ACN DARE ADEGBOLA v. NATIONAL DRUG LAW ENFORCEMENT AGENCY & ANOR
(2019)LCN/12948(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/A/91/2015
JUSTICES:
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
ACN DARE ADEGBOLA – Appellant(s)
AND
1. NATIONAL DRUG LAW ENFORCEMENT AGENCY
2. ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)
RATIO
THE THREE CATEGORIES OF EMPLOYMENT
It is settled law that there are three categories of employment which are “(a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer, and (c) those where the employment is regulated or governed by statue, often referred to as having statutory flavour.” See OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR. (PT. 9) 599; OLAREWAJU VS.AFRIBANK (NIG) PLC (2001) 13 NWLR (PT. 731) 691; CENTRAL BANK OF NIGERIA VS. IGWILLO [2007] 14 NWLR (PT. 1054) 393.
In CBN VS. IGWILLO cited above the Court explained that an employment is said to have a statutory flavour “when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee.” When an employment is found to have statutory flavour, the employee in essence enjoys a special status which is beyond that of the master/servant relationship and in order to discipline that person the procedure created by that statue must be followed. See UNIVERSITY OF ILORIN VS. ABE (2003) FWLR (PT. 164) 267; KUNLE OSISANYA VS. AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT. 1031) 565; COMPTROLLER GENERAL OF CUSTOMS & ORS VS. GUSAU (2017) LPELR – 42081. PER IDRIS, J.C.A.
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
It is settled law that he who asserts must prove. SeeSOKWO VS. KPONGBO (2008) NWLR (PT. 1086) 346 S.C. PER IDRIS, J.C.A.
WHETHER OR NOT A TRIAL COURT MUST NOT BASE ITS DECISIONS ON SPECULATION AND MATTERS NOT SUPPORTED BY EVIDENCE
The law is trite that “a trial Court must not base its decision on speculation and extraneous matters not supported by the evidence before the Court as this will occasion miscarriage of justice.” In other words, the Court’s findings must be supported by concrete and real evidence and not speculation as held by the Court inISAH VS. STATE (2007) NWLR (PT. 1049) 582. See also ONUOHA VS. STATE (2002) 1 NWLR (PT. 748) 406; OSHODIN VS. STATE (2001) 12 NWLR (PT. 726) 217; AGHOLOR VS. STATE (1990) 6 NWLR (PT. 155) 141. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant by Notice of Appeal dated 5/8/2014 and filed on the 14/8/2014 appealed against the decision/judgement of the Federal High Court Abuja Judicial Division, in Suit No. FHC/ABJ/CS/408/2007 delivered on the 6th of day of May, 2014 by Honourable Justice G. O. Kolawole wherein the trial judge dismissed the Plaintiff’s (now Appellant) suit in favour of the Defendants (now Respondents).
The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant was employed by the 1st Respondent in 1991 as a legal Officer by Exhibit A. He rose to the level of an Assistant Commander of Narcotics and was moved to various Directorates in the course of his service. By a letter dated 23/3/2007 (Exhibit B) the Appellant was retired for “services no longer needed” along with 70 other staff of the 1st Respondent.
Aggrieved by the retirement, the Appellant commenced a civil action by Writ of Summons and Statement of Claim issued on the 19th day of June 2007 (See pages 1- 10 of
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the Record of Appeal) against the Respondent seeking the following reliefs:
1. A DECLARATION that the purported retirement of the Plaintiff as Assistant Commander of Narcotics (ACN) conveyed to him in writing by the Director-General/Secretary of the Defendant, in as much as it was not based on provisions of the National Drug Law Enforcement Agency Act Cap 253 LEN 1990 and on the Rules of Discipline made pursuant to consultations with the Federal Civil Service Commission proceedings of the investigation is unlawful, illegal, unconstitutional, null and void and of no effect.
2. A DECLARATION that the tenure of the Plaintiff as Assistant Commander of Narcotics (ACN) in the employment of the National Drug Law Enforcement Agency Act set up under Cap 253 LFN 1990 is still subsisting.
3. AN ORDER setting aside the removal of the plaintiff as his tenure as Assistant Commander of Narcotics (ACN) in the employment of the National Drug Law Enforcement Agency Act set up under Cap 253 LEN 1990 is still subsisting as the purported letter of retirement which was communicated to him under the hand by The Chairman of the 1st Respondent through a letter dated 23
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March 2007 is illegal, unlawful, null and void.
4. AN ORDER reinstating the Plaintiff to his office as Assistant Commander of Narcotics (ACN) in the employment of the National Drug Law Enforcement Agency Act forthwith.
5. AN ORDER of injunction restraining the Defendants whether by themselves or by their servants, officers, agents or privies or otherwise howsoever, from purporting to try, investigate or inquire into the role of the plaintiff so long as it is based on the inquiry conducted by Hon. Obayan Panel set up by the Government of the Republic of Nigeria and in respect of which no fault or blemish was found on the Plaintiff’s in the petition (report).
The Respondent on being served with the Appellant’s Writ of Summons and Statement of Claim entered their appearance and filed their Statement of Defence on the 11th day of July 2007. The Appellant by Motion on Notice filed 22/09/2010 applied to amend his Statement of Claim which was heard and granted on the 27/06/2011. Shortly after the Defendants had filed their Final Written Address dated 7/1/2013 the Plaintiff counsel realising a grave error by Motion on Notice dated
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23/1/2013 again applied to amend his Statement of Claim. The second amended Statement of Claim was dated 22/1/13.
The Appellants hearing in this suit began on the 23/11/11, the Plaintiff who testified in his own behalf told the Court that prior to 23/03/2007, the 1st Respondent was his employer, he further deposed to 2 witness statements on Oath. PW1 tendered Exhibits A, A1, A2, A3, AA, B, B1, C, D, D1, E and E1. The Appellant in the trial Court made a case that his retirement was unlawful and a violation of his conditions of service. The Appellant maintained that his ‘compulsory retirement’ which ranged from the fact that the rules and procedures to be followed in termination, dismissal and retirement were not considered or applied. It was the case of the Appellant that to justify his termination the 1st Respondent’s Chairman granted a press interview in which he categorically stated that the retirement of the Appellant and 70 others was as a result of their tampering with drug exhibits, an allegation which when made and proved, amounts to a serious criminal offence under the NDLEA Act and other penal legislations.
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That the Respondent failed to satisfy the Public Service Rules, breached the principles of fair hearing and if proved would render the ‘compulsory retirement’ of the Appellant null and void. The Appellant also alleged that his employment enjoyed statutory flavour as such the respondent could not retire him for “services no longer required” but could only retire him if found guilty of gross misconduct after going through disciplinary procedure or until he reaches the retirement age of 60 years or 35 years of Service.
The hearing of Respondent case began on the 26/9/12 and only one witness was called who described himself as an Assistant Director in charge of Administration in the NDLEA. He acknowledged that he knows the Plaintiff as the 1st Respondent’s employee and tendered Exhibits 1, 2 and XXA. The Respondents on their part maintained that the Appellant’s letter of appointment did not state whether the Appellant’s appointment was permanent and pensionable one as there are two types of appointment in the agency. That the Appellant’s employment has no statutory flavour as such the 1st Respondent’s Board could retire a staff as deemed fit under 2001 NDLEA Rules and Regulations.
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The Respondents also argued that even if the Appellant’s appointment is pensionable, the 1st Respondent’s Board had the power to retire the Appellant. The Respondent also maintained that the Appellant was fired because his services were no longer needed.
The trial Court held that the Appellant’s employment was pensionable having regards to the Public Service Rules and NDLEA Act but the Appellant’s employment did not enjoy statutory flavour. The trial judge dismissed all five claims of the Appellant including a claim to reinstate the Appellant. The Appellant being dissatisfied with the decision of the trial Court sought leave of the Court to Appeal to appeal against the decision. In Accordance to the rules of Court parties filed and adopted their respective briefs of arguments at the hearing of the appeal.
The Appellant from the five (5) grounds of appeal distilled four (4) issues for the determination of the appeal captured below:
i. Whether or not the trial Court was right in holding that the appellant’s retirement from the employment of the 1st Respondent does not amount to compulsory retirement. (From grounds 1 and 2)
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ii. Whether or not the contract of employment of the appellant was invested with statutory flavour or attended by special circumstances to place it beyond that of mere master and servant relationship. (From ground 4)
iii. Whether the trial Court was right in holding that Exhibits D and D1 can best be described as hearsay evidence in law. (From ground 3)
iv. Whether the trial Court was right when it considered extraneous matters in deciding whether the appellant’s retirement was lawful or not. (From ground 5)
Learned counsel for the Appellant argued that the Appellant’s employment and applicable law leave no one in doubt that the Appellant’s employment is one laced with statutory flavour to which the Public Service Rules apply. The Appellant referred to Sections 6, 7, 8.2 of the National Drug Law Enforcement Agency Act CAP N30 Laws of the Federation 2004 (NDLEA Act) and Section 318 of the1999 Constitution. The Appellant maintained that a combined reading of all four sections reveals that employees of the 1st Respondent are governed by the act and therefore confers statutory flavour to the employment. Counsel also argued that employment with
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statutory flavour is that employment where the procedure for employment and discipline are governed by statute. Additionally, the learned counsel argued that Section 6 of the NDLEA Act is to the effect that service with the 1st Respondent shall be approved service for pension.
Learned counsel submitted that the evidence before the Court clearly showed that the employment between Appellant and the 1st Respondent is undoubtedly beyond a master servant relationship. Counsel therefore argued that any retirement outside the required permissible grounds for retirement as provided for in the Public Service Rules amounts to compulsory retirement in law, which has no legal basis. That by agreeing that the employment of the Appellant is governed by the Public Service Rules the trial Court should have come to the conclusion that the laid down procedure for disengagement as a public servant should have been followed by the 1st Respondent. Learned counsel for the Appellant also submitted that by accepting three months’ salary in lieu of notice it did not preclude the Appellant from challenging his unlawful retirement.
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In regards to whether the trial Court was right to hold that Exhibits D and D1 can be described as hearsay evidence the Appellant argued that the exhibits were newspaper publications containing exclusive interviews granted by the Chairman of the 1st Respondent. That the interview unilaterally states why the Appellant and other staff were disengaged from service and that at no time during the course of trial did the Respondents object to the admissibility of this document or its content. Counsel therefore argued that the reasoning and conclusion of the trial judge that these exhibits are hearsay has no basis in law.
The Appellant’s counsel further submitted that at no point throughout the course of trial did the Respondent join issues with the Appellant on the effect of the content of Exhibit D and D1 and as such it was unnecessary to subpoena the Chairman of the 1st Respondent to give evidence in respect of the interview he granted.
Learned counsel for the Appellant also argued that exhibits D and D1 to a larger extent formed the case of the Appellant at the trial Court as the Appellant was compulsorily retired based on the allegations that the Appellant tampered with exhibits. Disciplinary action
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based on this serious and criminal allegation according to the Appellant should comply with relevant provisions of the enabling statute, Public Service Rules and the principles of fair hearing which the Respondent flagrantly violated.
The Appellant additionally argued that documentary evidence is the best form of evidence because they are not only assailable but are more authentic than oral evidence. That no oral evidence can be allowed to discredit or contradict the content of documentary evidence unless fraud is pleaded. Counsel further submitted that at trial that the Appellant tendered and demonstrated by oral evidence backed by his pleadings that the 1st Respondent compulsorily retired him as a result of allegations for which he was never tried.
Learned counsel to the Appellant also submitted that the testimony given by DW1 which reads “I agree the allegations in Exhibit D AND D1 are weighty and punishable under the law. I am not aware if the plaintiff was asked to face any panel on the allegations in Exhibit D and D1 because, the Plaintiff was not working in the Exhibits room but was in the prosecution. I am aware that the Plaintiff was
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among the 71 staff of the 1st Defendant that were retired at that particular period” is to the effect that DW1 concedes to the fact that the allegations in Exhibits D and D1 are weighty and at no point was the Appellant confronted with those allegations before he was compulsorily retired. Learned counsel further submitted that an exclusive interview cannot be classified as hearsay especially when viewed from the perspective that the party on the other side did not contradicted the content of said publication.
To the question of whether the trial Court was right when it considered extraneous matters in deciding whether the Appellant’s retirement was unlawful or not, the Appellant argued that it has been held in a plethora of cases that the case of action in a suit is determined by the Plaintiff’s case and not what the Court or Defendant perceives the case to be. The Appellant argued that the judge considered extraneous matters when he held that “PW1 testified that he is now a legal practitioner and a research fellow at the Obafemi Awolowo University, Ile Ife. He told the Court that he is aware that Obafemi Awolowo University is a Federal
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Government Agency. This question, may have been asked by the Defendants Counsel with reference to the relief wherein the plaintiff seeks to be reinstated to his office in the 1st Defendant but when PW1 was pressed further on this issue, he told the Court that:
“that it is not true that outside the NDLEA, I am gainfully employed at the Obafemi Awolowo University. My stay in Obafemi Awolowo University is as a Student and not as a worker,” When I reflected back on the PW1 evidence in Chief to the effect that he testified that “I am also a research fellow at the Obafemi Awolowo University, Ile Ife, Oshun State where I presently undertake a Master of Philosophy and a doctorate programme on Jurisprudence and legal theory” I was a little bit confused when that evidence is juxtaposed with the latter evidence given by PW1 that his current engagement in Obafemi Awolowo University, Ile Ife “is as a Student not a Worker.”
The Appellant argued that his current employment has no nexus whatsoever in determining whether the compulsory retirement of the Appellant was justifiable or not. Counsel further argued that the Court should not embark on adversarial
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jurisprudence in dealing with issues or arguments not raised by the parties. That at no point during trial did the Court ask counsel to address it on the issue of whether the Appellant was a student or was in government employment after retirement. These authorities were relied on:-
1. PHCN V MR I.C OFFOELO (2013) 4 NWLR. PART 1344
2. COMPTROLLER ABDULLAHI B GUSAU V COMPTROLLER GENERAL OF CUSTOMS al 3 ORS (2014) LPELR -23367 (CA)
3. BARRISTER ISMAEL AHMED V ALHAJI NASIRU AHMED & 3 ORS (2013) 15 NWLR PART 1377
4. UJAM V I.M.T (2007) 2 NWLR PART 1019
5. LIPEDE V SONEKAN (1995) 1 NWLR (PT. 374) 668
6. N.I.C.O.N. V POWER & IND ENGINEERING & CO LTD
7. MUOMAH V ENTERPRISE BANK LTD (2015) LPELR -24832
8. CHIEF AUGUSTINE A NAWA V AG CROSS RIVER & ANOR (2007) LPELR – 8294
9. OLANIYAN V UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599
10. MR ISA SAIBU V KWARA STATE POLYTECHNIC ILORIN (2008) LPELR – 4524 (CA)
11. MILITARY ADMINISTRATORS BENUE STATE V ULEGEDE (2001) 17 NWLR PART 741
12. MR AUGUSTINE THOMPSON EBEM & ANOR V MR SUNDAY NSEYEN (2016) LPELR – 40122
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13. LEKANÂ AFOLABI V MR. STEPHEN OLA (2016) LPELR 40186 (CA)
14. ODELEYE V ADEPEGBA (2001) 5 NWLR (PT. 706) 330
15. NJABA LOCAL GOVERNMENT COUNCIL V UCHENDU VITALIS & ORS (2010) LPELR 40122 (CA)
16. NIGERIA AIR FORCE V SHEKETE (2002) 18 NWLR (PT. 798) 129 P 151 PARAS F – G
17. HIS HIGHNESS NTOE EDET ETIM OMIN III & ORS V THE GOVERNOR CROSS RIVER STATE & ORS (2007) LPELR – 4241 (CA)
The Respondent on the other hand submitted that the appeal can be determined on two issues which they formulated thus:
i. Whether the learned trial judge was right in holding that the Appellant’s retirement did not amount to compulsory retirement and the Appellant did not prove that his employment with the 1st Defendant was invested with statutory flavour (From grounds 1,2 and 3)
ii. Whether the findings of the trial judge that Exhibit D and D1 were hearsay was right and whether the trial Court considered extraneous matters in deciding the matter before him. (From grounds 4 and 5)
Regarding the first issue of whether the trial judge was right in holding that the Appellant was not retired compulsorily and that his
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employment was not invested with statutory flavour the Respondent argued the following:
That the Appellant did not tender his NDLEA conditions of service and that during the course of cross examination when the Appellant tendered an abridged copy of the NDLEA order 2001 (Page 321. records of Appeal) he did not take advantage of the document to show how his retirement violated his conditions of service. The Respondent agreed with the trial judge who found that there was a gap left by the Appellant in that he did not show his employment was protected by statue neither did he show that he could only be removed according to the procedure laid down by the NDLEA Act.
The Respondent further argued that from the Evidence tendered the trial judge rightly came to the conclusion that the Appellant was a pensionable employee of the 1st Respondent. However, the documents tendered could not show the Courts that the Appellant could not be retired until after a trial or investigation for misconduct for which he was found liable or until he was sixty years old.
The Respondent also argued that the trial judge rightly held that he could not describe the
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Appellant’s retirement as “compulsory retirement” as contrary to the documents filed in the beginning of the action in 2007, Exhibits D and D1 introduced two years after the commencement of the action could not change the character of the Appellant’s action. Additionally, Exhibit D and D1 had no evidential value as such the court could not come to the conclusion that the Appellant was retired for the reasons contained in the exhibits.
The Respondent additionally submitted that the Appellant’s employment was not vested with statutory flavour because the Courts have held in OLANIYAN VS. UNILAG (1985) 2 NWLR (PT. 9) 599 that “An employment with statutory flavour is that employment where procedure for employment and discipline are governed by statute.” Applying the definition in the above case and that of CHIEF TAMUNOEMI IDONIBOYE-OBU VS. NNPC (2003) the Respondent held that the Appellant had not proven that his employment enjoys statutory flavour as none of the documents tendered showed a nexus between the abridged conditions of service tendered by Appellant and the NDLEA Act.
The Respondent also buttressed the fact that the onus was on the employee who
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complains that he was wrongly terminated to place before the Courts the terms of the contract of employment and prove in what manner it was breached. The Respondent concluded that the Appellant did not make out a case of compulsory retirement, that the Appellant was a pensionable employee but no facts or evidence was before the Court to show that the Appellant’s employment enjoyed statutory flavour.
On issue two regarding whether the findings of the trial judge that Exhibit D and D1 were hearsay was right the Respondent argued that hearsay evidence has no evidential value as such whether the Respondents object to it or not is immaterial. The Respondent further argued that on the complaint that the Respondent did not join issues with the Appellant on the exhibits, the Respondent is only obliged to join issues on material facts in issue. That Exhibit B speaks for itself clearly when it stated that the Appellant was retired “for service no longer needed” but the Appellant seeks to vary its clear content by using Exhibits D and D1 which was an interview made 2 years after. The Respondent further submitted that having not called the said Giade who made the
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statements in Exhibit D and D1 as a witness to link his statements with Exhibit B the Appellant failed to give Exhibit D any evidential value.
On whether the trial Court considered extraneous matters in deciding the matter the Respondent held that the comments of the judge regarding the Appellant’s contradictory testimony as regards his status at the Obafemi Awolowo University Ile-Ife had no effect and in no way influenced the judgment of the Court. That it is not every slip in a judgement that needs to be elevated to a ground of Appeal as only life issues that affect the conclusion reached by the court should be considered.
The Court was urged to dismiss the Appeal. These authorities were relied on:-
1. OLANIYAN V UNILAG (1985) 2 NWLR PT. 9) 599
2. CHIEF TAMUNOEMI IDONIBOYE-OBU V NNPC (2003) 2 NWLR (PT. 805) 589 @ 631
3. CHRISTIAN ILOABACHIE V PROF DOTUN PHILIPS & ANOR (2002) 14 NWLR (PT. 787) 264 @ 285
4. WAEC V OSHIONEBO (2007) ALL FWLR. (PT. 370) 1507
5. KWARA STATE CIVIL SERVICE COMMISSION & ORS V ABIODUN (2009) ALL FWLR (493) 1315
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6. EDOSA V ZACCALA (2006) ALL FWLR (PT. 306) 881
7. UJAM V IMT (2007) 2 NWLR (PT. 1019) 470
8. NIA V. AYANFALU (2007) 2 NWLR (PT. 1018) 246
STATUTORY AUTHORITIES
NDLEA. ACT CAP N30 LFN 2004
2006 EDITION OF CIVIL SERVICE RULES
The Appellant filed a reply brief where he replied to both Issues raised by the Respondent in their brief. The Appellant argued that the evidence he led at the trial Court demonstrated convincingly that his employment has statutory flavour as the Appellant did not hold office at the pleasure of the 1st Respondent. That the Respondent also conceded that the employment of the Appellant is not a mere servant relationship as it is regulated by the NDLEA Act and the Public Service Rules.
The Appellant also argued that if his employment was governed by the Public Service Rules, why was his retirement not in accordance with the Public Service Rules. The Appellant submitted that having tendered the Public Service Rules his employment can only be terminated in line with the provisions of the rules. That a cursory look at the records will clearly show that the Appellant’s progression while in the service of the 1st
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Respondent was not done at the pleasure of the lst Respondent but rather they were done in line with the NDLEA Act and the rules governing the Public Service.
The Appellant further argued that the Respondent relied heavily on the Supreme Court’s case ofCHIEF TAMUNOEMI IDONIBOYE-OBU Vs. NIGERIAN NATIONAL PETROLEUM CORPORATION (2003) LPELR – 1426 but that the authority is inapplicable because of the following reasons:
i. The issue of whether the employment of the Appellant was terminated in line with the Public Service Rules was not considered by the Supreme Court
ii. Having held that the Appellant’s employment is pensionable and governed by the Public Service Rules the consequence is that the Appellant’s employment can only be terminated in line with the rules
iii. The authority can stand in light of the more recent decision of the Supreme Court in COMPTROLLER GENERAL OF CUSTOMS V GUSAU, (2017) LPELR – 42081 (SC)
In reply to issue 2, the Appellant argued that what takes the content of Exhibit D and D1 away from the realm of hearsay evidence is that the content of D and D1 was not denied by the Respondent. That having confronted the
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Respondent with the content of Exhibit D and D1, it was left for them to have either admitted or denied the allegations contained therein.
Additionally, the Appellant argued that the mere fact that the content of Exhibit D and D1 was issued two years after the institution of the suit at the trial Court does not by any stretch of imagination make the documents irrelevant. That the documents tendered were to demonstrate that the Appellant was wrongly retired from service. The Appellant also argued that there is a presumption of genuineness in respect of Exhibit D and D1 which can only be rebutted by the Respondents and having failed to rebut the presumption the learned trial judge ought to have placed evidential value on the documents to determine whether the retirement was in line with extant laws.
LIST OF AUTHORITIES
1. COMPTROLLER GENERAL OF CUSTOMS & ORS VS. GUSAU (2017) LPELR – 42081 (SC)
2. OLOJEDE & ANOR VS. OLALEYE & ANoR (2012) LPELR 9845 (CA)
I have read the briefs filed by both parties herein and from the issues distilled by the parties and I believe the issues distilled by the Respondent aptly captures the
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essence of the complaints and challenges mounted by the Appellant against the decision of the trial Court. I shall therefore adopt the issues distilled by the Respondent’s for the determination of this appeal. The issues again are:
i. Whether the learned trial judge was right in holding that the Appellant’s retirement did not amount to compulsory retirement and the Appellant did not prove that his employment with the 1st Defendant was invested with statutory flavour (From grounds 1, 2 and 3)
ii. Whether the findings of the trial judge that Exhibit D and D1 were hearsay was right and whether the trial Court considered extraneous matters in deciding the matter before him (From grounds 4 and 5).
ISSUE ONE
I will start with whether the Appellant’s employment was laced with statutory flavour. It is settled law that there are three categories of employment which are “(a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer, and (c) those where the employment is regulated or governed by statue, often referred to as having statutory flavour.” See OLANIYAN VS. UNIVERSITY OF
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LAGOS (1985) 2 NWLR. (PT. 9) 599; OLAREWAJU VS.AFRIBANK (NIG) PLC (2001) 13 NWLR (PT. 731) 691; CENTRAL BANK OF NIGERIA VS. IGWILLO [2007] 14 NWLR (PT. 1054) 393.
In CBN VS. IGWILLO cited above the Court explained that an employment is said to have a statutory flavour “when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee.” When an employment is found to have statutory flavour, the employee in essence enjoys a special status which is beyond that of the master/servant relationship and in order to discipline that person the procedure created by that statue must be followed. See UNIVERSITY OF ILORIN VS. ABE (2003) FWLR (PT. 164) 267; KUNLE OSISANYA VS. AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT. 1031) 565; COMPTROLLER GENERAL OF CUSTOMS & ORS VS. GUSAU (2017) LPELR – 42081.
In this case the National Drug Law Enforcement Agency created by the National Drug Law Enforcement Agency Act Cap N3OLFN 2004 (NDLEA Act) is a Parastatal by virtue of Sections 160101 and 160102 of the Public Service Rules (Exhibit XXA) which is responsible for combating all criminal activities associated with illicit drugs.
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Section 5(5) and (6) of the NDLEA Act respectively read thus: “The Agency may, from time to time, appoint such other staff, as it may deem necessary, to assistant the Agency in the performance of its functions under this Act” and “The staff of the Agency appointed under Subsection (5) of this section, shall be appointed upon such terms and conditions of service as the Agency may, after Consultation with the Federal Civil Service Commission, determine.” While Section 5 (7) states that “The staff of the Agency shall be public officers as defined in the constitution of the Federal Republic of Nigeria, as amended.”
It was dearly averred by the Respondent in the Statement of Defence that at the time of the Plaintiff’s employment in 1991 no conditions of service existed. That it was only in 2001 that the Respondent attempted to have a Conditions of Service called the NDLEA Order 2001 (Exhibit 1) but it does not apply to the Appellant according to the Respondent because “the NDLEA Order 2001 was approved by the board of the agency in 2001 but the Federal Civil Service Commission is yet
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to approve same” and “the NDLEA is yet to be gazetted as a scheduled organization under the Pension Act Cap 381 L.F.N 1990 suggesting that the NDLEA Rules and Regulations 2001 has not clothed the Plaintiff with any statutory Flavour.” (paragraph 5 and 7 Statement of Defence page 65 Records of appeal)
Section 160401 (b) of the Public Service Rules rightly states that ‘All such Conditions of Service for Parastatals shall be approved by their respective Boards and ratified by the Head of Civil Service of the Federation,‘ This means there was no general regulation made or approved pursuant to Section 5 of the NDLEA Act relating to leaving the service at the time the Appellant was employed, Section 160103 of the Public Service Rules states:
“Parastatals are to retain and improve existing rules procedures and practices in their establishments and ensure that there are no deviations from the general principles contained in the Public Service Rules. For example, variations in probationary periods and maturity periods for promotion only reflect organizational peculiarities and not inconsistencies with the Public Service
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Rules. However, in the absence of internal rules and regulations on any matter, the relevant provisions of the Public Service Rules shall apply.”
In view of the two sections of the Public Service Rules cited above the Appellant must rely on the Provisions of the Public Service Rules as there is an absence of internal rules regarding conditions of service in the NDLEA. Chapter 16 Section 4 paragraph 160401 of the Public Service Rules also makes it clear that “the provisions in Section 8 Chapter 2 of the Public Service Rules on leaving the service shall apply to all Parastatals as contained in each Parastatal’s condition of employment.” It has already been established above that there was no regulation in force made by virtue of Section 5 of the NDLEA Act relating to leaving the service.
The implication of the above is that Appellant’s employment is regulated by the Public Service Rules. The trial Judge came to this same conclusion albeit using a different reasoning when he stated:
“But when one reads and construes Exhibit AA – the letter by which the Plaintiff’s appointment was confirmed in
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1995, it is legitimate to infer that the Plaintiff’s appointment is a permanent one rather than a temporary or contract employment. Incident of confirmation of appointment is a strange phenomenon to contract of temporary employment, By this fact, I am not in doubt, that in so far as the 1st Defendant is an Agency of the Federal Government of Nigeria (1 refer to the Court of Appeal decision in UNIV OF ABUJA V OLOGE (1996) 4 NWLR (PT. 445) CA 706 @ 717 – 718) it is safe to accept that the 1st Defendant’s employees contract of employment are governed by the Public Service Rules, 2006. (Page 466 Records of Appeal)
However, the trial Judge went on to state that “it is not every employee of statutory bodies, corporation or Agencies of Government who although have their employment regulated by the Public Service Rules that can be described as such employees whose contract of employment is one with statutory flavour. The salt which confers statutory flavour to a contract of appointment/employment must have been conveyed into the terms/conditions of service by the instrument by which the person appointed by reference to the relevant sections or
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Act as governing the contract of appointment or employment. It cannot be extrapolated into it by mainly reading the 1st Defendant’s enabling Act which Exhibit “A” in this case, did not acknowledge let alone incorporate as part of the Plaintiff’s “conditions” of service with the 1st Defendant.” (Pages 467-468 of the Records of Appeal)
Indeed, the trial Judge is not wrong in his argument above because in answering the question of whether an employment has statutory flavour the Court must look at the construction of the contract and the relevant statute. See OJABOR vs. HON. MINISTER OF COMMUNICATIONS & ORS (2018) LPELR – 44257 in this case, the Court of Appeal affirmed what has been the law thus:
“A contract of employment enjoys statutory favour where its conditions are governed by provisions of statute or regulations derived from statute.”
The Court went further to state that:
“the mere fact an employer is a creature of a statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment status into one with statutory flavour. Rather, there has to be a linkage or nexus between the
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employee’s appointment with the statute creating the employer or corporation.”
See also FAKUADE VS. OAUTH (1993) 5 NWLR (PT. 291) 47.
Additionally, an Appellant who claims wrongful termination of his employment with statutory protection “must prove the following material facts: (a) that he is an employee of the defendant; (b) the terms and conditions of his employment; and (c) the war and manner and by whom he can be removed.” See UJAM VS. I.M.T. (2007) 2 NWLR (PT. 1019). In the case at hand, the respondent who has met all the foregoing requirements in that the Appellant seeks to rely on the Public Service Rules, the NDLEA Act and Section 318 of the Constitution which as established above governs the employment of the Appellant.
However, the trial judge’s decision reveals that even though the employment of the Appellant is one that is regulated by the Public Service Rules, these rules do not automatically give statutory flavour to the Appellant’s employment. I do not agree with this reasoning given the decision in the case of BASHIR ALADE SHITTA-BEY VS. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) LPELR – 3056 (SC) where the Court held that:
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“the Civil Service Rules of the Federal Public Service govern conditions of service of Federal public servants and they are made pursuant to the powers conferred on the respondent by virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974, pursuant to the provisions of Section 160 (1) of the 1963 Constitution, Act No. 20 of 1963. These Rules, therefore, in my view, have Constitutional force and they invest the public servant over whom they prevail, a legal status; a status which makes his relationship with the respondent and the government although one of master and servant certainly beyond the ordinary or mere master and servant relationship. Under these Rules_ paragraphs 04107 to 04121 provide the procedure which Must be adopted in the removal or retirement from service, as well as the general disciplining, of public servants in the established pensionable cadre.”
The judgment above shows that the employment of the Appellant in as much as it is backed by Public Service Rules is one backed by statutory flavour. The SHITTA-BEY’s case above also states that;<br< p=””>
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“public servants in the established and pensionable cadre of the Federal Government Service do not hold their offices at the pleasure of the Federal Government. Rather, their appointments are based upon rules and regulations, statutes or memoranda of appointment.”
See also FEDERAL CAPITAL DEVELOPMENT AUTHORITY VS. NAIBI (1990) LPELR 1262 (SC); CENTRAL BANK OF NIGERIA VS, IGWILLO (2007) 14 NWLR (PT. 1054) 393.
Indeed, the Public Service Rules have been made with the main objective and intention of protecting officers, particularly those holding pensionable employment, in the Public Service of the Federation. See COMPTROLLER GENERAL OF CUSTOMS & ORS VS. GUSAU (2017) LPELR 42081 (SC). This is in line with the Supreme Court’s decision in a plethora of cases-
“for an employment to be deemed one with statutory flavour it must have statutory reinforcement or at any rate be regarded as mandatory; 2. To be directly applicable to the employee or person of his cadre; 3. To be seen to be intended for the protection of that employment; and 4. Have been breached in the course of determining the employment
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before they can be relied on to challenge the validity of that determination.”
See also OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; CHIEF TAMUNOEMI IDONIBOYE-OBU vs. NATIONAL PETROLEUM CORPORATION (2003) LPELR- 1426.
The case of COMPTROLLER GENERAL OF CUSTOMS & ORS VS. GUSAU (2017) LPELR – 42081 (SC) also affirmed that;
“This Court, in SHITTA-BEY VS. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC. (Reprint) 26, made it clear that the Civil Service Rules (or Public Service Rules) made by the Federal Civil Service Commission, pursuant to the powers vested by the Constitution, govern conditions of service of Federal Public Servants. The Public Service Rules are not only a by-law of the Constitution; they also have added constitutional flavour to the employment governed thereby. They take the relationship between the civil servant and the government beyond the ordinary or mere master and servant relationship.”
The trial Judge having already agreed to the fact that the Appellant’s employment is governed by the Public Service Rules and pensionable by virtue of the promotions and temporary nature of the Appellant’s
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employment cannot turn around and state the employment is one not laced with statutory flavour. Arriving at this conclusion, the Respondent could not retire the Appellant without following the manner set down in the Public Service Rules. The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; OLATUNBOSUN VS. N.I.S.E.R. COUNCIL (1988) 3 NWLR (PT. 80) 25. Chapter 2 Section 8 Paragraph 020810(1) of the Public Service Rules provides that: “The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier.” In essence the Appellant did not hold office at the pleasure of the 1st Respondent and as such the Respondent could not retire the Respondent without cause until his retirement age per the Public Service Rules or upon disciplinary proceedings which must also follow the manner set out by the Public Service Rules.
Next is the issue of compulsory retirement, the trial Judge in his judgement come to the conclusion that;
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“each time I come across the phrase, “compulsory retirement” I wonder where this was obtained. This is because, when I read Exhibits B and 51 which were the 1st Defendant’s letters titled: Notice of Retirement and Staff Retirement respectively addressed to the plaintiff; the word compulsory retirement was never used. My modest understanding of labour law and employment jurisprudence, is that there seems to be a world of difference between Retirement per se and compulsory retirement. The latter, in labour law cases, imply a punitive or disciplinary decision to retire a civil or public service officer whilst the former, remains a decision which an employer can exercise without any issue as to discipline.”
I agree with the judge that compulsorily retirement connotes punitive measures as upheld by the Court of Appeal in NAWA VS. ATTORNEY GENERAL OF CROSS RIVER (2008) ALL FWLR (PT. 401) 807 where the Court stated that
“Compulsory retirement of a civil servant compels the inference that the civil servant is being subjected to disciplinary action for the commission of any crime or misconduct.”
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An appraisal of the Appellant’s notice of retirement shows no hint of disciplinary flavour to warrant observance of the Public Service Rules as it relates to discipline of Public Officers. However, the Appellant was not retired in accordance with the Public Service Rules.
I hold that the Appellant led cogent and verifiable evidence before the lower Court. This issue is resolved in favour of the Appellant.
ISSUE TWO
The next issue is whether the findings of the trial Judge that Exhibit D and D1 were hearsay was right and whether the trial Court considered extraneous matters in deciding the matter before him.
The trial Judge in his judgement with regards to Exhibit D and D1 stated:
“I have made certain remarks as regards the viability of the contents of Exhibits “D” and “Dl” which are at best, hearsay evidence not confirmed or corroborated by any independent evidence. DW1 when cross-examined on it, did not accept the reasons therein stated as the reasons why the Plaintiff was retired from the 1st Defendant’s service. He reiterated the same reason expressed in Exhibit “B”; i.e. that the Plaintiff’s “services are no longer required”.
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The error made by the Plaintiff, as I had earlier remarked, was his failure not to have subpoenaed the 1st Defendant’s- chairman to be examined on the contents of Exhibits “D” and D1″ in order to link the allegations there with the unexpressed reasons in Exhibit in “B’`.. I am afraid, that in so far as the contents of Exhibit “D” and ‘D1″ are hearsay evidence of what the 1st Defendant’s Chairman allegedly told the press, they cannot be used to reconstruct the Plaintiff’s cause of action which had arisen as far back 23/3/07 when Exhibit “B” titled.. “Notice of Retirement” was addressed to the Plaintiff (Page 469 – 470 Records of Proceedings).
When this case was instituted the Appellant relied on Exhibit B the notice of retirement letter to institute this action. The letter reads thus “the NDLEA Governing Board, at its meeting held on Friday, 23rd March, 2007, has decided that you be retired with immediate effect as your services is no longer needed.” Exhibits D and D1 on the other hand seek to change the reason for retirement to allegations of tampering with exhibits which in turn caused the Appellant to be compulsorily retired as a punitive measure.
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Per Section 131 of the Evidence Act 2011. It is settled law that he who asserts must prove. See SOKWO VS. KPONGBO (2008) NWLR (PT. 1086) 346 S.C. In this case, the Appellant who alleged that the contents of Exhibit D and DI are actually the reason for his retirement and not the reasons stated in Exhibit B must adduce sufficient evidence to establish same in order to shift that burden of proof. See OMOTOSHO VS. B.O.N. LTD (2006) 9 NWLR (PT. 986) 573 where Ogunwumiju JCA held:
“the law is that the burden of proof rests on the person who asserts a fact… it is fixed at the beginning by the pleadings and rests on the party asserting an affirmation… The burden of proof shifts when evidence given by one party gives rise to a presumption favourable to it and unless rebutted satisfied the Court that the fact sought to be proved is established…”
The question to then answer is did the Appellant in this case by the evidence adduced discharge this burden of proof? The trial judge answered this question in the negative as he held that Exhibit D and D1 which were newspaper publications allegedly made by the 1st
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Respondent’s Chairman are at best hearsay evidence. This he explained is because the Appellant did not summon the 1st Defendant’s chairman to be examined and cross-examined, or in the alternative deliver interrogatories on the Defendants in relation to the publications. As the answer to the interrogatories or evidence given by the 1st Defendant’s Chairman would have taken the Exhibits D and D1 out of hearsay evidence.
The law is trite that when evidence is given by a witness concerning a statement made to him by a person who is not himself and he seeks to thereby establish that such statement is true then that statement is hearsay. Documentary hearsay evidence on the other hand arises when a person who is not the author or signatory or privy to a document seeks to prove its contents by oral or secondary evidence. Nonetheless, exceptions exist to documentary hearsay evidence captured in Sections 25, 33, 39, 41, 55 – 58 and 222 (2) of the Evidence Act.
The Court of Appeal in NZE JEREMIAH OSIGWELEM VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2010) LPELR – 4657 CA Per Owoade JCA held that;
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“The presumption of authenticity of a document including Newspaper under Section 116 of the Evidence Act does not preclude the proof of the content of such a document. The content of a document can only be proved by its maker and/or a person who has personal knowledge of the content of such a document. The inability of a party to call the maker of a document or someone who has personal knowledge of the content of the document as in the instant case renders the content of that document to be a specie of documentary hearsay evidence which is generally inadmissible.”
I have read through the records of proceedings at the lower Court and I am in complete agreement with the lower Court Judge that the Appellant did not prove the contents of Exhibit D and D1 by calling its maker or person who has personal knowledge of the content to give evidence as such the Exhibits are hearsay. The Exhibits also do not fall under the exception of documentary hearsay evidence outline above. The fact that the 1st Respondent did not challenge the content of the Exhibit also does not take the evidence from the realm of hearsay as it has been held by the Supreme Court in AYENI VS. STATE (2016) 12 NWLR (PT. 1525) 51 that:
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“where the evidence adduced before the trial Court is unchallenged and uncontradicted, a trial Court still has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim.”
This means that the trial Court was right in evaluating the exhibits and deeming them hearsay evidence.
Finally, to the issue of whether the Court was right when it considered extraneous matters in deciding with the Appellant’s retirement. The law is trite that “a trial Court must not base its decision on speculation and extraneous matters not supported by the evidence before the Court as this will occasion miscarriage of justice.” In other words, the Court’s findings must be supported by concrete and real evidence and not speculation as held by the Court in ISAH VS. STATE (2007) NWLR (PT. 1049) 582. See also ONUOHA VS. STATE (2002) 1 NWLR (PT. 748) 406; OSHODIN VS. STATE (2001) 12 NWLR (PT. 726) 217; AGHOLOR VS. STATE (1990) 6 NWLR (PT. 155) 141.
I have read the trial judge’s judgement in its entirety and I find no fault in it. A judge is at liberty to draw inferences which are logical and reasonable
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deductions from evidence on record as these are different from speculations which are riot allowed by the law. See IKENTA BEST (RIG) VS. ATTORNEY-GENERAL, RIVERS STATE (2008) 6 MLR (PT. 1084) 612; SAVANNAH BANK OF NIGERIA PLC VS. CENTRAL BANK OF NIGERIA & 2 ORS (2009) 6 NWLR (PT. 1137) 237. The Supreme Court affirmed this reasoning in ADEDAYO VS. P.D.P. (2013) 17 NWLR (PT. 1382) 1 where Onnoghen JSC stated thus:
“However, in the process of deciding a matter or resolving an issue the judge is at liberty to make comments which is usually harmless and made by the way. Such comments or views or opinions are considered in law as obiter dictum or dicts- things said by the way. They do not constitute the decisions of the Courts which is usually referred to as the ratio decidendi- the reason for the decision. A Court is permitted by law to draw inferences from evidence on record such as documents, such inferences cannot be regarded as raising issues suo motu by the Court.”
In view of the above and after reading the Judgement of the lower Court, I believe the trial Judge painstakingly went through all the pleadings of the parties and made copious
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references to all the Exhibits, comparing the Appellant’s process to that of the respondent’s in the course of giving his judgment. It cannot be said that his reference to the Appellant’s employment was considering extraneous matters.
I resolve this issue in favour of the Respondents.
In sum, issue one is resolved in favour of the Appellant while issue 2 is resolved in favour of the Respondent. The Appeal therefore succeeds in part. The judgment of the lower Court in Suit No. FHC/ABJ/CS/408/2007 delivered on the 6th of day of May, 2011 is hereby set aside. In its place, reliefs number 1, 2, 3 and 4 of the Appellant’s claim are hereby granted while relief number 5 is dismissed as there is no basis for it. Appellant is entitled to costs which I assess at N50,000.00.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in draft, the leading judgment of my learned brother IDRIS JCA just delivered. I agree with his reasoning and conclusion. I abide by the Orders made therein, including the order as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
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Appearances:
A. Adedeji, Esq. with him, L. S. Mamman, Esq. For Appellant(s)
F. A Otoruntoba, Esq. with him, M. Efaruna, Esq. For Respondent(s)
Appearances
A. Adedeji, Esq. with him, L. S. Mamman, Esq. For Appellant
AND
F. A Otoruntoba, Esq. with him, M. Efaruna, Esq. For Respondent