Mathew Timmy Ombeh -VS- Bayelsa State Judicial Service

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: WEDNESDAY DECEMBER 18, 2019 SUIT NO: NICN/YEN/427/2016

BETWEEN:

MATTHEW TIMMY OMBEH ESQ …………… CLAIMANT

AND

BAYELSA STATE JUDICIAL SERVICE

COMMISSION

KATE ABIRI DEFENDANTS

(Chief Judge of Bayelsa State)

REPRESENTATION

Mr. J.T. Abeokuta Esq with C.F. Famateigha Esq for the Claimant.

M.A. Idaiyi Esq for the Defendants.

JUDGMENT

INTRODUCTION AND CLAIMS

The matter culminating into this judgment was commenced on the 14^th of November, 2016 by way of a Writ of Summons, which was taken out by J.T. Abeokuta Esq, of Counsel on behalf of the Claimant, praying this Court for the following reliefs:

A DECLARATION that the dismissal of the Claimant from the service of the Bayelsa State Judiciary without giving him the opportunity to defend himself amounts to a denial of his constitutional right of fair hearing and a breach of the rules of natural justice and is therefore ultra vires illegal, unconstitutional, null, void and of no effect whatsoever.

AN ORDER of this Honourable Court setting aside the proceedings and the decision of the 1^st Defendant (Bayelsa State Judicial Service Commission) dismissing the Claimant from the service of the Bayelsa State Judiciary which took effect from the 15^th day of August, 2016.

AN ORDER of this Honourable Court directing and/or compelling the Defendants to re-instate the Claimant back to his position as Chief Magistrate Grade 1 in the Bayelsa State Judiciary with all entitlements, rights and privileges attached thereto and without any loss of promotion with effect from the date of the purported dismissal.

AN ORDER of this Honourable Court to restrain the Defendants, their agents, servants, privies and whosoever person that is connected to them in whatsoever form or manner from taking over any Government property presently in the possession or custody of the Claimant.

AND FOR SUCH FURTHER or other order(s) as this Honourable Court may deem fit and proper to make in the circumstances of this suit.

The Defendants, in response, and through their Counsel Mr. M.A. Idaiye, entered their Memorandum of Appearance and filed a Statement of Defence, which was subsequently amended and dated the 3^rd of May, 2018. The Claimant further filed a Reply to the Defendants’ Statement of Defence, which was consequentially amended and filed on the 6^th day of July, 2018; in reaction to the Defendants’ Amended Statement of Defence.

Trial commenced on the 10^th of April, 2018, wherein the Claimant was sworn in as CW1 and he tendered 5 EXHIBITS, which were marked as EXHIBITS CW1 001 – CW1 004. He was cross-examined on his evidence by Counsel for the Defendant.

The Defendants opened its case on 11^th of December, 2018 and subsequently called two (2) witnesses – James B. Lockie and Abraham Uzakah, both of whom testified as DW1 and DW2, respectively. The Witnesses adopted their Witness Statements on Oath on different dates and a total of 18 EXHIBITS were tendered jointed through the Witnesses, marked as EXHIBITS DW 001 – DW 018. They were cross-examined by Counsel for the Claimant after which the Defendants closed their case. Consequently, Parties were ordered to file and serve on themselves their respective Final Written Addresses, which same were filed and adopted.

CLAIMANT’S CASE IN BRIEF

The Claimants’ case is that he is a Chief Magistrate Grade 1 in the service of the Bayelsa State Judiciary. The Claimant was served with a letter on the 15^th of September, 2016, from the Defendant dismissing him from service on the grounds of absence from duty and travelling out of the country without permission. That he wrote a letter of protest in reaction to the said letter of dismissal. That prior to the service of the letter of dismissal on him, he was neither issued a query nor invited to appear before the 1^st Defendant to respond to any allegation against him. According to the Claimant, the actions of the Defendants in dismissing him from the service of the Bayelsa State Judiciary is irregular, unconstitutional, null, void and of no effect whatsoever because he was not queried nor given the opportunity to defend himself. He posits that the Defendants’ action amounts to a denial of his constitutional rights to fair hearing, a breach of the doctrine of natural justice. He concludes by stating that the proceeding of the Defendants to dismiss him is filled with irregularities. The Claimant also joined issues with the Defendants in his Consequentially Amended Reply to the Defendants’ Statement of Defence.

Upon cross examination by the Defendants’ Counsel, the Claimant confirmed that he made an oral application to the 2^nd Defendant before travelling out from his station and that he did not sit from July, 2014 until the date he was allegedly dismissed. He further went on to state that the reason for his travelling was because he was indisposed and not because he was avoiding anybody due to loss of money. He also state that he was posted to the Environmental Court where he felt he did not have the powers to preside and of which he complained to the Chief Registrar. According to CW1, he decided not to take any case until he received a response from the Chief Registrar. CW1 concludes that he never changed his official address thus there was no need to notify the Defendants of any change of address and lastly that he was entitled to query before any dismissal.

THE CASE OF THE DEFENDANTS

The Defendants, in their written testimony averred that the Claimant was no longer a Chief Magistrate as at the time of filing the instant suit, especially as he had long abandoned his office, duties and official quarters in order to hide from or avoid several persons he was indebted to. They averred that many of these business transactions entered into by the Claimant had turned sour and the victims were dragging him before courts and police stations and some of the complaints have gotten to the Hon. Chief Judge of Bayelsa State in form of petitions. That the Claimant last sat in his Court on the 8^th of July, 2014 until he was dismissed on the 15^th of August, 2016. The Defendants stated further that the Claimant not only abandoned his work but also travelled out the country without permission and there was no known reason given by the Claimant for such action. More still, that while he was away, the Claimant was incommunicado thus it became a matter of moral and principle for his employment to be terminated so as not to set a bad precedent as well as to serve as a deterrent. According to the Defendants’ evidence on oath, the fact that the Claimant travelled without leaving any forwarding address or attorney robs or denies him of the opportunity to be heard and as such he cannot complain of denial of fair hearing. The Defendant concludes by stating that the Claimant seriously misconducted himself when he travelled out of Nigeria without leave thereby abandoning his duty to the embarrassment of litigants and counsel.

DW1 and DW2 testified under cross-examination that based on information they gathered, the Claimant travelled outside Nigeria and could not be reached, hence there was no way they could communicate a query or an invitation notice at all to him for the scheduled meeting where the decision to dismiss him was made. According to their evidence, the Claimant was not dismissed based on the petitions and or complaints which were tendered before this Court (Exhibits DW1 001 – 013) but because he was absent from his place of duty for two (2) years and he travelled without permission. DW1 confirmed to this Court that before he resumed duties as the Chief Registrar that there have been several disciplinary committee actions against the Claimant, though he is not aware if any action has been taken against the Claimant based on the said Exhibits. He also confirmed in evidence that the letter of dismissal was served on someone in the Claimant’s house. He does not know the date the Claimant travelled outside the country nor is he aware of the country the Claimant travelled to. He is also not aware when the Claimant returned to Nigeria. DW1 is also not aware if an invitation letter was served on the Claimant by substituted means before his dismissal. These were substantially similar testimony adduced by the DW2.

THE SUBMISSIONS OF THE DEFENDANT

Learned Counsel for the Defendant in his Final Written Address raised four (4) issues for determination to wit:

Whether the Claimant has established that his appointment was not validly terminated under his contract of employment.

Whether the Claimant has abandoned his work

iii. Whether the Claimant who wilfully abandoned his work, duties and office has not thereby repudiated his employment

Whether the Claimant by abandoning his duty post in circumstances that rendered him unreachable by the Defendants has not waived his right to fair hearing in the determination of his employment

Learned Counsel started his argument by submitting that since the crux of the Claimant’s case is on wrongful dismissal of his employment, he must, as a matter of necessity lead and proof the terms and conditions of the contract of service that have been alleged to be breached. He relied on the cases of NITEL v OSHODIN (1999) 8 NWLR (PT.616) PG.528 AT 541 and OLANLEGE v AFRO CONTINENTAL NIG. LTD (1996) 7 NWLR (PT.458) PG.29 AT 44. Counsel argued that the Claimant’s Exhibit CW1 003 made reference to the offer of appointment letter which was however not pleaded by the Claimant. He continues that the Claimant cannot raise or adduce evidence to support what he has failed to plead, and as such the Claimant’s claims are bound to fail.

According to the Learned Counsel in his submission on issue two, he states that the Claimant abandoned his work and the circumstances for such abandonment was that the Claimant travelled outside the country without permission for over two years. Counsel tried to draw the Court’s attention to the several reasons given by the Claimant for his absence from work for the said period, ranging from indisposition to health grounds and waiting for reassignment to another Court after his complaint. Counsel maintains that these contradictory reasons must be rejected by the Court, stating that the Claimant has already admitted that he travelled out of the country. To Counsel’s mind, the oral permission which the Claimant claimed to have obtained from the 2^nd Defendant is a mere act of prevarication especially against the backdrop that the Claimant ought to know that he cannot abandon his duties and office without properly seeking permission.

On issue three, Learned Counsel adopts his arguments in issue two and maintained further that having abandoned his work for two years the Claimant is deemed to have repudiated his contract of employment. Counsel based his argument on the authority of OBO v COMMISSIONER OF EDUCATION, BENDEL STATE (2001) 2 NWLR (PT.698) PG.638.

The contention of Counsel as per his issue 4 is that the Claimant, having abandoned his duty and made communication to him impossible, cannot complain of lack of fair hearing before his dismissal. He maintained also under this issue that the act of the Claimant amounts to an act of serious misconduct, which is not in the interest of the Defendants. Counsel relied on the authorities of JEREMIAH v ZIREGBE and ANTE v UNIVERSITY OF CALABAR (citations provided). This he concludes undermines the confidence which exists between the Claimant and the Defendants, and that the Claimant is therefore not entitled to fair hearing or even a query.

SUBMISSION OF THE CLAIMANT

The Claimants’ Counsel, on his part, raised two issues for this Court to determine. They are:

Whether the 1^st Defendant being a statutory body established by the constitution of the Federal Republic of Nigeria 1999 (as amended) is expected to or bound by law to observe the natural justice principle of fair hearing viz: audi alterem partem rule in its proceedings including the proceedings of 15^th August, 2016, which led to the dismissal of the Claimant.

If issue 1 is answered in the affirmative, whether the Claimant was given fair hearing before he was purportedly dismissed from service by the 1^st Defendant.

Learned Counsel answered the question in his issue one in the affirmative and argued that the Defendants are bound to observe the principle of natural justice especially in its proceedings which led to the purported dismissal of the Claimant. He contends that the Defendants ought to have acted in good faith and fairly listened to the Claimant before taking the decision of dismissing him. That being an administrative body, where an officer is brought before it with an allegation of misconduct or breach of any regulation, there arise the necessity for the adoption of the principles of fair hearing. Counsel cited the case of CROSS RIVER STATE v YOUNG (citation provided); amongst others.

The Claimant’s issue two is in furtherance of the contention contained in his arguments in issue one. He submits that the Defendants did not afford him the opportunity to be heard on his part. He argued further that the principle of fair hearing is fundamental and a constitutional right that must be observed and protected in all courts’ procedures and proceedings. Counsel cited several cases to buttress his position. Continuing on his argument, Learned Counsel for the Claimant submits that the Defendants did not attempt at complying with or even meeting some of the requirements of fair hearing as provided for by the law and failing in others. He maintained that the Claimant was neither invited nor was he issued a query. That no committee was set up to investigate him before he was dismissed. Counsel submits that all these failures mean that the purported dismissal of the Claimant by the Defendants is a nullity.

