECTOR GENERAL OF POLICE

(AIG), ZONE 6, CALABAR

INSPECTOR GENERAL OF POLICE

FORCE HEADQUARTERS, ABUJA

REPRESENTATION:

Aniedi A. AkpanAbottifor the Claimant.

No Representation for the Defendants.

JUDGMENT

The Claimant was a Police Prosecutor who was enlisted into the Nigerian Police on 1^st October, 1991 and rose to the rank of Inspector with AP No. 157450. The Claimant who was serving at the Divisional Headquarters of MkpatEnin Local Government of Akwa Ibom State was dismissed from service vide a wireless message on the 25^th August, 2016. The Claimant commenced this action on21^st October, 2016 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:

a)An order reinstating the claimant into the Nigeria Police with his rank as an Inspector in the Nigerian Police Force and entitled to all rights and privileges as provided under the Police Act and other laws and regulations made there under.

b)An order setting aside the conviction of the claimant and orders made by the orderly room trial conducted by the Delegated Officer (1^stDefendant) on 23^rd day of August, 2016.

c)An order setting aside the dismissal order and prosecution of the claimant made by the Defendants through the Police Wireless Message of 25^th day of August, 2016.

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. The only semblance of legal representation was when Japheth O. Japheth esq announced appearance for the 1^st, 2^nd and 4^th Defendant at the proceedings of 24^th January, 2018. It was against this background that the Claimant applied and was granted an order setting down the matter for prove pursuant to Order 35, Rule 6 (2) of the rules of this court.

At the trial, the Claimant testified for himself as CW and tendered four (4) documents as Exhibits as follows:

1.	Exhibit CW 1	–	Copy of undated Orderly Room Proceedings.
2.	Exhibit CW 2	–	Copy of the Letter of Appeal against Orderly Room Trial and Punishment dated 25^th August, 2016.
3.	Exhibit CW 3	–	Copy of undated Commissioner of Police Comment.
4.	Exhibit CW 4	–	Copy of Police Wireless Message dated 25^th August, 2016.

At the close of trial, the claimant filed his final written address on 23^rdJanuary, 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:

That the Claimant was a serving member of the Nigeria Police and was enlisted into the Nigerian Police on 1^st day of October, 1991 and rose to the rank of an Inspector with AP. No. 157450 and was posted to the Divisional Police Headquarters,MkpatEnin Local Government Area of Akwa Ibom State as a prosecutor.

That the Claimant had no known previous disciplinary case before now in the Nigerian Police.

That the Claimant was among seven (7) police officers assigned to raid one of the “black spots” in Ekpuk Village within the command of MkpatEnin Local Government Area on the 14^thday of July, 2016.

That it was only the Claimant and the driver out of the seven (7) police officers that were not armed with gun for the raid of 14^thday of July, 2016.

That as a result of the raid, ten (10) suspects, including one Mary Nse Udo, a female were arrested and the police patrol van was used to conveyed the suspects and seven (7) police officers that conducted the raid back to the Divisional police headquarters without stopping at any place on the road as there was resistance from the villagers.

That at the police station, the suspects were detained after they made statements under caution.

That the Claimant took statement of the female suspect, Mary Nse Udo, who was later assigned to Inspector Francis Ojelede as Investigating Police Officer (IPO) for discreet investigation.

That on 18th July 2016 an Identification Parade was conducted at the Police Station in which the Claimant saw the said Mary Nse Udo with some police officers who came from State Command Headquarters, IkotAkpanAbia, Uyo with an instruction from the 2^nd Defendant (Commissioner of Police) that the Claimant should be brought to the Police Headquarters at IkotAkpanAbia, Uyo.

That on getting to the police headquarters, the said Mary Nse Udo accused the Claimant of raping her at gun point on the 14^thJuly, 2016 at about 2330hrs at Ekpuk Village when she was on her way to church, an offence he never committed.

That at the said Police Headquarters, the Claimant also met one Dr. Stephen Ime, a self-styled human rights activist from Nyadiong Village in MkpatEnin who claims and parades himself as the close friend of a very high ranking police officer in Akwa Ibom State Police Command.

That the said Dr. Stephen Imeclaimed to be the uncle of the alleged rape victim (Mary Nse Udo) and that he paid N10,000 to the police before the victim was released on bail. The Claimant denied that neither of the two allegations took place or happened.

That the said Dr. Stephen Ime, also told the Claimant to his face at the office of the 2^nd Defendant on 18^th July, 2016, that since the claimant was bold enough to prosecute his cousin, one ImeAkpanEshiett for the offence of assault occasioning harm and malicious damage, he would show the Claimant the way out of the Police Force using hisconnection with superior police officers.

That on 5^th August, 2016, an orderly room trial was constituted at State Criminal Investigation and Intelligence Department IkotAkponAbia, Uyo by the 2^nd Defendant and one C.S.P Kabir Abdu was assigned to try the Claimant and two (2) other defaulters.

That the Claimant was charged with discreditable conduct, indecent and sexual assault, on the 5^th August, 2016, to which he pleaded not guilty and the trial was adjourned to the 9^th August, 2016 due to lack of prosecution witnesses.

That on 9^th August, 2016, the case was adjourned to 31^st August, 2016 for lack of prosecution witnesses.

That the orderly trial resumed on 22^nd August, 2016 instead of 31^st August, 2016, before another Delegated Officer, CSP Peter YaroThliza (the 1^st Defendant).

That the 1^st Defendant went ahead to conduct the hearing of the matter without taking new plea from the Claimant and the other two officers in breach of constitutional right to fair hearing of the Claimant.

That during the trial the alleged victim of rape, Mary Nse Udo did not testify rather one Insp. AnyantaEkekwe who happened to be the Investigating Police Officer (IPO) from State Investigation Bereaugave evidence against the claimant and was not given the opportunity of cross-examining the victim in breach of his fundamental rights to fair hearing.

That a Medical Report procured by the said Dr. Stephen Imewhich was not tendered but the content of which was used as evidence by P.W. 5 (Insp. AyantaEkekwe) was accepted as evidence to convict the Claimant. The alleged doctor (maker) was never called as witness to be cross-examined.

That the evidence of PW1 who was the team leader, evidence of PW. 2, the driver of the vehicle on the day the incidence took place, evidence of PW. 3 who was one of those that took part in the raid did not indicate anything like rape or sexual assault tookplace as they did not stop anywhere after the raid.

That despite the quality of the prosecution evidence and the Claimant’s defence, the 1^st Defendant (Delegated Officer) recommended the dismissal of the claimant from the force and to be charged to court for offence of rape.

That immediately after the conviction on 23^rd August, 2016, the Claimant lodged an appeal against this judgment on 25^th August, 2016 at the office of the 3^rd Defendant (A.I.G, Zone 6,Calabar).

That the 2^nd Defendant referral comment to the 3^rd Defendant concerning the Claimant and the other police defaulters had stated thus:

“The defaulters conduct not only amounted to gross infringement on the fundamental human rights of the victims of assault and indecent sexual assault, the resultant negative reports and comments in the print, electronic and social media in the internet, has caused incalculable damage to the image of the Nigeria Police Force in general and Akwa Ibom State Command in particular. Though the finding of guilty against the defaulters on the 1^st and 2^nd count charges based on unreliable and contradictory evidence of the victims is not overwhelming enough, the fact that only a court’s decision can exonerate them and the force from the verdict of the court of public opinion, I recommend, that the 1^st defaulter involved on the sexual assault be dismissed from the force and charged to court.”

That without hearing and determining the appeal of the Claimant against his conviction, the 3^rd Defendant affirmed the recommendation of the 2^nd Defendant through a Police Wireless Message on same 25^th August, 2016 dismissing the Claimant from the Nigeria Police Force and ordering his prosecution in the court for the offence rape.

That under the Police Act, in the 2^nd Schedule, it is only the 4^thDefendant that can dismiss the claimant who is an Inspector and not the 1^st – 3^rd Defendants in a properly conducted orderly room trial and not as contrived herein.

Claimant’s Submission:

The Claimant formulated two (2) issues for determination, to wit:

(i) In the circumstance of the case, whether the dismissal of the Claimant was wrongful.

(ii) Whether the Claimant has successfully proved his case on the balance of probabilities to warrant being reinstated by this Honourable Court.

Issue 1: In the circumstance of the case, whether the dismissal of the Claimant was wrongful.

The Claimant answers this question in the affirmative and posited that the orderly room trial which recommended the punishment to be meted out on the Claimant was fraught with inconsistencies and irregularities. The Claimant alleged that he was not afforded fair hearing which is a fundamental rights guaranteed to every citizen and a backbone of any judicial proceedings or tribunalwithout which there will be no integrity in the system.

To the Claimant, the gamut of his case is not whether he committed the alleged offence or not but rather the procedure and manner of his dismissal from the police force in which the 1^st – 3^rd Defendants played major roles.

It is the submission of the Claimant that every person accused of an offence has a right to call witnesses in his defence and also to cross examine the prosecution witnesses and this opportunity was not afforded him throughout the trial which led to his dismissal.The Claimant attacked the orderly room proceedings on Sevenfronts: First, the complainant, Mary Nse Udo never appeared during the trial but her written statement and a purported medical report was used to seal his fate. Second, the panel did not have the opportunity of observing the demeanor of the complainant to determine if she was telling the truth. Third, the Claimant could not cross examine the complainant to discredit her. Four, the witnesses were not independent witnesses who saw the alleged offence and the trial was at best, based on hearsay evidence as the prosecution witnesses especially the PW 5, PW 6 and PW7 just narrated what they were told by the complainant. Five, the conduct of the trial which led to the dismissal of the Claimant was nothing short of a witch hunt as even when it was clear that the statement of the complainant was fabricated, the claimant was still dismissed from service. Six, the defendant did not take into consideration that the evidence of complainant who refused to appear before the trial body was uncorroborated being a rape case. Seven, despite admitting that the evidence of the complainant does not “hold water” in paragraph 5 of the record of proceedings, the orderly room trial still found the Claimant guilty of an offence he did not commit.

Thereafter, the Claimant vehemently submitted that the fundamental principles of law was made to take the backseat whilst the 1^st – 3^rd Defendants created and enforced rules alien to natural justice and good conscience in order to dismiss the Claimant from active duty. On the effect of lack of fair hearing exhibited in this case, the Claimant relied on the case of Atano v.A.G Bendel State (1988) 2NWLR (Part 75) 132, where it was held:

“The principle of fair hearing is fundamental to all court procedure and proceedings, and like jurisdiction, the absence of it vitiates the proceedings no matter how well conducted fair hearing means fair hearing to the Defendant as much as it is fair hearing to the Plaintiff. The court or tribunal must hold a balance between the contesting parties when applying the principles of fair hearing.”

Not only that, the Claimant also contended that the 3^rd Defendant lacks the authority and mandate to dismiss the Claimant, an Inspector, from the police and clearly acted ultra vires his powers. The Claimant went on to submit that it is only the 4^thDefendant who is empowered to dismiss a police officer of the rank of inspector under the 2^nd Schedule of the Police Act and this is enough to render the dismissal of the Claimant wrongful not to talk of the illegality that took place in the orderly room trial.

Furthermore, the Claimant stated that he was dismissed even when the appeal against his conviction had not been heard and determined by the 3^rd Defendant. In fact, the 3^rd Defendant was quick to dispatch a police wireless message on the 25^thof August, 2016 affirming the recommendation made by the 2^nd Defendant.

In the light of the foregoing, the Claimant urged this Court to hold that the dismissal of the Claimant was wrongful and to grant the reliefs thereof.

ISSUE NO.2: Whether the Claimant has successfully proved his case on the balance of probabilities to warrant being reinstated by this Honourable Court.

On this, the Claimant submitted that it is trite that the onus of proving a case usually lies on the Claimant asserting the existence or non-existence of certain fact, and on the strength of his case and upon discharging the burden, the pendulum swings over to Defendant to dispel the contention of the Claimant.

It is however the further submission of the Claimant that it is not possible to hold such balance of probabilities in the instant case as the Defendant deliberately refused to put any defence before this Court.

The Claimant listed the unchallenged evidence put forward in this case as the testimony of the Claimant in court and the documents tendered and submitted that the court is bound to accept the uncontroverted and unchallenged evidence particularly as the said evidence were not notoriously false relying on the case of Obulor v. Obor (2001) FWLR (Pt.47) 1004.He also cited the case of Muomah v. Enterprise Bank Ltd (2015) LPELR-24832(CA) on the effect of uncontroverted evidence:

“The law in my view is settled that where evidence given by a party to any proceedings is not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged before it”

The Claimant also strongly submitted that unchallenged and uncontroverted evidence ought to be accepted by the court as establishing the facts therein and it will be unfair to subject the Claimant to a higher standard of prove especially due to the negligence and laxity of the Defendant in not putting any defence.

Finally the Claimant urged the court to grant him all the reliefs sought.

DECISION OF THE COURT

I have carefully gone through the processes, the arguments and most of the authorities thereof and the demeanour of the Claimant in this case and in my considered view the issue for determination is: whether given the circumstance of the case the dismissal of the Claimant was wrongful.

Whether the answer to the above question is in the affirmative or otherwise will however depend on the evidence put forward by the Claimant. In other words, the issue 2 formulated by the Claimant will be automatically answered while considering whether the dismissal of the Claimant is wrongful. Suffice it to say that 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 any given time. 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 ofevidencebythedefendantdoesnotabsolvetheclaimantoftheburdenofproofplacedonhimby 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 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.”

Now to the crux of this matter: Is the dismissal of the Claimant in this case wrongful. Generally, to determine this two issues must be up for consideration, that are, whether the dismissal, termination or retirement is wrongful and the damages recoverable thereof. And in doing this the employee must bring to the fore the conditions of his employment or statute and demonstrate to the court how the statute, conditions or terms was breached. This is the Supreme Court case of Ekeagwu v. The Nigerian Army (2010) 16 NWLR 419, (2010) LPELR-1076 (SC),per WalterOnnoghen, JSC (as he then was now CJN). Similarly, even in the matter of discipline, the procedure laid down by such statute must be fully complied with. This is the case of Oloruntoba-Oju v. Abdul-raheem (2009) 6 S.C.N.J. 44-45, per O. O. Adekeye, J.S.C.

The grudge of the Claimant against his dismissal from the Police are in the main two (2), the orderly room trial which recommended his dismissal and the lack of authority of the 3^rd Defendant to dismiss him from the Police.

The submissions of the Claimant against the orderly room trial calls for a critical review of the proceedings itself. A casual look at the proceedings will reveal that the basic requirements of fair hearing were complied with. He was aware of the case to be met, given the opportunity to cross-examine the witnesses available and given the chance to put across his defence. But a closer look at the proceedings will however show that the misgivings by the Claimant are well-founded. First, the failure to call the victim of thealleged sexual assault left a gaping lacuna in the proceedings. The confrontation between the victim and the Claimant would have assisted the trial in no small measure in the truth searching process. It would have also prevented the evidence of the other witnesses from being rendered hearsay. See the case of Ezeanah v. Atta (2004) 2 S.C.N.J. 216. The said victim of the sexual assault is too vital a witness to be left out in this case. The importance of a vital witness was stressed by I. T. Muhammad, J.S.C. in the case of The State v.Azeez (2008) 4 S.C.N.J 347-348 quoting with approval, Adio, J.S.C. (of blessed memory), in the case of State v.Nnolim (1994) 5 N.W.L.R. (pt. 345) 394 at 406 C-D, that:

“A vital witness is a witness whose evidence may determine a case one way or another. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.”

Secondly, there is the issue of bias or witch hunt. It is on record that immediately after the completion of hearing and before the verdict, the Delegated Officer invited the Claimant to enter a plea of alloctus. This irregularity is a clear indication that the verdict is already premediated or predetermined. If this is not a witch hunt or bias I don’t know what it is. In the case of Azuokwu v. Nwokanma (2005) 5 S.C.N.J. 202, U. A. Kalgo, J.S.C. defined bias in relation to a court or tribunal as:

“….an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules….”

Thirdly and the most damaging of all is that the decision of the orderly room trial cannot be supported by the evidence before it. In the instant case, the Delegated Officer in his findings, at paragraph 5, held that the statement of the alleged victim “does not hold water because there could be no opportunity for men on stop and search with nine suspects on board their vehicle and could perform that duty. As such any reasonable mind will agree to the fact that Mary Nse Udo was arrested during the raid along with nine others who were detained at the same time as signified in the attached document which is the Station’s Prisoners Lock up register.” Yet this finding did not stop the Delegated Officer from recommending the dismissal of the Claimant from the Police and being charge to court. This is in clear breach of Regulation 384 (27) of the Police Act which provided as follows:

“After the taking of evidence is concluded the Delegated Officer shall, if he considers the charge on the evidence adduced to be not proven, record a finding of not guilty and shall dismiss the charge, if he considers the charge proven he shall record finding of guilty.”

On the authority of the cases of Menakaya v. Menakaya (2001) 9 S.C.N.J. 22 andFubara v. Minima (2003) 5 S.C.N.J. 180, a decision not supported by evidence is void.

I am therefore in total agreement with the Claimant that the orderly room proceedings is not only fraught with irregularities but against the grain of fair hearing which is a fundamental right of every citizen. I have therefore no hesitation in holding that having regard to the facts and circumstances of this case, the orderly room trial was not fair and therefore null and void. In coming to this conclusion, I am not unmindful that its proceedings cannot be equated with the regular courts, where strict procedures are required.But I am embolden by the current trend to apply the principles of fair hearing or natural justice to purely administrative bodies where their decisions affect the rights and obligation of people. See Ndukwe v. LPDC (2007) 2 S.C.N.J.18 and Agbiti v. Nigeria Navy (2011) 2 S.C.N.J. 30, where it was held per O. O. Adekeye, J.S.C.:

“The right to fair hearing is a fundamental constitutional right guaranteed by Section 36 (1) of the 1999 Constitution; any breach of it particularly in trials renders same null and void. The court martial which is military court recognized by the Constitution is also always bound by the rules of evidence and manifestation of fair trial. Where such is breached, the overall trial becomes a nullity.”

TheClaimant also stated that he was dismissed even when the appeal against his conviction had not been heard and determined. Apart from referring the court to letter of appeal, the Claimant did not justify his right of appeal or prove how or in what way same was breached. Similarly, his claim that the 3^rd Defendant lacks the authority and mandate to dismiss him from the Police is not made out. Relying on “the Police Act and the 2^nd Schedule” istoo wide an assertion to prove such an important point. After all, Courts are adjudicators, not investigators; as such counsel should not expect the Court to embark on a voyage of discovery in finding the relevant law or section to substantiate the Claimant’s claim. In other words, even under the doctrine of minimum proof, the two issues remained unproven and I so hold.

Since the orderly room trial which gave rise to the dismissal is null and void, the dismissal of the Claimant cannot stand. The purported dismissal of the Claimant from the Police Force is hereby declared wrongful. The legal implication of thispronouncement is that the Claimant, whose employment hasstatutory backing, was always and still a Police Officer and entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as when due and payable. See the casesof Iderima v. Rivers State (2005) 7 S.C.N.J. 511 andEkeagwu v. Nig. Army (2010) 42 (pt. 2) N.S.C.Q.R. 1248

Accordingly, the Claimant’s case succeeds in the following terms:

a)An order is hereby granted setting aside the conviction of the claimant and orders made by the orderly room trial conducted by the Delegated Officer (1^stDefendant) on 23^rd day of August, 2016.

b)An order is hereby granted setting aside the dismissal order and prosecution of the claimant made by the Defendants through the Police Wireless Message of 25^th day of August, 2016.

c)An order is hereby granted reinstating the claimant into the Nigeria Police with his rank as an Inspector in the Nigerian Police Force and entitled to all rights and privileges as provided under the Police Act and other laws and regulations made there under.

Judgment entered accordingly.

………………………………………

HON. JUSTICE M. A. NAMTARI