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ABDULLAHI Y. BAYAWO -vs- NATIONAL DRUG LAW

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP,

Hon. Justice B.A. Adejumo, OFR…………………………………………….President

(President, National Industrial Court of Nigeria)

Date: 16th JANUARY, 2017,                         SUIT NO. NICN/ABJ/303/2014

BETWEEN:

ABDULLAHI Y. BAYAWO}                                                           CLAIMANT/RESPONDENT

AND

  1. NATIONAL DRUG LAW ENFORCEMENT  AGENCY
  2. THE CHAIRMAN, NATIONAL DRUG LAW ENFORCEMENT AGENCY                  DEFENDANTS/
  3. THE BOARD, NATIONAL DRUG LAW ENFORCEMENT AGENCY             APPLICANTS

 

REPRESENTATION:

NOAH ABDUL ESQ., FOR THE CLAIMANT

NO COUNSEL FOR THE DEFENDANTS

JUDGMENT

This suit was initiated by the Claimant vide an Originating Summons dated 22nd day of September, 2014 and filed on 22nd October, 2014. The Originating Summons is supported by an Affidavit of forty-eight paragraphs to which was attached 29 exhibits. The said Affidavit in support of the Originating Summons was deposed to by one Abdullahi Yunusa Bayawo who is the Claimant. As required by the Rules of this Court, the Claimant also filed a written address in support of the originating summons.

In the Originating Summons, the Claimant proposed the following questions for determination by the Court:

QUESTIONS FOR DETERMINATION

  1. Whether by virtue of the combined provisions of S. 150 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and S. 10 of the National Drug Law Enforcement Act, the Attorney-General of the Federation and Minister of Justice has power to issue directive to the Defendants to reinstate the Plaintiff as contained in the letter dated 3rd November, 2010 and as revalidated by the letter of 19th June, 2014?

  1. Whether by virtue of the combined provisions of S. 150(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and S. 10 of the National Drug Law Enforcement Act, the Defendants are not bound to obey, implement and or carry out the aforesaid directive of the Honourable Attorney-General of the Federation that the Plaintiff be reinstated as contained in the letter from the Office of the Attorney-General and Minister for Justice dated the 3rd day of November, 2010 as revalidated by the letter of 19th day of June, 2014 and as formally communicated to the Plaintiff from the office of the Head of Civil Service of the federation vide a  letter dated 21st day of July, 2014?

  1. Whether the refusal and or failure of the defendants to obey, implement and or carry out the directive of the Honourable Attorney-General of the Federation that the Plaintiff be reinstated is not unlawful, null and void and an act of insubordination warranting the intervention of this Honourable Court?

  1. Whether the refusal and or failure of the defendants to obey, implement and or carry out the directive of the Honourable Attorney-general of the Federation that the Plaintiff be reinstated is not a violation of the Plaintiff’s rights against unfair and arbitrary termination/retirement from his employment with the 1st defendant in the light of the findings/recommendation by the Office of the Attorney-General and Minister for Justice in the letters of 3rd November, 2010 and 19th June, 2014 that the Plaintiff’s “appointment was wrongly terminated without due process of law” and that there “were not enough grounds” for the plaintiff’s compulsory retirement?

Reliefs Sought

WHEREOF the plaintiff seeks the following reliefs:

  1. A declaration that the Attorney-General of the federation and Minister of Justice has power to or can issue directive to the Defendants to reinstate the Plaintiff.
  2. A declaration that consequent upon relief 1 hereof, the directive of the Honourable Attorney-General of the Federation that the Plaintiff be reinstated by the Defendants as contained in the letter dated 3rd November, 2010 as revalidated by the letter of 19th June, 2014 is valid, lawful, proper and ought to be obeyed.
  3. A declaration that the Defendants are duty bound to obey, implement and or carry out the aforesaid directive of the Honourable Attorney-General of the Federation that the Plaintiff be reinstated by the Defendants as contained in the letter dated 3rd November, 2010 as revalidated by the letter of 19th June, 2014.
  4. A declaration that the refusal and or failure of the Defendants to obey, implement and or carry out the aforesaid directive of the Honourable Attorney-General of the Federation that the Plaintiff be reinstated is unlawful, null and void and amounts to insubordination.
  5. A declaration that the refusal and or failure of the Defendants to obey, implement and or carry out the aforesaid directive of the Honourable Attorney-General of the Federation that the Plaintiff be reinstated is a violation of the Plaintiff’s rights against unfair, unlawful and arbitrary termination/retirement from his employment with the 1st defendant.
  6. An order setting aside the purported refusal of the Defendants to obey, implement and or carry out the aforesaid directive of the Honourable Attorney-General of the Federation to reinstate the Plaintiff.
  7. An order of mandamus compelling, directing and or mandating the Defendants to reinstate the Plaintiff in compliance with the directive of the Attorney-General of the Federation to that effect and with immediate effect.
  8. An order of mandamus compelling, directing and or mandating the Defendants to pay to the Plaintiff all his salaries, allowances and other entitlements including promotions accruing to the Plaintiff from 23rd march, 2007 to date.
  9. One Hundred Million Naira (N100,000,000.00) general and aggravated damages.
  10. Costs of this suit.

On the 27th day of April, 2015,  the Defendants’ Memorandum of Appearance dated 16th January, 2015 along with their  Counter-Affidavit of eight (8) paragraphs deposed to  by one Salisu Lawan, and the written address in opposition to the Claimant’s Originating Summons were deemed as properly filed and served by an order of this Court. It suffices to state that in response to the processes filed by the Defendants, the Claimant filed a Further and Better Affidavit deposed to on 30/04/2015 to which two exhibits were annexed.

It is important to mention that the Defendants’ Notice of Preliminary Objection dated 26thJanuary, 2015 was disposed of on 29th October, 2015 when the Court in a well considered ruling decided that it has jurisdiction to hear and determine this case.

Sequel to the ruling of the Court that I have just referred to above, the parties adopted their written addresses on 14th December, 2015. Chief Onoja, SAN, for the Claimant drew the attention of the Court to the questions formulated for determination\n by the Claimant. He adopted and relied on the Affidavit in support and attached exhibits, the written address in support of the originating process as well as the Further and Better Affidavit of the Claimant and the exhibits annexed thereto. Learned Silk invited the Court to consider in particular, Exhibits AB16, AB19, AB21, AB22 and AB30 and section 10 of the National Drug Law Enforcement Agency Act [NDLEA Act]. The Court was urged to grant all the reliefs sought by the Claimant.

In opposing the case of the Claimant, their counsel adopted and relied on all the paragraphs of the Counter-Affidavit and the attached exhibits as well as the written address in opposition to the originating summons. Learned counsel urged it upon the Court to dismiss the case of the Claimant.

Let me now pay some attention to the written addresses filed by the parties. In his written address settled by Chief Ogwu Onoja, SAN, and M. A.  Ebute, Esq., the Claimant distilled two issues for determination as follows:

  1. Whether the Defendant have any power, discretion or option to refuse, fail or neglect to obey the directive of the Honourable Attorney-General of the Federation to reinstate the plaintiff.
  2. Whether the plaintiff is entitled to the reliefs sought in this suit.

ARGUMENT OF ISSUE NO. 1

In arguing this issue, learned Silk referred to section 150(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and section 10 of the National Drug Law Enforcement Agency Act (NDLEA) Act. Section 150(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended [1999 Constitution as amended] provides that:

“There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.”

“S. 10 NDLEA Act states as follows:

“S. 10 (1)      The Attorney-General of the Federation may, from time to time, give                          general policy guidelines to the Agency.

            (2)       Without prejudice to the generality of the provisions of subsection (1)                        of this section, the Attorney-General of the Federation may give to the                Agency directives of a general nature or specific directives relating                                     generally to a particular matter or case, as the case may be.

                        It shall be the duty of the Agency to comply with any policy guidelines                        or any directive given by the Attorney-General of the Federation                           pursuant to subsection (1) or (2).”

Learned counsel submitted and urged the Court to accord this provisions their plain and ordinary meanings because the words used are clear and unambiguous. In this regards, he refers to the case of Attorney-General Bayelsa State v. Attorney-General Rivers State (2006) 18 NWLR (Pt. 1012) 596.

 It was therefore submitted for the Claimant that by the combined provisions of section 150(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended [1999 Constitution as amended] and section 10 of the NDLEA Act, the Honourable of Attorney-General of the Federation can issue directive on a particular issue to the Defendants. Flowing from this, it was argued that the directive of the Honourable Attorney-General of the Federation [HAGF] to the Defendants to reinstate the Claimant vide the letter of 19th June, 2014 [Exhibit AB1) is lawful, legal and valid. It was further submitted that pursuant to S. 10 of the NDLEA Act, it is obligatory or mandatory for the Defendants to comply, carry out or give effect to the said directive.

In the estimation of learned Silk, the use of the word “shall” in section 10(c) of the NDLEA Act, imposes a duty on the Defendants to comply with or obey the directive of the HAGF on the reinstatement of the Claimant. On the mandatory nature of the word “shall” when used in an enactment, reference was made to the case of John v. Igbo-Etiti LGA (2013) 7 NWLR (Pt. 1352) 1 at 15, paras. A-C, where it was held as follows:

“… And to make the matter very clear, the section uses the word “shall”. It is trite that whenever the word “shall” is used in an enactment, it connotes imperativeness and mandatoriness. It leaves no room for discretion at all.”

Other cases cited in support of the principle that the use of the word “shall” means imperativeness are Ejilemele v Opara (1998) 9 NWLR (Pt. 567) 587 at 619, paras. C-D, Opara v. Amadi (2013) 12 NWLR (Pt. 1369) 512, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 511, paras. G-C.

It was further submitted for the Claimant that there is a world of difference between a directive and recommendation emanating from the HAGF to the Defendants. Thus, it was argued that while the Defendants may not be duty bound to accept, let alone obey the recommendation of the HAGF, it is not so with a directive coming from the same office of the Attorney-General of the Federation. Learned Silk posited that a directive of the HAGF to the Defendants must be obeyed. In support of this principle he cited and relied on the case of Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572.

Relying on the submissions made above, it was submitted that the refusal and/or neglect of the Defendants to reinstate the Claimant as directed by the HAGF is ultra vires, unlawful, null and void. It was argued that the Defendants have no legal basis to refuse to comply with the directive of the HAGF to reinstate the Claimant. The Court was urged to resolve issue 1 in favour of the Claimant.

ARGUMENT OF ISSUE NO. 2

Learned Silk argued that once the Court comes to a conclusion that the Defendants are legally obliged to comply with the directive of the HAGF on the reinstatement of the Claimant which the Defendants have failed to do, then, the Court can order reinstatement of the Claimant. In support of this principle, learned Silk cited the case of Strabag Construction Nig. Ltd. v. Adeyefa (2001) 15 NWLR (Pt. 735) 1 AT 26, where the Court held that:

“Where an employee’s contract of service is wrongly terminated by his employer for failure to follow the agreed procedure stipulated in the terms and conditions of the contract, the employer is only liable in damages for the breach of the contract of employment and no more. See Ridge v Baldwin (1964) A.C. 40. However, the Supreme Court in the cases of Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 and Olaniyan & Ors v. University of Lagos & Anor (1985) 2 NWLR (Pt 9) 599, established a variation of this settled common law principle by holding that if such an employee is confirmed and pensionable in his service under a Government department, ministry or a statutory body or authority, he would be entitled to be re-instated in the office or position he held before the purported or wrongful dismissal and in addition damages representing his salaries during the period of his purported dismissal.”

Relying on the above holding of the Supreme Court, the Court was urged to come to the conclusion that it can order the reinstatement of the Claimant. Thus, learned Silk urged the Court to order the re-instatement of the Claimant by granting all the reliefs sought. Learned Silk also relied on the case of Atta v. COP (2003) 17 NWLR (Pt. 849) 250.

At this juncture, I will pay attention to the written address of the Defendants. In their undated written address settled by Sunday Joseph Nbona, Esq., the Defendants distilled 2 issues for determination as follows:

  1. Whether the Claimant in this case failed to adduce sufficient evidence to discharge the onus placed on him by Law in establishing his case on the balance of probabilities as to be entitled to the reliefs sought.
  2. Whether or not in the light of the facts and circumstances of the Claimant’s Suit, there exists a valid and legally enforceable directive of the Honourable Attorney-General of the Federation and Minister of Justice for the reinstatement of the Claimant into the service of the 1st Defendant.

ARGUMENT OF ISSUE NO. 1

It was submitted for the Defendants that the Claimant has failed to discharge the burden placed on him by law pursuant to Sections 131 – 133 of the Evidence Act 2011. Also referred to by counsel for the Defendants is the case of Jack v. Whyte (2001) FWLR (Pt. 43) 247, and Omoworare v. Omisore (2011) All FWLR (Pt. 582) 1670. It was argued that the Claimant is not just required to prove the facts he asserts, but that he must adduce credible evidence to establish his claims as he cannot rely on the weakness of the defence. In this respect, learned counsel relied on the cases of A.C.B. Plc v. Emosttrade Ltd. (2002) FWLR (Pt. 104) 540 and Geneva v. Afribank (Nig.) Plc (2013) All FWLR (Pt. 702) 1652, as well as the case of Akinfe v. U.B.A. Plc (2007) 10 NWLR (Pt. 1041) 185 at 199.

Learned counsel for the Defendants posited that although the Claimant hinged his case on the enforcement of the directive of the HAGF but has failed to adduce any legally admissible evidence that establishes the existence of any such directive for his reinstatement. It was further argued that apart from the depositions in the Affidavit in support of the originating process which the Defendants have disputed, there is no any credible piece of evidence on the said directive of the HAGF. It was submitted for the Defendants that considering all the paragraphs of the Counter-Affidavit, especially, paragraphs 4 and 5 (xv), (xix), xxi), (xxii), (xxiii), (xxviii), (xxxi) and (xxxii), as well as Exhibits NDLEA 10B & 11 annexed thereto, the burden was placed on the Claimant to establish a valid and subsisting directive of the HAGF that he seeks to enforce.

On behalf of the Defendants, it was submitted that Exhibits AB 13(12), AB14, AB16 and AB21 are inadmissible for two reasons. Firstly, it was posited that the documents were not addressed to the Claimant. Secondly, it was argued that the documents being public documents within the contemplation of section 102 of the Evidence Act 2011 were not certified as required by law. It was therefore submitted that the documents must have been certified before the Court can admit and rely on them judicially. Learned counsel drew the attention of the Court to section 102 of the Evidence Act 2011 and the cases of Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) 608 at 678; Goodwill and Transport Investment Ltd v. Umeh (2011) 8 NWLR (Pt. 1250) 500 at 541; and Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1 at 26.

Still on the principle that the Court cannot admit nor rely on public documents that have not been certified, learned counsel relied on the cases of Alamieyeseigha v. FRN (2006) 16 NWLR (Pt. 1004) 1 at 123 – 124 and Elder Okon A. Udoro&Ors v. The Governor, Akwa-Ibom State & Ors (2010) 11 NWLR (Pt. 1205) 322 at 337.

Learned counsel argued that given the ferocious denial of the depositions in the Affidavit in support of the Claimant’s originating process, and the absence of any credible evidence of a valid and subsisting directive of the HAGF on the reinstatement of the Claimant, the claims of the Claimant must fail. The Court was therefore called upon to resolve the first issue formulated by the Defendants in their favour.

ARGUMENT OF ISSUE NO. 2

The Defendants concede that the HAGF pursuant to Section 10 of the NDLEA Act can give directive to the 1st Defendant on any particular issue, and that the 1st Defendant is under obligation to accept and comply with such directive. However, learned counsel submitted that this Court, Coram Agbadu-Fishim, in a Judgment/Ruling delivered on 11thApril, 2014 in Suit No. NICN/LA/102/2012 had declared the action founded on the directive of the HAGF to be statute barred. In this respect, learned counsel argued that the said directive of the HAGF has ceased to exist by operation of law in view of the ruling of Hon. Justice Agbadu-Fishim. It was further submitted on behalf of the Defendants that having declared the directive of the HAGF as statute barred, the same cannot be revalidated by any non-judicial act or by any subsequent administrative directives.

From the point of view of the Defendants’ counsel, if the Court accepts the purported revalidation of the extinguished directive of the HAGF as contained in the letter dated 19th June, 2014 Ref. PR1/CRD/1232/1 [Exhibit AB 19], it would them mean that the Court has set aside a valid and subsisting decision of this Honourable Court delivered by Hon. Justice Agbadu-Fishim.

Learned counsel drew the attention of the Court to the fact that there is no pending appeal against the decision of the Court in Suit No. NICN/LA/102/2012 holding that the reliefs sought by the Claimant in that case were statute barred and unenforceable.

In the point of view of learned counsel, the directive of the HAGF in the letter dated 3rd November, 2010 has been superseded by the judgment/ruling of Hon. Justice Agbadu-Fishim in the case under reference. It was submitted that in view of Sections 6(1), (2), (3) and (5)(c) as well as Section 243 (2) and (3) of the 1999 Constitution as amended, the decision of the Court is binding and can only be reversed on appeal. In support of this proposition, learned counsel cited the cases of Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131 at 163, para. E, Per Onu, JSC and Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 549, paras.H – A.

Against the backdrop of the cases cited above, learned counsel submitted that the purported revalidation of a directive already held to be statute barred by the Court through administrative action is an attempt to circumvent a valid decision of the Court. The Defendants argued that if the Claimant is allowed to have his way in this Suit, the integrity of the judicial process and due process of the law would be highly compromised. On the principle that the only acceptable way to override the decision of a court of competent jurisdiction is by appealing against the decision, learned counsel cited the case of Anatogu v. Iweka II (supra).

 It was further submitted on behalf of the Defendants that this Court cannot order the reinstatement of the Claimant under any guise as that would amount to sitting on appeal over the decision of the Court in Suit No. NICN/LA/102/2012. The Court was urged to uphold the contention of the Defendants in this respect.

Finally, learned counsel for the Defendants submitted that the case of Strabag Construction Nig. Ltd v. Adeyefa (supra) relied upon by the Claimant is distinguishable from the instant case and is therefore inapplicable.

The Court was called upon to dismiss the case of the Claimant.

I have given adequate consideration to the processes filed in this case, the submissions made for and against the claims of the Claimant as well as the authorities relied upon by counsel on both sides of the divide. I will now proceed to determine this case on the basis of the two issues formulated for determination by the Defendants. I am persuaded that the issues donated for determination by the Defendants are more encompassing and germane to a final determination of this case. For instance, the Defendants conceded to the fact that pursuant to S. 10 of the NDLEA Act, the HAGF can issue directive to the 1st Defendant on any particular issue and that the 1st Defendant is legally bound to comply with such directive. In view of this concurrence of positions between the parties, Issue No. 1 formulated by the Claimant becomes utterly unnecessary.

I now turn to the first issue distilled on behalf of the Defendants: Whether the Claimant herein failed to adduce sufficient evidence to discharge the onus placed on him by Law in establishing his case on the balance of probabilities.

The main gist of the arguments canvassed by the Defendants in respect of the above issue is that even though the Claimant brought this action to enforce the directive of the HAGF in favour of his reinstatement by the Defendants, he has failed to adduce evidence of a valid and subsisting directive of the HAGF to that effect. It was argued that all the material depositions in the Affidavit in support of the Claimant’s originating process have been vigorously disputed by the Defendants in their Counter-Affidavit.

At paragraph 9 of the Affidavit in support of the Originating Summons, the Claimant deposed to the fact that the HAGF had directed the 1st Defendant to reinstate him vide his letter of 3rd November, 2010 referred to as Exhibit B16. He went on to state that the 1st Defendant thereafter misrepresented facts to the HAGF by its letter dated 9th December, 2010 [Exhibit B17]. At paragraph 34 of the same Affidavit, the Claimant revealed that the HAGF by another letter dated 19th day of June, 2014 [Exhibit AB 19] revalidated his earlier directive for his reinstatement. It is remarkable that the Claimant did not disclose why the HAGF’s letter of revalidation became necessary. The case of the Claimant is that the Defendants have failed to comply with the directive of the HAGF which is subsisting.

The totality of the case of the Defendants as borne out of the depositions in the Counter-Affidavit is that the HAGF’s letters of 3rd November, 2010 and 19th June, 2014 were not addressed to the Claimant but to the 1st Defendant. Hence, it was submitted that the Claimant failed to adduce admissible evidence of a valid and subsisting directive of the HAGF on his reinstatement since the two Exhibits being public documents were not certified as required by law. It was posited that the Claimant cannot rely on both Exhibits AB 16 and AB 19.

I have perused the letter of the HAGF dated 19th June, 2014 attached to the Claimant’s Further and Better Affidavit as Exhibit “AB 31”. In the said letter, the HAGF stated that he revalidated his earlier directive of 3rdNovember, 2010 directing the 1st Defendant to reinstate the Claimant. Exhibit “AB 31” was addressed to the Chairman/Chief Executive of the 1st Defendant. On a close examination, the letter or Exhibit “AB 31” is a certified copy of the letter. Certification of public documents is governed by S. 104 of the Evidence Act which is to the following effect:

 “S. 104 (1)   Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

            (2)       ………………………………

            (3)       An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section”.

I am persuaded that the office of the HAGF as the issuing authority of Exhibit “AB 31” will certainly keep the file copy of the letter. Thus, the HAGF is an officer in custody of the letter of 19th June, 2014 as contemplated by Section 104 of the Evidence Act 2011. The long and short of all that I have been labouring to say is that the Exhibit in consideration is a valid certified copy of a public document. I therefore reject the assertion of learned counsel that the HAGF’s letter of 19th June, 2014 sought to be relied upon by the Claimant is not certified. I repeat that it is a certified true copy as required by law.

However, there is a snag in the case of the Claimant because Exhibit “AB 31” makes reference to an earlier directive in the HAGF’s letter of 3rd June, 2010 it sought to revalidate. The original directive of the HAGF for the reinstatement of the claimant as contained in his letter of 3rd November, 2010 was referred to in the Affidavit in support of the Originating Summons as Exhibit B 16. This Exhibit is also a public document issued by the HAGF and addressed to the 1st Defendant. Only a certified true copy of the letter can be judicially accepted and acted upon by the Court. Unfortunately for the Claimant, Exhibit B 16 is not certified as required by Section 104 of the Evidence Act. The implication of this is that the Claimant has not adduced credible evidence of a directive by the HAGF that he should be reinstated by the Defendants. In other words, there is no evidence of any directive that Exhibit “AB 31” purportedly revalidated. The law is that you cannot put something upon nothing and expect is to stand. See McFoy v. UAC (1961) 3 All ER 1169 at 1172.

At this juncture, let me give some thoughts to the assertion of learned counsel for the Defendants that the directive of the HAGF for the reinstatement of the Claimant was held to be statute barred by this Court, Coram Agbadu-Fishim in Suit No. NICN/LA/102/2012. I am unable to accept this proposition. I have read the ruling over and over again, and I did not see any portion of it where the Court expressly held the said directive to be statute barred. In any case, the Claimant in Suit No. NICN/LA/102/2012 did not seek to enforce the directive of the HAGF for his reinstatement. It therefore means that all submissions and authorities cited in support of the position that the original directive of the HAGF in the letter of 3rd November, 2010  extinguished by the Ruling/Judgment of Hon. Justice Agbadu-Fishim in Suit No. NICN/LA/102/2012 are of no moment.

Flowing from my analysis on the first issue donated for determination by the Defendants, I resolve the issue in favour of the Defendants. I hold that there is no evidence of the directive of the HAGF to the Defendants to reinstate the Claimant before the Court.

I now turn to the second issue formulated by the Defendants in their written address in opposition to the Originating Summons. The critical question that I must answer at this point is whether there is a valid and enforceable directive of the HAGF to the Defendants to reinstate the Claimant? As remarkably put by the defence, the success of the Claimant’s case is dependent on whether there is a valid and subsisting directive of the HAGF to the Defendants to reinstate the Claimant. I will now put forward the sequence of events as could be gleaned from the facts and evidence put before the Court.

On the 3rd day of November, 2010, the HAGF by his letter directed the 1st Defendant to reinstate the Claimant to his position. This letter elicited a reaction from the 1st Defendant/Applicant by way of a letter dated 9th December, 2010 intimated the HAGF with its position on the issue and requested the HAGF to allow the Court to adjudicate on the matter. Thus, by a letter dated 4th January, 2011 and personally signed by the HAGF, his earlier directive for the reinstatement of the Claimant was specifically withdrawn. That was not the end of the matter: By another letter dated 19th June, 2014, and signed by the Solicitor General & Permanent Secretary, the 1st Defendant/Applicant was informed that the hitherto withdrawn directive of the HAGF was revalidated. Thus, the Defendants were once again directed to reinstate the Claimant.  Not to be outdone, the 1st Defendant by a letter dated 30thJune, 2014 pleaded with the HAGF to reconsider his decision to revalidate his original directive for the reinstatement of the Claimant.

The major snag as I have earlier observed is that the Claimant did not adduce certified copy of the said letter containing the original directive for his reinstatement. Interestingly too, the Claimant did not adduce evidence of the HAGF’s letter of 3rd November, 2010. I reiterate my earlier position that there is no evidence that the HAGF directed the Defendants to reinstate the Claimant as claimed by him.

Even if it is assumed without conceding that the Court can legally act on Exhibit B16 annexed to the Affidavit in support of the Originating Summons that will still not be the end of the matter bearing in mind the ruling I have just delivered in this case. In this said ruling, I have held as follows:

“From the narration of the sequence of events that I have given above, it is glaringly clear that every letter relating to the existence or non-existence of the directive of the HAGF which the Claimant is seeking to enforce by the case is relevant and should be allowed. The objective is that justice might be done in this case. I am convinced that given the circumstances of this case, it is only proper, fair and just to allow the introduction of Exhibit NDLEA 10B at this stage bearing in mind that the Court may allow evidence at any stage of the proceedings. I do not see merit in the argument of the Claimant that the intendment of the present application is to arrest the judgment of this Court. In coming to this conclusion, the Court is conscious of the fact that the letter by which the 1st Defendant pleaded with the HAGF to reconsider his decision to revalidate his directive was written on 30thJune, 2014. This Court is interested in unearthing the truth, the whole truth, and nothing but the truth. It is for these reasons that I will allow the introduction/tender of Exhibit NDLEA 10B as it adds a fresh perspective, or is it, dimension to the whole issue of the directive of the HAGF for the reinstatement of the Claimant.

My decision to allow the introduction of the Exhibit is within the purview of Section 12(2) of the National Industrial Court 2006, which states thus:

“12(1)……………………………………………..

(2) Subject to this Act and any rules made thereunder, the Court

(a) may regulate its procedure and proceedings as it thinks fit; and

(b) shall be bound by the Evidence Act but may depart from it in the interest of justice”.

In line with the power conferred on this Court by the provisions of the statute reproduced above, I hereby allow the introduction of Exhibit NDLEA 10B notwithstanding that this matter is already adjourned for judgment”.

Based on the foregoing portion of the ruling that I have reproduced above, Exhibit NDLEA B10 is legally before the Court. In the said letter personally signed by the sitting HAGF, a huge shadow has been cast on the letter from the office of the HAGF purporting to revalidate the directive for the reinstatement of the Claimant as contained in the letter dated 19th June, 2014. Let me reproduce the second paragraph of Exhibit NDLEA 10B which I found really cogent and compelling. It reads as follows:

“This is to notify you that upon consideration of the issue, I have taken the decision that the said letter of 19th June 2014 referenced PRI/CRD/1232/1 signed by the immediate past Solicitor-General of the Federation/Permanent Secretary, Ministry of Justice purporting to revalidate the earlier rescinded directive of the Honourable Attorney-General of the Federation and Minister of Justice (HAGF) to restore Abdullahi Yunusa Bayewo to the service of your Agency, is hereby disowned as it was a nullity ab-initio”.

The 1st Defendant was further advised to disregard the purported letter of revalidation. The effect of Exhibit NDLEA 10B is to destroy any credibility or evidential worth hitherto accorded to the letter from the HAGF of 19th June, 2014 purportedly revalidating the directive for the reinstatement of the Claimant.

In the face of Exhibit NDLEA 10B therefore, any pretence that the HAGF has directed the 1st Defendant to reinstate the Claimant has been proved to be wrong. No such directive exists. I therefore align myself with the position of the Defendants that in the circumstances of this case, and taking into account the evidence before this Court, there is no valid or enforceable directive by the HAGF to the Defendants to reinstate the Claimant. I consequently resolve the second issue formulated by the Defendants in their favour. I hold that there is no valid subsisting directive issued by the HAGF to the Defendants to reinstate the Claimant to his position. I further hold that the Claimant is not entitled to the reliefs he is seeking.

In sum total, the action of the Claimant lacks merit and it is hereby dismissed.

Judgment is entered accordingly.

…………..………………………………………………………………

Hon. Justice B. A. Adejumo, OFR

President,

National Industrial Court of Nigeria

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