In response to some of the arguments made by the Defendants in their final written address, the Claimant’s Counsel submits that the right of fair hearing cannot be waived by a Party. He contends that the rule of fair hearing is not a technical one but one of substance that once an appellate court concludes that the party was not given the opportunity of a hearing, the judgment thus entered is bound to be set aside.

According to the Learned Counsel, most of the documents tendered by the Defendants were related to issues regarding the Claimant’s activities in his personal capacity and ought not to be an issue with the Defendants. He asked the Court to disregard the said documents.

On the non-pleading of the terms of contract, the Claimant’s Counsel contends that the relationship between the Parties herein is one coated with statutory flavour and not a master and servant relationship and as such, the relevant statute to comply with is the Public Service Rules, 2009 and the Code of Conduct for Judicial Officers. He reiterates his argument that the Claimant took permission from the 2^nd Defendant before he travelled and that only the 2^nd Defendant in person can debunk that assertion. That it was during the period of his wait for the response of the 2^nd Defendant that he took the permission to travel. He further submits that the Claimants and his family had at all times leading to the trial, lived in the Quarters allocated to him and that was where the Letter of Dismissal was served on him, which he responded to via Exhibit CW1 001, on the same day.

DEFENDANT’S REPLY

Learned Counsel commenced his argument in reply to the Claimants’ final written address by stating that the arguments of the Claimant on his issue one is misconceived. Counsel reiterates his earlier submission that the Claimant made it impossible for the Defendants to be able to reach him when he abandoned his place of work and residence in the Magistrates Quarters and as such the Claimant cannot complain of lack of fair hearing. That all the authorities cited and relied upon by the Claimant are not the same with the instant case and therefore inapplicable.

On the possibility of waiver of fair hearing, Counsel relied on the case of ARIORI v ELEMO (1983) 1 SCNLR 1. Counsel contends that the onus is on the Claimant to plead and prove the conditions of his employment. On the issue of the 2^nd Defendant not testifying in person to debunk the Claimant’s assertion that he obtained oral permission from her, the Defendants’ Learned Counsel posits that the 2^nd Defendant is not bound to testify especially since she was in the meeting where the Claimant’s matter was brought up, hence, some other person who was present at the meeting could testify on the matter.

COURT’S DECISION

Upon careful consideration of the processes filed by Parties and the evidence before this Court, and upon listening to the witnesses who testified on oath, I have chosen to adopt the issues raised by the Parties in their final arguments. Suffice it to say here that issues 2, 3 and 4 raised by the Defendants will be determined together, while the two issues raised by the Claimant will be merged together. Consequently, the issues to be determined are as follows:

Whether the Claimant has established that his appointment was not validly terminated under his contract of employment having abandoned his work, duties and office and making himself unreachable

Whether the Claimant was afforded the right to fair hearing in the determination of his employment or if his actions constitute a waiver of the right to fair hearing.

These issues will be determined jointly.

The law is settled already that the burden of proving wrongful termination or dismissal of a contract of employment rests on the shoulders of the employee who claims such wrongful action of the employer. Failure on the part of the employee to plead and prove the contract of employment is indeed fatal to his case. SULEIMAN v CIVIL SERVICE COMMISSION OF ONDO STATE & ORS (2015) LPELR-41796 (CA); NEPA v ADEYERI (2006) LPELR-5932 (CA).

In MOROHUNFOLA v KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT.145) PG.506; the Court made it clear on how such facts can be pleaded. It is essential that the Claimant pleads in his statement of claim the fact that there was a contract of employment between him and the Defendant. He is to spell out in the statement of claim what the terms of the contract were or the aspect which has been breached. To my mind, it is sufficient enough if the Claimant is able to spell out the facts in a manner that a reasonable man is able to comprehend, without any equivocation that there exists an employment relation between the parties. A cursory look at the particulars of the Claimant’s claim, particularly paragraphs 1, 2 and 9, shows that the Claimant indeed pleaded some terms of his contract of employment.

The position of the law as espoused in MOROHUNFOLA’s case and indeed in the authorities on this head is to prevent the Court from speculating on the existence of a contract of employment and its particulars between the Parties involved.

The Claimant also went on to plead the alleged breach of the terms when he stated that he was served with a letter of dismissal, without any query or invitation to appear before the 1^st Defendant to react to any allegation made against him. The Defendants also joined issues with the Claimant on these fronts, in their Statement of Defence.

From the evidence before this Court, it is not in doubt that the employment relationship between the Parties herein, is one coated with statutory flavour and as such the Claimant holds his employment under the provisions of the Statute establishing and or regulating the Institution he serves. Consequently, any action sought to be taken for or against such employee, the Claimant in this stead, must be in accordance with due process and as prescribed by the said laws governing the employment. The case of IDERIMA v RIVERS STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PT.951), PG 378 is instructive. In effect, strict adherence to the provisions of the laws is ordered.

That Law is the Public Service Rules (‘The Rules’). The Rules stands as the extant law regulating disciplinary actions against employees, as in the instant case.

The Rules provides for different methods by which the misconduct of an employee can be raised and the procedural steps to be followed in disciplining the employee, strict adherence to these methods are mandatory therefore a misstep of any of these procedures render the action null and void ab inito. See the cases of INCORPORATED TRUSTEES OF NIGERIA GOVERNORS FORUM & ANOR v RIOK (NIG.) LTD & ORS (2018) LPELP-44915 (CA); YEMISI v FIRS (2012) LPELR-7964 (CA); UNION BANK OF NIG LTD v CHARLES OGBOH (1995) 2 NWLR (PT.380) PG.647 AT 669. Until the Rule is amended, no other method of discipline or extraneous recommendation should be adopted in the exercise of this power. IDERIMA v RIVERS STATE CIVIL SERVICE COMMISSION (supra).

Learned Counsel for the Defendants has argued that the action of the Claimant which necessitated his dismissal from the service of the Defendants was his absence from his duty post for two (2) years prior to his dismissal, although this assertion was never traversed by the Claimant, who rather insisted that he made a complaint to the 2^nd Defendant through the Chief Registrar and was awaiting a response before he was dismissed, the decision to dismiss the Claimant, without following the statutory procedure as provided for in the Public Service Rules, is a huge misstep.

Since absence from duty amounts to serious misconduct that warrants a dismissal, the Defendants ought to have complied with the Rules which provides for the procedural steps in that regard. The Rules provides to the effect that a query be issued to the officer and a panel constituted to investigate the allegations against the officer. In fact, the Defendants in EXHIBIT DW1 003 claimed to have dismissed the Claimant based on Section 4(e) (Rule 030413) of the Public Service Rules, yet the evidence are clear that they did not adhere to the steps for dismissal of an erring employee.

It is of legal importance to note that dismissal in contemporary Nigerian Jurisprudence refers to the special cases of discipline for repudiation by the employee. It is usually the power exercisable by the employer as a disciplinary action usually attributable to acts of misconduct. It is relevant that the reasons for which an employer abruptly brings a contract of employment to an end must be stated and justificable. See ABOMELI VRS NRC (SUPRA); SAVANNAH BANK NIG. PLC VRS FAKOKUN (2002) 1 NWLR (PT. 747) 544.

Parties are in agreement that the contract of employment of the claimant is one with statutory flavour. It is of legal importance to note that in a contract with statutory flavour, the procedure for employment and discipline including termination and dismissal of an employee are clearly spelt out. The settled position in such employment is that it must be terminated in the way and manner prescribed by the relevant statute or rules. That position follows from a general rule that when a statute or rules directs that a certain procedure be followed before a person can be deprived of a right such a procedure must be strictly followed otherwise the court will declare void any act done not in accordance with the prescribed procedure. See SHITTABEY VRS FCSC (SUPRA); LONGE VRS FIRST BANK NIGERIA PLC (2010) 6 NWLR (PT. 1189) 3.

Furthermore in JIRGBAGH VRS UBA PLC (2000) FWLR (PT. 26) 1790, Chukwumah Eneh, JCA summarized the general position when failure to comply with contractual procedure for determination will constitute a breach in the following:

“ (i) Where the contract itself, though not regulated by any legislation, has made provision for the procedure to be followed when termination is for misconduct. The summary dismissal of the employee in breach of the contractual procedure would render the dismissal wrongful

(ii) Where a statute or a subsidiary legislation provides the procedure to be followed when the dismissal of an employee is on disciplinary grounds, the requirement of the statutes must be complied with when the removal of the employee is for misconduct, otherwise the dismissal would be a nullity”.

By the Public Service Rules, which is a subsidiary legislation, the Defendants has the power to engage, appoint, promote, dismiss and terminate the employment of any of its staff. The rules have constitutional force flowing from the fact that it derives its status from section 153 (1) (d) of the CFRN 1999 (As amended) which same was adopted in Bayelsa State Civil Service pursuant to section 197 (1) (a) of the CFRN 1999. And the persons over whom they apply are invested with legal status which guarantees strict adherence to the statutory provisions.

It is trite that once a subsidiary legislation conforms to the principal laws, which provide the source of their existence, such legislation becomes relevant. See the cases of GOVERNOR OF OYO STATE & ORS VRS FOLAYAN (1995) 8 NWLR (PT. 413) PG 292; OSADEBE VRS A.G BENDEL STATE (1991) 1 NWLR (PT. 169) PG 525. To that effect, I shall rely massively on the provisions of the Public Service Rules. I have taken this time to explain this position in order that the court’s decision herein and its deep reliance on Public Service Rules will be appreciated. It is an elementary principle of law that in a matter for wrongful termination of employment (like in this case) the burden is upon the employee who alleges the wrongful termination to prove how the employer breach the contract of service in determining the employment. See NIGERIAN GAS CO. LIMITED VRS DUDUSOLA (2005) 18 NWLR (PT. 957) 292.

The method of establishing the breach of the contract of service depends largely on the type of employment which is classified into (i) master/servant employment, (2) where a servant holds employment at the pleasure of his master and (3) an employment clothed with statutory flavour. From the examination of the evidence before this court, it is not in contest that the Claimant’s employment with the 1^st and 2^nd Defendants is one which enjoys statutory flavour as it relates to employment in the Civil Service of Bayelsa State.

The law is settled on the principle that where the contract of service is protected by statute and the removal of a person is predicated upon compliance with statutory provisions renders the removal ultra vires and void. See NNADI VRS NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910 (CA); EKPEROKUN VRS UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 34) PG 162.

The claimant has alleged that the Defendants failed to abide by the stipulations enshrined in the Public Service Rules in dismissing him from the service of the 1^st and 2^nd Defendants. The claimant was accused of serious misconduct under PSR 030402 (e), that is absence from duty without leave and absenteeism.

To ignite dismissal proceedings, an employee must be notified in writing of the grounds on which it is proposed to discipline him/her. And the commission shall caused an investigation to be made into the matter and the officer shall be entitled to know the whole case made against him and shall have adequate opportunity of making his/her defence. See PSR 30305.

By PSR 030307, the officer shall be notified in writing on the grounds on which it is proposed to discipline him and the query should be precise. And in serious cases which are likely to result to dismissal, the officer should be given access to any such document(s) or reports used against him/her.

Furthermore, by PSR 030307 (vi) and (vii), it provides that the concerned officer shall be informed that on a specific day, the question of his/her dismissal shall be brought before the Board and he/she shall be required to appear before the Board or Investigative Panel to defend himself/herself and shall be entitled to call witnesses. And that where witnesses are called to give evidence before the Board or panel, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless she/she has previously been supplied with a copy thereof or given access thereto.

From the provisions of the Public Service Rules quoted and explained above, the Claimant ought to be given access to any document or reports used against him. And that he should be entitled to call witness. And where witnesses are called to give evidence before the Panel, the Claimant shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the Claimant unless he has previously been supplied with a copy thereof or given access thereto. The law is settled on the principle that where the provision of a statute is unambiguous, extraneous meanings must not be read into it. See UNIPETROL (NIG) PLC VRS EDO STATE BOARD OF INTERNAL REVENUE (2006) 8 NWLR (PT. 983) PG 624; ABUBAKAR & ORS VRS NASAMU & ORS (2012) LPELR – 7826 (SC).

It is my view that fair hearing in this case does not mean or limited to giving the claimant an opportunity to appear before the investigative panel. It means more than that.as OPUTA JSC (of blessed memory) put it in the case of GARBA & ORS VRS UNIVERSITY OF MAIDUGURI (1986) N.S.C.C. PG 245, that the panel must not hear evidence or receive representations behind the back of the appellants. The claimant was not given the opportunity to confront his accusers or cross examine them. Indeed there is no any fair in this hearing. See also ADENIRAN VRS N.E.P.A. (2001) 47 W.R.N. 145 at 158 – 159.

The procedure adopted by the Defendants in dismissing the Claimant falls short of what was enshrined in PSR 030307 thereby offending the spirit of the provisions of Section 36(1) of the 1999 Constitution (as amended) on fair hearing.

The law is settled that any public body charged with the powers to employ staff must act within the Statute or Regulations creating it and ensure that it mandatorily abides with the provisions of that Statute and or Regulation governing its procedure for discipline or dismissal of its staff as any breach thereof would render the disciplinary measure meted out, null and void. See ADENIYI VRS GOVERNING COUNCIL, YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT. 300) 426.

Although the 1^st Defendant has the powers by virtue of the relevant regulations to discipline and dismiss the Claimant, it failed to adhere to the strict provisions of the Regulations in this circumstances. Therefore I hold that the dismissal of the Claimant is null and void and cannot stand.

Furthermore, it becomes imperative that I look at the reliefs the claimant seeks from this Court. As already pointed out in this judgment, it is not in doubt that the Claimant’s employment is one coated with statutory flavour. It therefore invests the Claimant with a status higher than the ordinary one of master and servant. The status of employment with statutory flavour, in its own rights, guarantees an employee’s right to fair hearing before the termination of his employment. See OLANIYAN VRS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; IMOLOAME VRS WAEC (1992) 9 NWLR (PT. 265) 303.

I am satisfied from the evidence before me that the Claimant has proved his case and is entitled to the reliefs which are available under the law with regards to the wrongful dismissal of an employee whose employment enjoys statutory flavour. The remedy to unlawful termination of employment clothed with statutory flavour is reinstatement. Once a dismissal or termination of such employment is declared unlawful or null and void, there is nothing legally standing in the way of such employee to having his or her job or office back with all the attendant rights, privileges and benefits. In other words, the Claimant is entitled to be restored to his status quo ante. See OLUFEAGBA & ORS VRS ABDUL-RAHEEM & ORS (2009) 18 NWLR (PT. 1173) PG. 384. The rationale behind this conclusion is that if the Claimant had remained in service up till date, he would have earned his salaries, allowances and all other entitlements. He should not lose these benefits if he is wrongly dismissed. This line of reasoning was also captured in the case of OLALEKAN VRS MANAGEMENT BOARD, UNIMAID TEACHING HOSPITAL (2012) LPELR-20099 (CA) where the Court, per OMOLEYE ,J.C.A, held as follows:

“The law is settled that, where an employee’s service is protected by statute and his employment is wrongfully terminated as in the instant case, he would be entitled to re-instatement to his office… This is because the Appellant as stated above is in a permanent and pensionable cadre of the Respondent’s establishment. His office is not at the pleasure of the Respondent. Rather, his appointment is protected by the provisions of the Act.”

The case of OBO v COMMISSIONER OF EDUCATION, BENDEL STATE cited and relied heavily upon by the Defendants’ Counsel is not on the same standing as the instant case. In that case, the employee had extended his study leave without permission, only to return after 8 years to claim the duty post he left. In the instant case, the Claimant led evidence on the fact that he made a complaint to the 2^nd Defendant through the Chief Registrar as well as gave evidence on the fact that he obtained the oral permission of the 2^nd Defendant to travel out of his station. These pieces of evidence could only have been effectively rebutted or debunked by the 2^nd Defendant or the Chief Registrar as the case may be, and not through any other person, as any such other evidence amounts to hearsay.

Despite all that has been posited, it is unprofessional on the part of the Claimant to lead a protest in the manner he adopted, having unilaterally undertaken to stay off work for two years. It is my opinion that the Claimant does not deserve any form of payment for the said period.

Apart from abandoning his duty post for two years, the Defendants also laid evidence before this Court showing allegations brought against the Claimant that are inimical to the codes of conduct and practice of a judicial officer and which, when proven, may warrant a dismissal. In fact, all these grievous allegations, especially at this time when the judiciary is working round the clock to sweep out negative elements from its sacred fold, are sufficient to show the Claimant the way out. But this Court would not rely on these Exhibits since the Defendants’ witnesses insisted, in their evidence that the Claimant was not dismissed based on those allegations. Whatever procedure under the Rules which the Defendants seek to adopt, a query must precede an investigation and a representation from the employee before taking any disciplinary action. I so hold.

As posited above, the Rules becomes operational after a query has been issued first and a response obtained from the erring officer, which is presented to the Panel that the officer has been guilty of misconduct which is serious enough to warrant a proceeding for dismissal.

It follows therefore that a query, which should be precise and to the point must be issued first to the officer involved as well as complete access to the document(s) or report used against him. The non-adherence to these procedural steps by the Defendants is a fundamental breach of the provisions of Rules regarding the discipline of an officer.

The argument by the Defendants that the Claimant waived his right to fair hearing by abandoning his duty post and not presenting an address for service of a query is an afterthought and this Court would not be bamboozled. This evidence goes to show that no opportunity was created by the Commission to enable the Claimant to face his Accusers. No efforts were made by the Defendants to serve the Claimant with any query or letter of invitation in the first place.

It is an elementary principle of fair hearing that where a person or the Claimant, as in this instant case, is to answer allegations of misconduct against him, such person must be allowed the opportunity to confront his accusers and cross-examine them on the allegations. Anything outside this is an infringement of the person’s right to fair hearing. ALI v NIGERIA CUSTOMS SERVICE BOARD (2018) LPELR-44106; NUHU v OGELE (2003) 18 NWLR (PT.852) PG. 251.

Despite the holding of this Court that the dismissal of the Claimant is wrongful, this Court is not inclined to granting the Claimant any relief of payments of any sum whatsoever; the reason being that the Claimant did not work for 2 years prior to his purported dismissal but was apparently paid his salaries for the said period. This will amount to allowing the Claimant to reap from where he did not sow, having decided on his own volition to abstain from work while waiting for a response to his complaint. Even the Religious Books admonishes that he who does not work should not be allowed to eat. The claimant was able to prove his case in part. I resolved the two issues in favour of the claimant.

Consequently, I hold that the Claimant be reinstated to his position before the alleged dismissal but shall not be entitled to any form of salary or entitlements during the period of this case.

In effect, I hold as follows:

That the dismissal of the Claimant from the Bayelsa State judiciary is wrongful, null and void due to the fact that the claimant was not given fair hearing before dismissing him.

The proceedings and the decision of the 1^st defendant dismissing the claimant from service is hereby set aside.

That the Claimant be reinstated to his position as Chief Magistrate, Grade 1.

The Defendants, their privies, agent, servants, etc., are hereby restrained from taking over any government property in the Claimants’ possession unless by due process of the law.

All the terms of this judgment are to be complied with by the Parties and their respective Counsel within 30 days from today. This is without prejudice to the right of appeal against the judgment by any of the Parties dissatisfied by the judgment.

Judgment is hereby entered accordingly.

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HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE