Rhiuyinosa Albert Osarumwense -VS- The Independence Corrupt

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE OYEBIOLA. O. OYEWUMI

DATED 28^TH OF JANUARY, 2020 SUIT NO.: NICN/BEN/01/2016

BETWEEN:

RHIUYINOSA ALBERT OSARUMWENSE CLAIMANT

AND

THE INDEPENDENT CORRUPT PRACTICES

& OTHER RELATED OFFENCES COMMISSION DEFENDANTS

THE CHAIRMAN INDEPENDENT CORRUPT

PRACTICES AND OTHER RELATED OFFENCES

COMMISSION

REPRESENTATIONS:

Simon Ezeh Ezenwa, for the claimant

Yinka Muyiwa with him are Uyi Obayagbora, V.O Iwoba for the defendants

JUDGMENT

By a General Form of Complaint dated 4^th of January, 2016 the claimant commenced this suit. On the 24^th May, 2017 claimant filed a further amended General form of complaint and other accompanying processes. The defendants equally filed amended statement of defence after about 18 months. Parties initially agreed to resolve this case amicably, the defendants had earlier agreed to reinstate the claimant if only he can forgo his arrears of salary from the date of the determination of his appointment by the defendant, which the claimant refused. Hence trial continued. Claimant’s claims against the defendants are as follows;

A Declaration that the procedures followed by the defendants in terminating the appointment of the claimant with the 1^st defendant is inconsistent with the procedures laid down by the Public Service Rules, Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 and other labour laws relating to termination of appointment with statutory flavour and therefore, illegal, wrongful, unlawful, null and void.
A Declaration that the termination of the claimant’s appointment with the 1^st defendant vide a letter dated 6^th day of October, 2015 and served by the claimant on 26^th day of October, 2015 is inconsistent with the provisions of Public Service Rules, the claimant’s letter of appointment, the Constitution of the Federal Republic of Nigeria, 1999 and other labour laws in respect of termination of appointment with statutory flavour and therefore illegal, wrongful, unlawful, null and void.
A Declaration that the employment of the claimant with the 1^st defendant is still subsisting.
A Declaration that the claimant is entitled to all his emoluments from the month of October, 2015 when his appointment with the 1^st defendant was purportedly terminated to the date of his reinstatement.
An Order of this Honourable Court compelling the defendants to reinstate the claimant to his employment with the 1^st defendant without any loss of seniority, rank or entitlement whatsoever.
An Order of this Honourable Court compelling the defendants to pay to the claimant all his entitlement and emoluments from the month of October, 2015 when his appointment with the 1^st defendant was purportedly terminated by the defendants to the date of his reinstatement.
The sum of N4, 000, 000.00 (four million naira) as general damages.

Trial commenced on 29^th January, 2018. The claimant testified for himself as CW. He adopted his written statement of the 25^th of May, 2017 and that of 9^th of January, 2018 respectively as his evidence in this case. He tendered the following documents which were admitted in evidence, to wit- Exhibits R-R5 and was cross examined by the defence. One Evans B. Peters, Deputy Superintendent, Legal Department, gave evidence for the defendants as DW. He also adopted his witness statement on oath dated the 21^st of May, 2019 as his evidence. He tendered a document which was admitted in evidence and marked as Exhibit R6 and was also cross examined by the claimant’s counsel.

The case of the claimant is that he was employed by the 1^st defendant on the 11^th of October, 2005 and his appointment was subsequently confirmed. He rose through the ranks to the position of Assistant Commissioner on salary grade level 15 with effect from 1^st January, 2015. On the 29^th of June, 2015, a query on an allegation of operating another business outside of his employment to which he accordingly responded to it. Thereafter, on the 26^th of October, 2015, he received a letter dated 6^th of October, 2015 terminating his appointment. Being dissatisfied with the procedure leading to his termination, he instructed his counsel, Olayiwola Afolabi and Company, to write a letter titled ‘Pre-action Notice’ dated the 17^th of November, 2015 to the defendant. He admitted that he is one of the members of Integrity Ville Ventures and that one Mr James Ishom was also suspended. Claimant’s grouse is that the new panel set up by the 2^nd defendant did not take into account his Grade level as four out of the six panel members were subordinate to him. He stated further that the termination of his appointment was actuated by malice and discrimination as two other members of Integrity Ville Venture were given three months suspension. That the procedure leading to termination of his appointment was contrary to the provision of the Public Service Rules.

The defendants by their amended statement of defence dated 21^st May, 2018 averred that the claimant together with his partners were still in the service of the 1^st defendant when they floated and registered Integrity Ville Ventures, a private corporate entity for his personal gain and his partners. When the defendants discovered the misconduct and contravention of the Public Service Rules, a query was issued to him. When the misconduct was discovered, the defendants set up two panels to investigate the allegations against him. They gave him opportunity to ascertain the veracity of the allegation of misconduct against him. He admitted that he was one of the partners that floated and incorporated Integrity Ville Ventures, a corporate entity for his personal gain and that of his partners. They averred further that contrary to the pleadings of the claimant, the chairman of the committee of enquiry Mr. Mike Sowe was a Grade level 16 officer while the claimant is on Grade Level 15. They urged the Court to dismiss claimant’s claims.

Pursuant to the rules of this Court, at the end of trial learned counsel on either side filed their respective final written addresses. The Defendants filed their final written address dated 1/07/2019 wherein counsel on their behalf formulated a sole issue for Court’s determination viz

Whether from the pleadings and evidence on record, the claimant has established his claims to entitle him to judgment against the defendant:

On this sole issue, learned counsel submitted that it is not in contention that the employment of the claimant is one with statutory flavor governed by the Federal Public Service Rules, the Corrupt Practices and Other Related Offences Act and Regulations and the Conditions of Service of the Independent and Corrupt Practices Related Offences Commission- Exhibit R6. Counsel argued that the employment of the claimant was terminated in full compliance with the relevant provisions. Exhibit R2 (query) was issued to the claimant for the breach of Rules 030424 and 030425 of the Public Service Rules, amounting to misconduct. The answer to the query by the claimant was deemed unsatisfactory, thus, Exhibit R3 was issued terminating the employment. Furthermore, Counsel contended that the claimant has conceded that he appeared before the two disciplinary panels to defend himself. That qualifies as sufficient fair hearing under the law. He relied on the cases of University of Calabar v. Essien [1996] 10 NWLR (Part 447) 225 at 262. Olatunbosun v. Nigeria Institute for Economic Research [1988] 3 NWLR (Part 80) 25 at 52.

Learned counsel submitted that the claimant’s contention that only the Federal Civil Service Commission can discipline him and any disciplinary action must be communicated to the Commission is wrong at law. He cited Sections 3(1), (12), (13) and (14) of the Independent Corrupt Practices and Other Related Offences Act 2000, which inter alia, saddles the Commission with disciplinary powers on its members. See also the application of the Public Service Rules to Federal Government Parastatal, particularly Section 1 Rules 160101, 160102 and 160103; Section 2 Rule 160201(a), (b) and (c); Section 5 Rules 160501 and 160502.

Finally, counsel posits that the claimant is not entitled to a claim for damages and reinstatement concurrently from the Court. Counsel urged the Court to refuse the claims of the claimant same have not been established.

The Claimant filed his final written address on 9^th October, 2019, wherein the Claimant’s counsel raised the four issues for determination as follows.

Whether from the circumstances of the case the defendants have complied with the procedures specified in the Public Service Rules in the termination of the claimant’s appointment with the 1^st defendant.
Whether from the circumstances of this case, the defendants can be said to have proved or established the allegation of misconduct levelled against the claimant upon which the claimant’s appointment with the 1^st defendant was terminated.
Whether from the circumstances of this case the defendants can be said to have proved or established the allegation of misconduct leveled against the claimant upon which the claimant’s appointment with the 1^st defendant was terminated.
Whether the claimant has proved his case by preponderance of evidence or by balance of convenience to entitle him the reliefs sought in this case.

The learned counsel to the claimant stressed that the employment of the claimant is one with statutory flavor governed by the letter of employment, the Constitution of the Federal Republic of Nigeria, Public Service Rules and other Labour Laws. He posited that there has been substantial non-compliance with the above terms in terminating the appointment of the claimant, the only exception being the issuing of query. He submitted that the record of proceedings of the two panels that the claimant appeared before have not been made available to him or the Court. It is only these records of proceedings that the Court can use to determine if the procedures laid down by the law have been complied with.

Learned counsel posited that the defendants failed to submit the matter to the Federal Civil Service Commission. By Rules 030102 and 030103 of the Public Service Rules, only the Federal Civil Service Commission can terminate the appointment of officers from Grade Level 7 and above. In addition, counsel submitted that the argument of the defendants that by Rule 160501, a parastatal can discipline its employees independent of the Federal Civil Service Commission holds no water. This is because the rule mentions a statutory board or governing council and in the instant case the termination was done by the 1^st defendant. Moreover, the defendants in their preliminary objection stated that the 1^st defendant has no Board. Equally, the argument of the defendants that by Section 3(12) of the Corrupt Practices and Other Related Offences Act it can exercise disciplinary measures against the claimant goes to no issue because provision is subject to Rule 030103 of the Public Service Rules that limits the disciplinary power to Grade Level 13 and below, and cases of termination, from Grade Level 06 in cases of termination.

Learned counsel contended that assuming but not conceding that the defendant has the authority to terminate the claimant’s appointment, this was done contravention of the procedures laid down in the Public Service Rules and Exhibit R6, although the claimant objects to the application of the latter to the instant suit. These procedures include: failure to communicate the outcome of the panels is contrary to Rule 030303 and 050203 of the Public Service Rules and Exhibit 6 respectively. He cited in support the cases of Federal Civil Service Commission v. J.O. Laoye (SC 202/87) 10989NGSC 35; Oloruntoba Oju v. Abdul Raheem (supra) ratio 23. Equally, the members of the panel that investigated the claimant according him are the juniors of the claimant contrary to Rule 030307 of the Public Service Rules and Exhibit R6. He cited the case of Rear Admiral Francis Echie Agbiti v. The Nigerian Navy [2011] LPELR-2944 (SC). In addition, the period for the disciplinary procedure extends beyond the 60 days allowed in Rule 030307 (xiii) and 050206 of the Public Service Rules and Exhibit R6. Furthermore, the defendants failed to forward the claimant the report of the investigation which indicted the claimant. This contravenes Rules 030307(i) and 050206 of the Public Service Rules and Exhibit R6. He urged the Court to declare that the claimant was not given fair hearing for the defendant’s failure to follow the laid down disciplinary procedures.

On issue two, learned Counsel submitted that it is against the rule of natural justice for the defendants to subject the claimant before a panel constituted with his junior officers. He posited that the termination of the claimant’s appointment was fraught with malice as two other members of Integrity Ville Venture were given three months suspension on the same issue as that of the claimant.

Learned counsel argued in respect of issue three, that the claimant was investigated on an allegation of misconduct in contravention of Rules 030424 and 030425 of the Public Service Rules and the conditions of service of the 1^st defendant. Be that as it may, these provisions do not prevent an officer from acquiring a house. The registration of Integrity Ville Venture was done to aid the staff of the 1^st defendant from the above goal, after being duped severally by developers introduced by the 1^st defendant. Moreover, the 1^st defendant has by its conduct approved Integrity Ville Venture by sending the letter to the Managing Director of Brookmore International Limited. Counsel stated that there is nothing to show whether the allegation was proved or not because the outcome of the investigation was concealed by the defendant and not before the Court. Counsel urged the Court to resolve issue three in his favour.

It was submitted in respect of issue four, that the claimant has established in issues 1 to 3 that the termination is wrongful, therefore his employment is still subsisting and he is entitled to all the reliefs claimed. He cited the case of F.M.C. v. Ido-Ekiti v. Alabi [2012] 2 NWLR (Pt. 1285) pg. 411, ratio 8.

Having carefully read the processes filed by the parties, evidence tendered as well as the arguments of counsel, it is in my humble view that a sole issue framed by the defendants will effectively answer the contentions of the parties thus:

Whether the claimant has proven his case to be entitled to his claims.

The gravamen of this suit lies in the fact that according to the claimant his employment was terminated without due recourse to the Public Service Rules, Section 35 of the 1999 Constitution as amended and other labour laws relating to termination of his appointment with statutory flavour. The defendants denying this assertion stated that the claimant’s appointment was duly terminated upon the discovery that claimant was floating a Company while in its employ for personal gains and with a view to deceive it and its members. They pleaded that this act constituted misconduct, hence the claimant’s appointment was terminated in accordance with the terms of his employment. It is not in contention that the employment of the claimant is one laced with statutory flavour. This is in view of clause 2 of exhibit R, i.e. claimant’s letter of employment dated 11^th of October, 2005 which provides that “The terms of your appointment shall be as provided for in the Federal Public Service of Nigeria and subject to the provisions of the ICPC Act, Rules and Regulations. It is the law that employment that enjoys statutory flavour is determinable by the protection of such appointment in the enabling statute. See the case of UBTH Board of MGT v Oronsaye [2018] LPELR 45655 CA. The only point of divergence amongst the parties is as to whether there has been compliance with the provisions of the Public Service Rules or the ICPC rules on the termination of the appointment of the claimant. The claimant by his written address at pages 6 and 7 have argued that by Rules 030102 and 030103 of the Public Service Rules, only the Federal Civil Service Commission can terminate the appointment of officers from Grade Level 7 and above.

Now, Rule 030102 of the Public Service Rules it provides that:

the power to dismiss and to exercise disciplinary control over officers in the Federal Public Service is vested in the Federal Public Service Commission. This power may be delegated to any member of the commission or any officer in the Federal Public Service;

Rule 030103 of the same Rules equally provides that:

the Federal Public Service Commission has delegated full disciplinary powers to Permanent Secretaries and Heads of Extra Ministerial Offices in respect of officers on salary GL 13 and below with exception of the power of dismissal which has been delegated only from GL 06 and below”

From the foregoing it is apparent that only the Federal Public Service Commission that has the power to discipline officers from grade level 14 and above. However, a careful reading of the claimant’s letter of appointment exhibit R reveals that the claimant’s appointment is regulated by the laws of the Federal Public Service of Nigeria subject to the Independent Corrupt Practices and other Related Offences Commission Act (ICPC Act), Rules and Regulations. (Underline mine). What this means is that the Federal Public Service Rules governs the employment of the claimant but it is Subject to the ICPC Act (An Act of the National Assembly) and the Rules and Regulations (Exhibit R6). Section 3(12) of the Independent Corrupt Practices and other Related Offences Commission Act, 2000 provides that;

The Commission shall have power to appoint, dismiss and exercise disciplinary control over its staff and for this purpose shall prescribe its own rules” (underline mine). By Section 2 of the Independent Corrupt Practices and other Related Offences Commission Act supra the term ‘Commission’ was defined to mean;

The Independent Corrupt Practices and other Related Offences Commission established under Section 3 of this Act”

The golden rule of interpretation of statute is that where the words of a statute are clear and unequivocal, they should be given their natural or grammatical meaning. See the cases of Mamonu & Anor v. Dikat & Ors [2019] LPELR-46560SC; Gana v. SDP & ORS [2019] LPELR- 47153SC; Abegunde v, Ondo State House of Assembly [2015] LPELR-24588SC was cited with approval in Gana’s case; See also Orji v. F.R.N. [2007] 13 NWLR (Pt. 1050) 55 at 78, paras B – E (CA). It is easily discernible from the provision of Section 3(12) captured supra that the Independent Corrupt Practices and other Related Offences Commission Act supra and the conditions of service exhibit R6 and not the Federal Public Service Commission Rules simpliciter that regulates claimant’s employment. It is only where there are no adequate provisions in the ICPC Act, rules and regulations that the Court will resort to the Public Service Rules for guidance. It is imperative to state however, that the defendants relied on the Public Service Rules 030424 and 030425 as allegations in the query issued to the claimant on the 29^th June, 2015. It is in this light that I find and hold that the claimant’s employment is regulated by the Public Service Rules as well as the ICPC Act and rules as stipulated in his letter of appointment i.e. exhibit R. I so find and hold.

Now, it is notorious that an employer, before terminating the appointment of its employee, must satisfy the requirements of fair hearing by following the procedure as provided for in its contract of employment binding it. Fair hearing is a mandatory condition of justice captured to guarantee that parties are given the opportunity to be heard and defend any allegation leveled against them. See the cases of Nwokocha v A.G of Imo State [2016] LPELR 40077 SC; Ogboro v Registered Trustees of Lagos Polo Club & Anor [2016] LPELR 40061 CA; Audu v FRN [2013] LPELR 19897 SC. An important question that requires an answer is whether or not the first defendant followed its procedure in terminating claimant’s appointment. A perusal of the Independent Corrupt Practices and other Related Offences Commission (ICPC) conditions of service chapter 5 at Section 2 provides for the disciplinary procedure for misconduct thus;

“050202 As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him, it shall be his duty to inform the officer in writing giving details of the unsatisfactory behaviour and to call upon him to submit within a specified time such written representations as he may wish to make to exculpate himself from disciplinary action. After considering such written representations as the officer may make within the specified time, the superior officer shall decide whether;

The officer has exculpated himself in which case, he shall be so informed in writing and no further action shall be necessary or;
The officer has not exculpated himself but it is considered that he should not be punished in which case the appropriate formal letter of advice shall be issued to him and he shall be required to acknowledge its receipts in writing, or
The officer has not exculpated himself and deserves some punishment, in which case Rule 050204 shall apply.

050203 Where a committee set up by the Commission makes recommendations of a disciplinary nature on an officer, the Commission shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him by the committee. If the officer refuses or neglects to reply to the allegations within a reasonable time or did not make any reply at all, the commission or its agent shall proceed to accept and enforce the recommendations of the tribunal or inquiry and take such disciplinary action against the officer as deemed appropriate.

050204 (a). It shall be the duty of every officer to report any case of misconduct that comes to his notice to an officer superior to the officer involved.

(b) When an officer’s misconduct is brought to the notice of his superior officer, it shall be the duty of the superior to report it to the Secretary to the Commission without delay. If he considers it necessary that the officer should be interdicted, such recommendations shall be made in the report.

(c) On receiving the report, the Secretary to the Commission shall take action in accordance with Rule 050202 as appropriate and if necessary, shall interdict the officer.

(d) At the appropriate point in the investigation, the officer may be suspended in accordance with Rule 050305.

050205 if it is represented to the Commission that an officer has been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 050202 with a view to recommending dismissal, it may cause an investigation to be made into the matter in such a manner as it considers proper and the officer shall be entitled to know the whole case made against him and shall have adequate opportunity of making his defence. If as a result, the Commission decides that the allegation is proved, it may inflict any other punishment upon the officer such as reduction of increment or otherwise.

050206 Any disciplinary proceedings against a female staff which might otherwise have been taken during the period of her maternity leave shall be postponed until the leave has expired. Such postponement however shall not in any way prejudice the proceeding with this rule.

(i) The officer shall be notified in writing of the grounds on which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer shall be given access to any such document(s) or report(s) used against him and he shall be asked to state in his defence that he has been given access to documents

(ii) If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representation within the time fixed, the Commission may take such action against the officer as it deems appropriate.

(iii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate.

(iv) Where necessary, the Commission may set up a committee which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. Members of the committee shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board. [emphasis mine]

(v) The officer shall be informed that, on a specific day, the question of his dismissal shall be brought before the committee and he/she shall be required to appear before it to defend himself and shall be entitled to c all witnesses. His failure to appear shall not invalidate the proceedings of the committee;

(vi) Where witnesses are called by the committee to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

(vii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Commission think it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;

(viii) The committee having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the committee for further inquiry or report. The Commission shall not itself hear witnesses.

(ix) If upon considering the report of the commission together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

(x) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him if he was interdicted or suspended;

(xi) If upon considering the report of the committee the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him to retire, the Commission shall, without further direct accordingly; and

(xii) All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.”

I took the liberty of capturing the whole provision to enable the Court to have a holistic consideration of same vis a vis the procedure adopted by the 1^st defendant.

It is important to state also that the above cited statute is impari materia with Rules 030301-030307 of the Public Service Rules, 2008.

It is clear vide Exhibit R6 the claimant’s terms of employment that the procedure to be followed by the defendants before terminating the claimant’s employment on the allegation of misconduct is the notification of the alleged offence vide a query to him and where a committee set up by the Commission makes recommendations of a disciplinary nature on an officer, he shall be afforded an opportunity to make representation in person on the matter. He shall also be given the documentary evidence to be used against him prior to the meeting of the panel and be allowed to cross examine witness/es if any. After the consideration of any representation, the Commission if satisfied that he should be terminated/dismissed, such action shall immediately be taken. All the above procedure enunciated by the above Statute are to ensure fair hearing in the disciplinary procedure of its officers.

Now, did the 1^st defendant comply with the highlighted provisions? A careful study from the documents tendered in this Court shows that the claimant was on the 29^th of June, 2015 by exhibit R2 issued a query on the grounds that he;

caused to be incorporated a Company called Integrity Vile Ventures wherein you subscribed as a member of the company, appointed yourself as a partner and was therefore working for the company while still in the employ of the Commission and thus, in multiple employment;
caused to be used the premises of the Commission as the registered address of the said Integrity Ville Ventures and;
in the correspondences by the Integrity Ville Ventures with persons/companies who were neither members of the cooperative nor staff of the commission, frequently referred to the Company as the welfare unit of the commission whereas you knew that the company was not a unit or an organ of the Commission and you thereby induced those parties into believing that they were dealing with Commission, thus exposing the Commission to risks and embarrassment.
All these acts were without the requisite permission of the Commission and contravention of the Public Services Rules nos 030424 and 030425, and the conditions of service of the commission. This is tantamount to official misconduct.”

The claimant on 2^nd of July, 2015 responded to the query and stating by clause 13 and 14 of the response thus;

…Suffice it to state that Integrity Ville Ventures was a registered company name as a special corporate vehicle only to deliver the project for staff of ICPC. The use of ICPC address was in consideration of the fact that the project was for staff of the Commission, driven by staff of the Commission who spent the better part of the day in the Commission. The fact and existence of the project was at all material times to knowledge and awareness of the management and board. Hence the letter of introduction to one of the early contractors Brookmore-.See Attached
That though I am a member of Integrity Ville Ventures driving the house project the project it is not a growing concern. We have not ventured into any other business outside this project. All the monies gotten so far for the project are from the equity contributions of off-takers including my own equity contributions N3million. So it will not be correct to say that I am in another employment as a member of Integrity Ville Venture a service that I am rendering for self and other off takers”

The claimant by paragraphs 40 and 41 of his amended statement of fact averred that the panel of enquiry was set up at different times to inquire the activities of Integrity Ville Venture and by paragraphs 52 and 53 respectively pleaded that the members who presided at the panel of inquiry were subordinate to him in clear breach of the Public Service Rules. It is however, interesting to note that there is nothing on record evincing that he was ever called before a panel or was given an opportunity to make representation before the 1^st defendant’s committee as required by law. The defendants failed or refused to tender the report of any of the panels allegedly constituted by them to investigate the claimant, to show what transpired at the meeting. Claimant is alleging that members of the panel were his subordinates and that he was not shown the documents that he was confronted with prior to the panel meeting. He alleged bias by the 1^st defendant against him. All these questions would have been easily captured in the Report of the two panels but none was tendered by the defendants. In response to the grouse of the claimant that members of the panel constituted are his subordinates in office, the defendants submitted that they were not his juniors in office. That in law cannot be sufficient to satisfy the Court that indeed the defendants complied with the provisions of its contract respecting the membership of the panel. The Report would have laid bare before the Court what transpired before the panel for the Court to make its deductions if it was tendered by the defendants. I find that the basis upon which the claimant’s appointment was terminated is flawed having fallen short of the law guiding the claimant’s condition of service and thus it cannot stand as it is trite that you cannot put something on nothing and expect it to stand. See the cases of Macfoy v UAC [1962] AC and the Apex Court decision in the case of Aji v. Chad Basin Development Authority & Anor [2015] LPELR 24562 SC. The inference of which is that the 1^st defendant were not judicious in following the process as stipulated in the Act and Regulation of the ICPC or the PSR upon which he was queried in determining the employment of the claimant. The Apex Court held in Aji’s case supra, that in the rules of fair hearing natural justice can neither be negotiated nor relinquished. The reason is that any violation to that basic rule of fair hearing should automatically bring to nil whatever had been done in the process of enquiry embarked upon by the panel, judicial or administrative. See also the cases of Darma v. Eco Bank Nig Ltd [2017] LPELR-41663 SC; Epenetu v Ofegobi & ors [2012] LPELR 9229 CA. It is the decision of the apex Court in the above cases that the right of an employee under investigation to fair hearing is sacrosanct and where breached, the action will be deemed to be null and void and of no effect whatsoever. Also, I find that the allegation leveled against the claimant was unfounded. The Secretary of the 1^st defendant wrote a letter introducing the said Company allegedly incorporated by the claimant. This has indeed turned the defendants’ position against their own head. In that the so called “Illegal company-Integrity Ville Ventures” was introduced by it to another Company to give it all the support and cooperation required. It stated that the company was registered for the sole aim of packaging a staff housing Estate for its staff. It went on to state at paragraph 2 of exhibit R4 that the off takers which includes the claimant are all bonafide members of staff of the 1^st defendant. What all these tell me is that the defendants were parts and parcel of the whole process, but chose to terminate claimant’s employment albeit without due regard for their statutory requirement. It is consequent upon the derision of the ICPC conditions of service and the Public Service Rules guiding the discipline of the claimant that I find that the claimant’s appointment was unlawfully terminated. Accordingly, the termination of the claimant by the defendants is declared null and void and thus the letter dated 6^th of October, 2015 is hereby set aside.

It is the claimant’s claim that his employment is still valid and subsisting and therefore he is entitled to be reinstated by the defendant without any loss of seniority, rank or entitlement whatsoever. Also, that the defendants are to pay to the claimant all his entitlements and emoluments from the month of October, 2015 when his appointment with the 1^st defendant was purportedly terminated by the defendants to the date of his reinstatement. I wish to reiterate that employment with statutory flavour as in this instant, can only be terminated in the manner prescribed by the relevant statute and any other contrary manner of termination is null and void ab inito. Having declared that the withdrawal or termination of the claimant’s employment is null and void as same was ultra vires the powers of the 1^st defendant, the effect is that the claimant is entitled to return to his duty post// reinstated. See the case of Kwara State Judicial Service Commission & Ors v. Tolani [2019] LPELR-47539SC. Reinstatement in law means the placing of a person who has been dismissed/terminated without justification back to his position from which he was dismissed and also to restore him to his status before the termination as it is deemed that the employee never left his employment. Judicial Service Commission Cross Rivers State & Anor v Young [2013] LPELR- 20592 SC. Also the case of Mohammed M. Alhassan v. Ahmadu Bello University, Zaria & Ors (2009) LPELR-8138 (CA), pp. 55-56, paras. B-E, per Orji-Abadua, J.C.A., “In Balogun vs. University of Abuja, [2003] 13 NWLR Part 783 p. 42, it was held that in contracts with statutory flavor, unless the contract is properly determined in the manner envisaged by the contract of employment, an order for specific performance or reinstatement will normally be made by the court, meaning that once the finding is made by a trial court that an employment has a statutory flavor, and the termination was wrongly made and void, the only consequential order that can follow such finding is the re-instatement of the employee. It was stated that the trial court having made a finding that the termination of the appellant’s employment was not in accordance with the statutory regulations that governed the employment and thus declaring the termination null and void, the only inference of that finding, was that, the employment of the appellant is deemed to be continuous. It would be as if there had never been a termination. An order of reinstatement will therefore be the only logical order to follow such finding.”

It goes without saying that since the nature of claimant’s employment is one with statutory flavour and same has been declared unlawful, the appropriate order to make in the circumstance is to make an order of reinstatement of the claimant. He is equally entitled to be paid all his salary and other allowances from the month of October, 2015 when his employment was determined till the day of his reinstatement. I so find and hold.

As to relief 7, claim for N4, 000,000 general damages, the claimant is not entitled to this relief because in the case of Onalo v. Chairman Police Service Commission & Anor (2015) 55 N.L.L.R. (Pt. 188) p. 473 at p. 501 it was held that: “In an employment with statutory flavor which has been wrongfully terminated, the claimant will be entitled to reinstatement only as both reinstatement and damages cannot be awarded together.” It is in the light of this that I find and hold that claimant’s claim for damages is not grantable and thus discountenanced.

In sum, I find that claimant’s case succeeds in the most part, thus I make these declarations and orders-

That the termination of claimant’s appointment by the defendants is unlawful.
That the letter of termination dated 6^th of October, 2015 is hereby set aside.
That the claimant is entitled to be reinstated to his erstwhile position forthwith.
That the claimant is entitled to the payment of his salary and other emoluments from the month of October, 2015 when his appointment with the 1^st defendant was purportedly terminated to the date of his reinstatement.
That claimant’s claim for damages fails.
This judgment is to be complied with including payment of all claimant’s salary arrears within 30 days failing which it is to attract 10% interest per annum.

No award as to cost.

Judgment is entered accordingly

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge