Ajani Salau Omotosho & 2 Ors -VS- Independent National Electoral

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

16^TH DAY OF DECEMBER 2019 SUIT NO: NICN/LKJ/02/2018

BETWEEN

1. AJANI SALAU OMOTOSHO

2. BUSARI IDRIS NIYI

3. DANJUMA SANI OMALE��..��..CLAIMANTS

AND

INDEPENDENT NATIONAL ELECTORAL COMMISION ��.�.DEFENDANT.

REPRESENTATION:

JUDGMENT

The Claimants by way of Complaint dated and filed on 17^th January, 2018 commenced this action against the Defendant and sought for the reliefs as endorsed in the Complaint and Statement of Facts. The complaint was accompanied by statement of facts, list of witnesses, list of documents to be relied on and photocopies of documents to be relied on at the trial. The claims of the claimants are as follows:-
1. A DECLARATION that the Claimants are and still remain staff of the Defendant working at the Defendant�s Kogi State Office.
2. A DECLARATION that the decision of the Defendant to compulsorily retire the 1^st Claimant is null, unlawful without base and of no effect whatsoever.
3. A DECLARATION that the purported termination of employment/sack of the 2^nd and 3^rd Claimants is null, unlawful without base and of no effect whatsoever.
4. A DECLARATION that purported termination of employment/dismissal of the Claimants by the Defendant is null, unlawful wrongful and of no effect whatsoever.
5. A DECLARATION that the Claimants employment which is statutory can only be terminated in accordance with the recognized laws.
6. A DECLARATION that any decision taken by the Defendant upon the purported recommendation of its Appointment, Promotion and Disciplinary committee is ineffective as same is not in accordance with procedure and in violation of the principles of fair hearing and natural justice.
7. AN ORDER that the Claimants are and still and remain bonafide employee of the Defendant.
8. AN ORDER that the decision of the Defendant to compulsory retire the 1^st Claimant is null, unlawful without base and no effect whatsoever.
9. AN ORDER that the purported termination of employment/dismissal of the Claimants is null, unlawful wrongful and of no effect whatsoever.

x. (a) AN ORDER directing the Defendant to immediately allow the 1^st Claimant work in his office as its employee, his purported compulsory retirement being null, without base and contrary to law.

(b) AN ORDER directing the Defendant to immediately allow the 2^nd and 3^rd Claimants resume work in their respective offices as its employees, their appointment having not been terminated in accordance with law.

Alternatively

(c) AN ORDER mandating the Defendant to pay the Claimants the sum of N80,000,000.00 (Eighty Million Naira) each as damages for wrongly termination of employment.

xi. AN ORDER directing the Defendant to pay the Claimants all salaries, emoluments, allowances and every monetary entitlement accrued to the Claimants from 17^th January, 2018 (the date of filling this suit) till the date judgment is delivered in this suit.

xii. AN ORDER directing the Defendant to pay the Claimant 10% interest on the accrued sum from the Day of Judgment till day of liquidation of the judgment sum.

xiii. Cost of litigation of 5,000,000.00 (Five Million Naira Only).

It is pertinent to point out here that this matter started de novo after the Judge handling the action was transferred to another division. The Defendant filed its Statement of Defence dated 8^thJune, 2018 and thereafter, the matter went on trial.
All the Claimants in this suit testified in proof of their respective cases. They also tendered documents which were admitted in evidence and marked as exhibits.
The Defendant called only one witness in the defence of the case. The witness tendered documents which were admitted in evidence and marked as exhibits accordingly. At the end of the defence, the Defendant urged the Honourable Court to visit locus in quo for inspection of DDC Machine referred to by the witness of the defendant in thedefence put forward before the Court.
The court visited locus in quo on the 3^rd May, 2019 wherein one Mrs. Abimbola Oladunjoye, gave evidence as DW2, and the court inspected the DDC Machines. Thereafter, the court adjourned the matter for adoption of written address.
The 1^stclaimant who testified as CW1, after taking oath, adopted his witness statement on oath as his testimony in this case. CW1, stated that he became employee of the Defendant vide letter of employment dated 10^thNovember, 1992 as a Research/Logistics Officer I on salary grade 09/06 and rose to become a Deputy Director on 30^th December 2014. CW1, further stated that since his appointment with the Defendant he had always conducted himself in an appropriate manner much to the admiration and content of the Defendant that not only earned him promotions in the office but also saw several sensitive task vested on him which he always performeddiligently.
However, on 24^th May, 2017 and while going on about his normal official duties he received a query letter from the Defendant through the Resident Electoral Commissioner of Kogi State. The subject of the query was based on a picture that was trending on the internet purporting to show the 2^nd and 3^rd Claimant in a group as part of the Continuing Voters Registration (CVR) exercise capturing a prominent figure in a center not approved by the Defendant. In response to the query he clearly stated that he know nothing about the picture trending on the internet and denied knowledge about the purported capturing of any prominent person or indeed any person in an unapprovedcenter.
CW1, also stated that immediately the query was issued and before his response to the query letter, the Defendant in a Press Release had already decided that CW1, CW2 and CW3 had committed a wrong and disciplinary actions were to be taken against them. CW1, stated that although, he sawthe picture trending on the internet purporting to show the 2^nd and 3^rdClaimants with the Governor of Kogi State, Alh. Yahaya Bello performing some exercise but he however states that the picture is not real.
CW1, stated that after they appeared before the Appointment, Promotion and Disciplinary Committee in line with letter Ref:- INEC/IHQ/PE:366/VOL1/14 dated 24^th July, 2017, the Defendant in a letter dated 6^th November, 2017 stated that his response to their query had been considered but that they are giving him ultimatum of 72 hours to explain further in writing why disciplinary action ought not to be taken againsthim.CW1, stated that there was no basis for the 6^thNovember, 2017 query having appeared before an investigative panel in Lokoja, Kogi State and the Federal Capital Territory, Abuja and in absence of incriminating evidence againsthim.
CW1, stated that he responded to the 6^th November 2017 letter of query from the Defendant, reiterating his innocence on the allegation and stating unequivocally that he knowsnothing about the purported unauthorized registration. CW1, also stated that believing that the issue had been laid to rest, he continued with his normal duties until on 15^thDecember, 2017 when his attention was drawn to various online and print media reports including National News Papers, particularly the Daily SUN News Paper of Friday 15^thMay, 2017at page 8, stating that �The Independence National Electoral Commission (INEC) has indicted Governor of Kogi State, Yahaya Bello, over double registration in its on-going Continuous Voter Registration (CVR). Bello currently enjoys immunity from prosecution, in accordance with the 1999Constitution, as amended. In connection with the governor�s action, the commission has sacked three of its staff. As of fact,the report was also contained in the INEC Bulletin for 15^th November, 2017 and the INEC WhatsApp Group Nationwide.
It was stated that despite the media publication, CW1, continue to attend to his official duties until the 4^th day of January, 2018, when he received a Notification letter of compulsory retirement from service of the Defendant. According to CW1, the entire transaction leading up to the purported termination of his employment by the Defendant was in flagrant breach of fair hearing and contrary to the terms and conditions of service. The alleged ground upon which his employment was purportedlyterminated was non-existent, not investigated and based on a whim. The purported process of inquiry conducted by the Defendant which spanned the period of May, 2017 to 15^thDecember, 2017 was without base and contrary to the terms and conditions of service.CW1, stated that being a senior staff of the Defendant, he did not appear before the appropriate body for the alleged disciplinary hearing neither was the action taken against him by the Defendant based on the recommendation of the appropriate body. Being a senior staff of the Defendant CW1 was entitled to the following monthly salaries: N391,874,42.That CW1, has not reached retirement age he was entitled to the above considerations for the remaining months he has in service and also entitled to pension thereafter.
Under cross examination, CW1 stated his name as Ajani Salau Omotosho, that he was a Deputy Director his duties include supervision of Okene Local Government. That there was no report of double registration under Okene Local Government. That he appeared before the disciplinary panel both in Lokoja Kogi State and Abuja. What transpired is contained in the report. It was confirmed no double registration. Thus why I am challenging it in court.

THE TESTIMONY OF 2^ND CLAIMANT.

The 2^nd claimant testified as CW2. He adopted his witness statement on oath as his evidence in this case. He also tendered exhibits. CW2, stated that he is one of the employees of the Defendant. He worked at the VR & ICT Department, Kogi State INEC Headquarters, Lokoja, Kogi State. He became employee of the Defendant vide letter of employment dated 20^th September, 2006, as an Engineer II on grade level 08 and his appointment was confirmed vide letter dated 14^thSeptember, 2009. He was promoted by the DefendantOn 24^th December, 2014from the rank of Engineer I on Grade 09 to the rank of Senior Engineer (S/ENGR)on Grade level 10.
CW2, stated that on 24^th May, 2017 and while going about his normal official duties in his office, he received a query letter from the Defendant through the Resident Electoral Commissioner of Kogi State. The subject of the query was based on a picture that was trending on the internet purporting to showCW2 and CW3 in a group as part of the Continuing Voters Registration (CVR) exercise capturing a prominent figure in a center not approved by the Defendant. CW2, stated that he responded to the query stating clearly that he was not aware of any picture trending on the internet and that he had no knowledge about the purported capturing of any prominent person or indeed any person in an unapproved center. CW2, stated that he discovered that immediately the query was issued and before his response to the query letter, the Defendant in a Press Release had already decided that he had committed a wrong by registering the Governor of Kogi State on 23^rd may, 2017 during the Continuous Voters Registration (CVR) Exercise and that disciplinary actions were to be taken against him. Although, he saw the picture trending on the internet purporting to show him and CW3 with the Governor of Kogi State, Alh. Yahaya Bello performing some exercise but he however, stated categorically that the picture is not real as he was never with the Governor at that time. CW2, stated that the Defendant in a letter dated 6^th November, 2017 stated that his response to the query had been considered and that he was given an ultimatum of 72 hours to explain further in writing why disciplinary action ought not to be taken against him. CW2, stated that there was no basis for the 6^th November, 2017 query having appeared before an investigative panel in Lokoja, Kogi State and the Federal Capital Territory, Abuja and in absence of incriminating evidence against him.
CW2, stated that believing that the issue had been laid to rest, he continued with his normal official duties until on 15^th December, 2017 when his attention was drawn to various online and print media reports including National News Papers, particularly the Daily SUN News Paper of Friday 15^th May, 2017 at page 8, stating that �The Independence National Electoral Commission (INEC) has indicted Governor of Kogi State, Yahaya Bello, over double registration in its on-going Continuous Voter Registration (CVR). Bello currently enjoys immunity from prosecution, in accordance with the 1999 Constitution, as amended. In connection with the governor�s action, the commission has sacked three of its staff�. Further, the report was also contained in the INEC Bulletin for 15^th November, 2017 and the INEC WhatsApp Group Nationwide.
CW2, stated that despite the media publications, he continue to attend to all his official duties until the 4^th day of January, 2018 when he received a dismissal letter service of the Defendant with Ref:- No:- HQ/KG./C.172/VIOL I/49 dated 22^ndDecember, 2017.
CW2, stated that the entire transaction leading up to the purported termination of his employment by the Defendant was in flagrant breach of fair hearing and contrary to the terms and conditions of service. The alleged ground upon which his employment was purportedly terminated was non-existing, not investigated and based on a whim. The purported process of inquiry conducted by the Defendant which spanned the period of May, 2017 to 15^th December, 2017 was without base and contrary to the terms and conditions of his service being a public servant.
CW2, stated that he did not at any time register the Governor of Kogi State Alhaji Yahaya Bello during the Continuous Voter Registration (CVR) exercise in Kogi State or any person in an unauthorized center.The alleged photograph of him and CW3,was photo shopped and there was no evidence provided before the Appointment, Promotion and Disciplinary Committee (APDC), to the contrary.
CW2, stated that his Monthly salary is the sum of N142,000.00. That having not reached retirement age,he will be entitled to salary in the next 14 years remaining for his service.
DW2, testified under cross examination to the effect that before his dismissal from service he was head of unit. He was aware of pictures through query, he saw somebody that looks like him, when he appeared at the panel he told them he was not a registration officer. He was in the headquarters in ICT. There was ICT analyst, there was system analyst and his duty is to rectify problem. There was no time machine was brought even if it was brought it is to HOD. Most of the issues with machines are battery. He was not aware of any problem because he was not in custody of the machine. He cannot temper. He was a senior staff not a management staff.

THE TESTIMONY OF 3^RD CLAIMANT.

The 3^rd claimant testified as CW3. After taking oath he adopted his witness statement on oath as his evidence and tendered exhibits. CW3, stated that he is one of the employees of the defendant. He worked as administrative officer 1, Kogi State Headquarters of the defendant at Lokoja. He became employee of the Defendant vide letter of employment dated 8^thJanuary, 2013 as an Admin. Officer II on grade level 08. His appointment was confirmed vide letter dated 22^ndJuly, 2015. He was promoted by the Defendant On 22^ndDecember, 2016, from the rank of Administration Officer 11 (AO II)on GL.08 to the rank of Administration Officer 1 (AO I) on GL.09. On 24^th May, 2017 and while going about his normal official duties inhis office, he received a query letter from the Defendant through the Resident Electoral Commissioner of Kogi State. The query was based on a picture that was trending on the internet purporting to show him and CW3, in a group as part of the Continuing Voters Registration (CVR) exercise capturing a prominent figure in a center not approved by the Defendant. He responded to the query stating clearly that he was not aware of any picture trending on the internet and that he had not captured any prominent person or indeed any person in an unapproved center. In a press release the defendant had decided that he committed a wrong by registering the Governor of Kogi State Alh. Yahaya Bello on 23^rd may, 2017 during the Continuous Voters Registration (CVR) Exercise and that disciplinary actions were to be taken against him. He stated that the picture was not real it was photo shopped.
CW 3, stated further that vide letter dated 6^th November, 2017 it was stated that his responses to the query had been considered and that he is given an ultimatum of 72 hours to explain further in writing why disciplinary action ought not to be taken against him. Having appeared before an investigation panel in Lokoja Kogi State and the Federal Capital Territory, Abuja, there was no need for 6/11/17 query. He responded to the query of 6/11/17 reiterating his innocence.
With the belief that the issue had been laid to rest, he continued with his normal official duties until on 15^th December, 2017 when his attention was drawn to various online and print media reports including National News Papers, particularly the Daily SUN News Paper of Friday 15^th May, 2017 at page 8, starting that �The Independence National Electoral Commission (INEC) has indicted Governor of Kogi State, Yahaya Bello, over double registration in its on-going Continuous Voter Registration (CVR). Bello currently enjoys immunity from prosecution, in accordance with the 1999 Constitution, as amended. In connection with the governor�s action, the commission has sacked three of its staff�. Further, the report was also contained in the INEC Bulletin for 15^th November, 2017 and the INEC whatsApp Group Nationwide.
That despite the media publications, he continue to attend to all his official duties until the 4^th day of January, 2018 when a dismissal letter with Ref:- No:- HQ/KG./C.291/VOL I/49 dated 22^nd December, 2017 was handed over to him.The entire transaction leading up to the purported termination of my employment by the Defendant was in flagrant breach of fair hearing and contrary to the terms and conditions of service. The alleged ground upon which my employment was purportedly terminated was non-existent, not investigated and based on a whim. The purported process of inquiry conducted by the Defendant which spanned the period of May, 2017 to 15^th December, 2017 was without base and contrary to the terms and conditions of his service being a public servant. He did not register at any time register the Governor of Kogi State Alhaji Yahaya Bello during the Continuous Voter Registration (CVR) exercise in Kogi State or any person in an unauthorized center.
As a senior staff of the Defendant, he did not appear before the appropriate body for the alleged disciplinary hearing neither was the action taken against him by the Defendant based on the recommendation of the appropriate body. His Monthly salary is the sum of N115,000.00. He will be entitled to salary for the next 31 year when he will reach retirement age.
In giving evidence under cross examination DW3, stated that he was a registration officer before his dismissal his duties include registration of voters and transfer of voters and transfer of voters. It was based on allegation he was called to testify. He did not have evidence of photo shopping. If machine breaks down he won�t be able to rectify machine. He does not know how they photo shop. He know double registration is at variance.

THE DEFENDANT CASE

One witness testified for the defendant at the trial and another witness at locus in quo.
Mr. Samuel Abah,testified as DW1. DW1, after adopting his witness statement on oath tendered exhibits. DW1, stated that the claimants were employees of the defendant until the 1^stClaimant�swas compulsory retired from service via a letter dated 14^th December 2017 and 2^nd and 3^rd claimant dismissalvia letters dated 22^nd December 2017.
DW1, stated that in furtherance of its constitutional duty of conducting election, its organized a Continuous Voters Registration (CVR) exercise wherein centers were designed in each of the 774 Local Government Areas of Nigeria and DDC machines allocated to each center for CVR exercise as well as INEC Okene office being the designed center for the CVR.
DW1, stated that based on the investigation panel report, Appointment, Promotions and Discipline Committee (APDC), Fact Finding panel report and Appointment, Promotions and Discipline Committee (APDC)Discipline reports the 1^stClaimant was found negligent in the performance of his duties and the 2^nd and 3^rd Claimants were found Guilty of committing serious acts of misconduct during the recent Continuous Voting Registration (CVR).
According to DW1, the defendant�sattention was drawn to news that it registered the Governor of Kogi State (Governor Yahaya Bello) at the Government House Lokoja for the second time during the Continuous Voters Registration (CVR) exercise sometime in May, 2017.That Internet based newspapers published the news of the said registration and the news of the same registration is also all over the print national dailies across the country. Consequently, query letters dated 24^th of May, 2017 were issued against the Claimantsand a three-man panel was set up to investigate the matter at Kogi State INEC office. The three � man panel was set up to investigate the publication all over the internet and print media showing the 2^nd and 3^rd Claimantregistering the Governor of Kogi Stateat Government House which was acknowledgment by the Governor through his Director General Media and Publicity to the Governor, in a statement issued to Premium Times, (Internet based newspaper). The panel also investigated the failure of 1^st Claimant to ensure proper supervision and protection of the materials/machines used for the said registration during the CVR. That it was on the strength of the press statement issued by the Director-General, media and Publicity to the Kogi State Governor, a Press Release was issued on the 25^th May 2017 where the Commission pledged to investigate and take disciplinary actions against the involved staff. Consequently, the claimants were invited and appeared before the three-man panel at the defendant�s Lokoja office and made their various representations, whereby the panel report was submitted to the Kogi State INEC Administration Secretary.Thereafter the Administration Secretary forwarded the report of the panel of investigation to the Secretaryof the Commission, upon receipt of the recommendation of the report, the Commissioncautiously constituted the APDC fact-finding panel to further investigate the matter and report to the commission. That based on the recommendation of the APDC fact � finding panel, letters of query from the Headquarters were issued against the 3 (three) staffs. It is in compliance with the staff conditions of service that the query letters of the 6^th of November 2017 was written to the 3 (three) staffs.
The response of the 1^st Claimant dated 15^th November 2017, the response of 2^nd and 3^rdClaimants dated 9^thNovember 2017 and one other staff being unsatisfactory, were then invited to appear before Appointment, Promotions and Discipline Committee. That the 2^nd and 3^rd claimant together with one other staff appeared and make representation before the APDC and the committee submitted its report and recommendation to the commission. That the defendant at its meeting of the 14^th day of December 2017 approved the compulsory retirement of the 1^st Claimant, dismissal of the 2^ndand 3^rd Claimants.That it is the defendant�s policy to grant Press Release once a decision is taken to prevent information from being leaked, thus the defendant reached a decision on the 14^th of December 2017 and immediately caused same to be published in the Bulletin for the 15^th of December 2017.
That the investigation and the Disciplinary proceedings were done in accordancewith the principle of fair hearing and the INEC staff conditions of service.The decision of the summary dismissal of the 2^nd and 3^rd Claimants and retirement of the 1^st Claimant was based on the evidence and report of various Committees set up to investigate the matter which was conducted in accordance with the principle of fair hearing and INEC conditions of service. That the Claimants committed serious set of misconduct. The Claimant appeared and made representation before the appropriate Committee that is now called APDC (Appointment, Promotion and Discipline Committee) and the defendant took a decision based on the Committee�s report and recommendation. That the 1^st Claimant was retiredcompulsorily and the 2^nd and 3^rdClaimants weresummarily dismissed after following the due process set out by the conditions of service.
Under cross-examination, DW1, stated that,new chairman renamed the disciplinary committee to Appointment, Promotion and discipline committee. The name change was before filing of defence. The only document frontloaded is exhibit G. He does not know how exhibit F was printed. He was not part of the committee page 10 of exhibit F. He does not know who posted pictures. He has been working for 31 years. He does not know how DDC machine works. It is not true that, all what he has come to say is what he was instructed to say. Continues voter registration is a process commission register voters who turns 18 years or those who have not registered. Every Department has its own role. Human resource has its own role not to register. He stands by his paragraph 21. The condition of service tendered is the one in operation when they were dismissed.

EVIDENCE OF WITNESS AT LOCUS IN QUO

The witness at locus inquo testified by stating her name to be Abimbola Oladujuye a member of staff of the Defendant in ICT Department. She testified that the DDC machine is one of the machine prepared and used for Okene Local Government registrationin Kogi State during 2017 continuous voter registrationexercise in Kogi State. Sometime in June 2017 two lap tops were brought to ICT Department and there was request to confirm if those machines were part of the machines deployed to Okene Local government for the CVR exercise. the two machines were checked and confirmed only one of the machines was in the record as one of those used for CVR exercisein Okene the machine has same registration number and the other does not have registration number a report was written to the management that only one of the machine was certified deployed to Okeneon this discovery the department requested the Kogi state office to supply list of DDC machines being used for CVR, upon receipt of the list it was discovered that one machine was missing. The chairman of the defendant directed the Director ICT to proceed to Lokoja to look for the missing machineon getting to Lokoja the machine was not found but on their return to Abuja 2 days after the machine was found and brought to the Headquarters. Upon examination it was discovered that the machine was actuallythe 2^ndmachine deployed to Okene for CRV exercise, but no data was found 0n the machine. Investigation on the hard drive shows that it was replaced.
Under cross examination the witness at locus testified that she knows Mr. Lawal but may not know whether Mr. Lawal is one of those invited by Human Resources Department. The machine was in the custody of Head of ICT Lokoja. In the course of investigation she did confirm who is in custody. The HOD ICT Lokoja did not tell her that the hard disk was changed. HOD ICT Lokoja being in custody of the machine is the best to give evidence on the machine.

THE SUBMISSION OF THE DEFENDANT.

The defendant submitted lone issue for determination, to wit:

��Whether the Disciplinary measures metted against the Claimants wasin accordance with the Defendant�s condition of service and fair hearing.��

In arguing the lone issue for determination counsel for the defendant submitted that the disciplinary measures metted against the Claimants was in the compliance with the Defendant�s Condition of Service and same equally guarantees the right to fair hearing of any erring employee. Counsel contended that the law is trite that an employer always reserved the right to terminate the employment of his or her employee at any time so wish.However, was quick to add that in employment with statutory flavour as in the instant case, termination or dismissal must be in accordance with the statutory provision that govern the said employment. This position was succinctly reiterated by the Court in F.I.R.S. VS. LEWUS SUNDAY MICHAEL (2014) ALL FWLR PT 735 P 366 R6, where the courtheld thus
1. �Employmentwith statutory flavour is imbued with statutory flavour in the sense that it is protected by statutes or laid down regulations made to govern its procedure for employment and discipline of an erring employee. An employee under statutoryflavour is invested with a legal status, by the statute over and above that of an ordinary servant and he cannot be fired except in consonance with the provisions of appliance rules. Where the employer is a statutory body, it must act according to the dictate and sprit of the law�.�
Counsel contended that in the matter of discipline of an erring staff, the procedure laid down by the applicable laws, regulations or condition of service must be fully complied with as any decision affecting the right of an employee in contravention of the said laid down rules or condition of service shall be declared null and void in an appropriate proceeding. This position was aptly captured by the Supreme Court in OLANIYAN VS. UNIVERSITY OF LAGOS. (1985) 2 NWLR (Pt. 9) 509 where the court held thus:

� In matters of termination or discipline under a contract with statutory flavour, the procedure laid down in the applicable statute or regulations made thereunder must be religiously followed as any breach would render the exercise null and void�

Counsel also placed reliance on the case of S.P.D.C. (NIG) LTD VS. ADDICO (2016) ALL FWLR PT 816. 445 R2 where the court held thus:

�Where a contract of service enjoys statutory flavour, an employer wishing to terminate the contract must be meticulous in complying with the procedure set out in the relevant statute or rules thereunder�.�

Counsel contended that in view of the above position of the law as held by the courts, the questions that calls for an answer by this Honourable Court are:
��Did the Defendant religiouslyfollowed the laid down rules as contained in its Condition of Service before dismissing the 2^nd and 3^rdClaimant while compulsorily retired the 1^st Claimant?
Whether the Honorable Court is empowered to question and/or interfere with the decision of the Investigation Panel and the Disciplinary Committee set up by the Defendant.
Was the Claimants given opportunity to appear and make representation before the various Panel and committee set up by the Defendant?
Counsel in answering the first question above, submitted that recourse must first be made to the Defendant�s condition of service, which same was admitted as exhibit CW2H at the trial. It isinstructive to note that the said exhibit CW2H was made pursuant to the provision of Electoral Act 2010 (As Amended) clearly spelt out procedure, which the Defendant must follow before taking any disciplinary action against an erring staff.It is useful to further note that the Defendant is vested with powers under Section 3.01, in page 14 of exhibit CW2H to discipline an erring employee for conduct considered detrimental to the administration, image and general interest of the Commission. Again, in exercising its disciplinary power against an erring employee, the Defendant is require to comply with the provisions of Section 3.10 and Section 3.19 of exhibit CW2H (Staff Condition of Service). Section 3.10 titled Disciplinarymeasures read thus:

�In all cases, the fault of the employee shall be brought to his notice through the issuance of a query before final disciplinary action.�

It is argued by counsel that Juxtaposingthe above provision of exhibit CW2H with evidenceadduced at the trial, one will safely answer the first question raised above in the affirmative.The defendant rightly complied with the said provision by issuing the claimants with Query Letters disclosing the allegations against them. The respective Query Letters issued to the claimants dated 24^th May, 2017 were admitted evidence.
Counsel further argued that in Compliance with the provision of Section 3.19 of the Defendant�sStaff Condition of Service, the Defendant Constituted an Investigation Panel to investigate the allegations and publications made against the Commission as contained in exhibit A1-3 and exhibit B1-2. (Copies of Newspaper publications). It is germane to note that all the Claimants appeared and made representation before the said Investigation Panel. The Claimants in Paragraph 14 of their Statement of Claim aptly admitted this fact. Again, my lord will further note that it was sequel to the Findings and Recommendation of the Investigative Panel as contained in Exhibit F and CW1H,which the Kogi State INEC Administrative Secretary forwarded to the Secretary of the Defendant. Upon receipt of the Recommendation of the Investigation Panel Report, thedefendant CAUTIOUSLY constituted APDC Fact Finding Panel to further investigate the matter and report to the Defendant, which recommend issuance of further queries to the claimants.
Counsel contended that it is worthy at this juncture to correct the flawed position of the Claimantsregarding the status of APDC (Appointment, Promotion and Discipline Committee). According to counsel APDC was established sequel to the provisions of Article 12 of the INECRules of Procedure. The said Rules of Procedure was admitted in evidence as exhibit G. APDC (Appointment, Promotion and Discipline Committee) is at the moment among the Standing Committees of the Defendants as can be gleaned in Article 12 Sub 12.1 of the INEC Rules of Procedure and also Article 27.1.0 which replaced the Standing Committee mentioned in the Staff Condition of Service i.e Senior Staff Welfareand Disciplinary Committee (SSEC), counsel urged the court to discountenance the position of the Claimant regarding the status of APDC. In support of this position counsel placed reliance on Article 27.1.0 of the INEC Rules of Procedure which read thus:

�The Committee exercised oversight on Senior Staff Personal/Human Recourses Matter, including vacancies, recruitment of staff, assessment of Senior Staff for promotion and disciples, as well as all other matters related to senior staff establishment and discipline. It receives report about staff misconducts, investigated them and recommendsdisciplinary measures to the commission in accordance with existingregulations. It also receivesappeals from disciplined staff. In addition, the Committee advises the Commissionon regulations for the discipline of Senior Staff. The Committee also oversight responsibilities on the Human ResourceManagementDepartment.�

It is contended by counsel that the Defendanthaving been dissatisfied with the response of the claimants as contained in exhibit CW1F and CW3E, invited the Claimants to appear before the APDC (Appointment, Promotion and Discipline Committee). The said invitation was made vide exhibit E1-3. It is abundantly in evidence that all the Claimants appeared before the said Committee and made representation. The Defendant acted on the Recommendation of the APDC as contained in page 44 of exhibit CW1H to dismiss the 2^nd and 3^rd Claimants from service and compulsorily retired the 1^st Claimant.
Counsel argued that the Defendant having complied with the laid down procedure in disciplining the Claimants, it follow therefore that the disciplinary the Claimants,it follow therefore that the disciplinary measures taken against the Claimantis lawful and urged the court to so hold. The law is settledthat it is the Condition of Service that determines whether the termination of an employee�s employment was done following due process. In this case, the Defendant had strictly complied with the laid down rules as contained in the Staff Condition of Service. On the need for the Defendant to comply strictly with the rule as contained in the Staff Condition of Service, counsel placed reliance on the case of FMC,IDO EKITI VS KOLAWALE (2012) ALL FWLR PT 653 PG. 2001 R. 3.
Counsel also urged the court to in view of the evidence adducted before the Honorable Court, to hold that the Defendant strictly followed the laid down rules as contained in its Condition of Service before dismissing the 2^nd and 3^rd Defendant while compulsorily retired the 1^st Defendant? We urge the court to so hold.
Counsel in answering the 2^ndquestion raised above i.e whether the Honourable Court is empowered to question and/or interferes with the decision of the Investigation Panel and the DisciplinaryCommittee set by the Defendant, it is submitted that the acts of the Claimants as found out by Investigation Panels, APDC Fact Finding Panel and APDC Disciplinary Committee amount to serious misconduct. The Claimantswere all found wanting for wrong doing in the course of discharging their duty. To be specific, the 1^st Claimant was compulsorily retired from service in line with the provision of section 3.17 (a-c) of the Staff Condition of Service after he was found negligent in the performance of his duty as Electoral Officer of Okene Local Government Council. The 2^nd and 3^rdClaimant was equally found of serious misconduct during the Continuous Voter Registrationexercise and their employment was terminated in line with the provision of Section 3.18 (b)(ii) of the INEC StaffCondition of Service.
It is also argued by counsel that where an Investigation or Disciplinary Committee set up to investigate any act of misconduct as defined in the Staff Condition of Service and the said Committee eventually find the erring staff guilty of misconduct, it is not the duty of the Court to inquire into the veracity of the Reports of the Panel or committee set up with regard to the act committed by the erring staff. This is because the law is well settled that those Panel and Committee acted as a judicial or quasi-judicial body to arrive at their respective decisions and recommendations. The duty of the court is to ensure that the Committee/Panel complied with the laid down rules and that the erring staff was accorded fair hearing as required by the law. This position was equally re-echoed in the case of NEPA VS EL-FANDI (1986) 3NWLR (PT.32) PG 884 AT 898 where the court held thus:

�The High Court is not meant to be another forum for trial of the plaintiff. The Panel may be wrong in their belief, it is certainly not the function of the court to set aside the decision of the panel on legal technicalities.�

Counsel urged the court to be guided by the above decision of NEPA VS EL FANDI and the various Findings and Recommendation of the Panels and Committee set up by the Defendant vis-�-vis the provisions of Section 3.03 and the Definition of misconduct as contained in the Defendant Staff Condition of Service and resolve the second question in the affirmative.
In answering the 3^rd question as to whether the Claimants were given opportunity to appear and make representation before the various Panel and committee set up by the Defendant,counsel for the defendant contended that the Claimant appeared before the Paneland Disciplinary Committee thus, the Defendanthadcomplied with the rules of fair hearing and natural justice before dismissing the Claimant from its service. On need for an employer to comply with the rules of fairhearing and natural justice, the Supreme Recommendation of the investigativePanel and APDC Fact Finding Panel issued another Query Letter to the Claimants. The Claimant further respondedto the said Query Letter. The Defendant been dissatisfied with the responses of the Claimant as contained inexhibit D1-6, invited the Claimants vide exhibit E1-3 to appear before the APDC Disciplinary Committee. It is instructive to point out that the content of exhibit E1-3 especially paragraph 3 Speaks volume about the option given to the claimantswith regard calling witnesses and presentingevidence in their defence which is incompliance with the rule of natural justice. It is the contention of counsel that the Claimants cannot complain of breach of fair hearing as they were given all the opportunity to make representation oral and written, before the disciplinary action was taken against them. Counsel urged the court to so hold.
In concluding his submission counsel urged the court to be guided by the judicial authorities cited, the provision of exhibit CW2H (Staff Condition of Service) and the exhibits tendered at the trial and hold as follows:
1. That the dismissal of the 2^nd and 3^rdClaimant from the services of the Defendant and the compulsory retirement of the 1^st Claimant was done in strict compliance with the laid down rules as contained in the defendant�s Staff Condition of Service.
2. That the Defendant adhered to the rules of fair hearing and natural justice by according the Claimants opportunity to make representation both oral and written before the panels and Disciplinary Committee set up the Defendant.
3. That the acts of the Claimants as found out by the Investigative Panel APDC Facts Finding Panel and APDC amount to misconduct and this Honourable Court cannot interfere into the veracity of the Report of those Panels and committee.
4. That the Claimants are not entitled to all the reliefs sought since the disciplinary measure metted against them is lawful and in accordance with the provisions of INECStaff Condition of Service.

THE SUBMISSION OF THE CLAIMANTS.

The claimants formulated four issues for determination,. They are:-
1. ��Whether the compulsory retirement of the 1^st Claimant by the Defendant was not in violation of laid down procedure hence, unlawful.��
2. ��Whether theDismissal of the 2^nd and 3^rd Claimants by the Defendant was not in violation of laid down procedure hence, unlawful.��
3. ��Whether the allegation of misconduct against the Claimants was establishment to warrant the punishment meted out to them.��
4. ��Whether the Claimants are not entitled to all the reliefs sought.��
  1. The counsel for the Claimantsargued all the issues formulated together.
  2. Counsel began his submission by contending that by the pleadings before this court, the Claimantsare statutory employees of the Defendant whose condition of service is governed by laid down procedures failure to comply with which renders any dismissal, termination and/or compulsory retirement a nullity. In support of this contention counsel placed reliance on the case of OLORUNTOBA-OLU & ORS. V. ABDUL-RAHEEM & ORS (2009) LPELR 2596 (SC), where the Apex Court held Per O. O. Adekeye, J.S.C as follows:
  3. Counsel contended that when an office or employment has a statutory flavour in the sense that its condition of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special statute over and above the ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statute or regulation must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings. In support of this contention counsel relied on the cases of OSISANYA V. AFRIBANK NIGERIA PLC. (2007) LPELR � 2809 (SC), CHIEFTAMUNOEMIDONIBOYE-OBU V. NIGERIA NATIONAL PETROLEUM CORPORATION (2003) LPELR-1426 (SC).
  4. According to counsel it is not in doubt that there exist the Independent National Electoral Commission Staff Conditions of Service intended to protect the employment of the claimant and indeed, all staff of the Defendant.It is also not in doubt that the provisions of this Conditions of Service must be strictly adhered to in order that an act or omission of the Defendant can be deemed appropriate. In other words, the provisions of the Conditions of Service of the Defendant are mandatory. This is evidence in the pleadings of parties in this case.It is equally established that the Claimants are senior staff of the Defendant and that paragraphs 3.07 and 3.19 of the Conditions of Service are directly applicable to them.
  5. Counsel contended that having taken recommendation on the discipline of the Claimantsother than from the appropriate Standing Committee (Senior Staff Discipline and Welfare Committee), the Defendant has breached the laid down rules for the retirement and dismissal of the Claimants.While paragraph 3.07 of the Defendant�s Staff Conditions of Service provides that ��Recommendations of disciplinary action in respect of senior staff shall be made to the Commission by the Senior Staff Discipline &Welfare Committee (SSD & WC). In the case of junior staff, recommendations shall be made by the junior staff Committee (JSC)to the Secretary or the Administrative Secretary as the case may be.
  6. The Defendant took recommendationfrom the Appointment, Promotion and Disciplinary Committee, a Committee not even listed as a standing committee in the Defendant�s Staff Condition of Service.
  7. The Claimants State in their paragraphs 13, 22, and 24 of the Statement of claim as well asparagraphs 15,24,26,of the 1^st Claimant�s Statement on Oath; Paragraph 23, 24 of the 2^nd Claimants Statement on Oath; and Paragraph 22, 23 of the 3^rd Claimants Statement on Oath that they were made to appear before a certain Appointment, Promotion and Disciplinary Committee of the defendant which pleadings and evidence were not contradicted by the Defendant. As a matter of fact, the Defendant admitted that they took the claimants before the APDC and acted on its recommendations in meeting out punishment to the claimants in paragraph 14, 15, 17, 18 and 24 of its statement of Defence; paragraphs 5, 13, 14, 16, 17 and 23 of the witnessStatement on Oath of the Defendant�s sole witness.
  8. It is the submission of counsel that it is settled principle of law that facts admitted need no further proof. The Defendant, having admitted that they only took the claimants before, and indeed, took recommendations from the Appointment, Promotion and Disciplinary Committeeinstead of the Senior Staff Discipline and Welfare Committee in meting out the disciplinary actions against the claimants, absolves the claimants the need to prove the fact that they did not appear before the appropriate Committee which ought to have made recommendations pursuant to paragraph 3.07 of the INEC Staff Conditions of service. Counsel urged the court to so hold.
  9. It is also the contention of counsel that the attempt by DW1 under cross- examination to suggest that whenever there is a new chairman of the Commission names of Committees are changed is an attempt to change the goal post in the middle of a football match which this HonourableCourt cannot allow.There is nothing placed before this court to prove the assertion that the name of the appropriate Committee before which the claimants ought to have appeared has been changed. Not even the INEC Rules of Procedure, 2014 pleaded and relied on by the Defendant answers this question. There is no provision of the INEC Rules of Procedure stating that the Senior Staff Discipline and welfare Committee has been replaced by or changed to Appointment, Promotion and Disciplinary Committee. Apart from the fact that oral evidence cannot be used to contradict documentary evidence as the Defendanthad intend to do, the Defendant cannot also draw the court into the realm of speculation. Counsel posited that court does not act on speculations but on facts and evidence led in support before it. To buttress this submission counsel relied on the cases of UWAGBOE V. STATE (2008) LPELR � 3444 (SC) @ P. 32, para B, IKENTA BEST (NIGERIA) LIMITED V. ATTORNEY GENERAL OF RIVER STATE (2008) LPELR-1476 (SC), OLALOMI INDUSTRIES LTD. V. NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD. (2009) LPELR-2564 (SC) @ P. 44,paras. E-G, the Apex Court held thus:-
  10. Counsel reiterated his submission that oral evidence of the sole witness to the Defendant under cross-examination isan attempt to alter the content of documentary evidence by oral evidence. Documents speak for themselves. To support this argument counsel relied on the case of Ozo Jonathan Agu & Anor. Christopher Nwoye & Ors. (2015) LPELR � 40676 (CA), where the Court held thus:-
  11. Counsel also contended that it is settled law that parties are bound by their pleadings and that evidence not supported by pleadings goes to no issue and pleadings not supportedby evidence goes to no issue.The Defendant stated through DW1 under cross-examination,that the Defendant�s Staff Conditions of Service was still in operation, that Senior Staff Discipline and Welfare Committee was changed to Appointment, Promotion and Disciplinary Committee before it filed its statement of defence yet, did not led evidence to show how, and when such change of nomenclature occurred.Merely stating that the claimants appeared before the appropriate committee now called APDC without more does not avail the Defendant. This is a tacit admission that the Claimants were notinvestigated before the appropriate Committee in clear contravention of paragraph 3.07 of the INEC Staff Conditions of Service and ultimately, in violation of the laid down principles of law on statutory employment. Counsel urged the court to so hold.
  12. It is the contention of counsel that what is more, the Defendant, even though called several other of its staff who were not accused of conducting voter registration in unapproved center to give some form of evidence, it is nowhere in their record in Exhibit F showing that the Claimants were given the opportunity to examine those staff who testified. It is on record that only the Committee at various points put questions across to the witnesses and it is not recorded whether the Claimants were present let alone to examine the witnesses. By paragraph 3.19 of the INEC Staff Conditions of Service titled disciplinary procedure in sub-paragraph (k): �where witnesses are called to give evidence, the employee shall be entitled to be present to examine the witnesses.�
  13. Counsel contended that the absence of the Claimants during proceedingswhere the variouswitnesses testified and to examine them as evidence in Exhibit F, aside been contrary to paragraph 3.19(k) of INEC Staff Condition of Service, negates the principles of fair hearing thereby nullifying the entire proceedings leading to the wrongful compulsory retirement of 1^stClaimant and wrongful dismissal of the 2^nd and 3^rd Claimants. Counsel contended that it is settled principle of law that he who alleges is duty bound to proof his allegation. See section 132 of the EvidenceAct, 2011.
  14. It was on the basis of the allegation that the 2^nd and 3^rd Claimants were pictured at a strange center conducting continuous voter registration of the Kogi State Governor that the Defendant initiated the proceedings leading to the wrongful compulsorily retirement of the 1^stClaimants and the dismissal of the 2^nd and 3^rd Claimants. In fact, the entire allegation was anchored on picture making the rounds on the internet the source of which the Defendant, as stated by DW 1under cross-examination, does not know worsestill,DW 1did not know how the online newspaper reports (Tendered by Him as Exhibits) leading to the retirement and dismissal of the Claimants was printed. Even though he claimed they were printed by the ICT department of the Defendant, no staff of the ICT was called to give evidence as to how they came about the online news and indeed, how they printed same. Even worst, the online newspaper tendered in evidencebefore this Court were not tendered through the vendor or editors of the newspaper in order to place them in the witness box for cross-examination as to the authenticity of their publication, that is if the publication indeed emanated from any of the listed online newspapers, in fact, they were not tendered from proper custody and as such, it is liable to be rejected. Further, the newspaper is now public documents that also require certification in accordance with the extant laws and failure to so certify renders it inadmissible documents. To buttress this contention counsel relied on the case of CHIEF RITA LORI OGBEBOR V. ELDER JOHN ONOJAKPOR &ORS. (2019) LPELR-47176 (CA).
  15. Counsel contended that since the newspaper publications tendered as Exhibits by the Defendant is patently inadmissible; they ought to be expunged from the record of Court.
  16. Counsel submitted that assuming although not conceding that this court holds that the Newspaper publication is admissible in any guise, it is submitted that the content was never proved by the Defendant in any way to warrant reliance on it. Further, the content of the Newspaper falls within the category of documentary hearsay which is inadmissible in law. Counsel urged the court not to rely on the content of the Newspaper publications.
  17. Counsel forcefully argued that the 2^nd and 3^rdClaimants throughout the proceedings in Exhibit F and in their pleadings and evidence in this case maintained that they were never in the Kogi State Government House or anystrange center to register the Governor, any prominent person or any person at all. They maintained that they did not know how they appeared in the pictures allegedly making the rounds on the internet and that the picture could have been �photos shopped� in this technologically advanced age. It therefore behooves on the Defendant who alleged that the 2^nd and 3^rd Claimantswere the ones in the picture to ascertain the authenticity of the picture and not to assume that the 2^nd and 3^rd Claimants were not telling the truth without fact checking.
  18. It is the contention of counsel that under the circumstance that the defendant who alleged that the 2^nd and 3^rd Claimants were the ones in the picture trending on the internet has the burden to establish that the picture was not only concocted but genuine. This is more particularly necessary, since the picture was obviously not takenby the Defendant or any of its agents, neither was it posted on the internet by the Defendant or any of its agent.
  19. In paragraph 21 of DW1�s statement on oath, he testified thus: �that the decision of the summary dismissal of the 2^nd and 3^rd Claimants and retirement of the 1^st claimant was based on the evidence and report of various Committees set up to investigate the matter which was conducted in accordance with the principles of fair hearing and INEC Conditions of Service.� This piece of evidence is in consonance with paragraph 25 of the Statement of Defence where the Defendant averred that ��. The 1^stclaimant was retired compulsorily and the 2^nd and 3^rd Claimants were summarily dismissed after the due process set out by the conditions of service has been followed.� Under cross-examination, DW1 particularly asserted that �I stand by everything in my statement on oath particularly, paragraph 21.�
  20. It is submitted that the pleadings and evidence of the Defendant in this case is completely self-defeating and at variance with the Independent Electoral Commission Staff Conditions of service for the following reason:
    1. While the Conditions of Service required that recommendations for the discipline of senior staff shall emanate from the senior Staff Disciplineand Welfare Committee, the recommendations leading to the compulsory retirement of the 1^stClaimant and the summary dismissal of the 2^nd and 3^rd Claimants emanated from the Appointment, Promotion and Disciplinary Committee. See paragraph 3.07 of INEC Staff Conditions of Service.
    2. There is nowhere in the entire Staff Condition of Service purportedlyrelied on by the Defendant in punishing the Claimants where Appointment, Promotion and Disciplinary Committeeis listed as a standing committee.
    3. From exhibit F, different persons other than the claimants were invited for questioning by the various Committees set up by the Defendant to investigate the allegations against the Claimants. None of the other persons was questioned in the presence of the Claimants neither did the claimants examine any of them during investigation proceedings. This is contrary to paragraph 3.19 of INEC Staff Conditions of Service.
  21. Counsel agreed with the Defendant in its paragraph 4.01 to 4.03 of final Written Address that in the matter of discipline of an erring of a statutory employment, the procedure laid down by the applicable laws, regulations of condition of service must be fully complied with as any decision affecting the right of an employee in contravention of the said laid down rules or condition of service shall be decided in an appropriate proceedings. The Defendant rightly refereed to the followingauthorities on this point: FIRS V. LEWI Sunday Michael (2014) All FWLR (Pt.735)366; Olaniyan University of Lagos (1985) 2 NWLR (Pt. 9) 509; SPDC (Nig)Ltd. V. Addico (2016) All FWLR (Pt.816) 445; FUT, Yola v Maiwuya (2013) All FWLR (Pt. 677)756
  22. In respondingto whether the Defendant followed the laid down rules in the condition of service before dismissing the 2^nd and 3^rd Claimants and compulsory retiring the 1^stClaimant, counsel contended that the Defendant cannot pick and choose which of the laid down rules to comply with. Complying with the conditions of service must be holistic and not to be cherry-picked by the whim and caprice of the Defendant as so which procedure to comply with and which not to comply with.
  23. Counsel maintained that it is settled law that Provision of Regulations and Conditions of Service in a Statutory Employment must be followed to the letter as any breach would render the exercise of termination null and void. See Adeniyi v. GoverningCouncil of Yaba College or Technology (1993) 6 NWLR (Pt.300) 426. Also Oloruntoba-Oju & Ors V. Abdul-Raheem & Ors (supra).The defendant rightly admitted that INEC staff Condition of Service (Exhibit CW2H) spells out procedure that must be followed before the Defendant can take any disciplinary action against its employees including the claimant herein.
  24. However, paragraph 3.07 of Exhibit CW2H clearly states what Standing Committee of the Defendant is empowered to make recommendation for the discipline of any of its erring employee. That power vests on the Senior Staff Discipline and Welfare Committee (SSD & WC) and none other. Clearlythe failure of the Defendant to take the claimants before the appropriate committee and its consequent acting on the recommendation of an inappropriate Committee is a violation of Exhibit CW2H.
  25. TheDefendant has placed reliance on the various query letters issued to the claimants as evidence of its compliance with paragraph 3.10(i)of exhibit CW2H. The question that begs for answers now is �what about compliance with paragraphs 3.07 and 3.19(k)?Did the recommendations for the disciplinary action meted against the Claimants originate from the appropriate committee as envisaged by paragraph 3.07? was the Claimants given fair hearing in the circumstances of failure to comply with paragraph 3.19(k)? we answer these questions in the negative and urged the court to so hold.
  26. Counsel contended that Clearly, even paragraph 3.19 of Exhibit CW2H provide that: �an employee may be dismissed/terminated or compulsory retired on the recommendations of the appropriate Committee and in accordance with the following dictionary procedure unless otherwise provided in the Conditions of Service�� From the wording of paragraph 3.19 above, the paragraph must be given its ordinary meaning in its interpretation which mean: recommendation must emanate from the appropriate Committee (in this case, the SSD & WC as contained in paragraph 3.07) and the procedure for discipline of any staff of the Defendant is as provided by the Conditions of Service alone. The Defendant is not at liberty to discipline an erring staff otherwise than as provided in the Conditions of Service (that is, Exhibit CW2FH). Counsel urged the court to so hold.
  27. Counsel posited that aside the fact that the Defendant claims it complied with Exhibit CW2H in meting out punishment to the claimants when it is obvious it went outside it, the issue that requires the interpretation by this Honourable Court is the status of the INEC Rules of Procedure (exhibits G) and INEC Staff Conditions of Service (exhibit CW2H) for the purpose of staff discipline and incidental matters.
  28. It is the contention of counsel that what makes the employment of the Claimants statutory in nature is the Condition of Service made pursuant to the powers of the Commission in section 8(3) of the Electoral Act, 2010 (as amended).An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. Since it is not in dispute that the employment of claimants with the Defendant is governed by the INEC Staff Conditions of service (Exhibit CW2H), their employment enjoys statutory flavour and they cannot be properly or legally removed from their employment until they complied with the condition of service. In support of this contention counsel relied on the case of Comptroller General of Customs & Ors v. Gusau (2017) LPELR-42081(SC); Imoloame v. WAEC (1992) NWLR (Pt. 265) 303; Okocha v. Civil Service Commission (Edo State) & Anor (2003)LPELR-7268 (CA);Shita-Bey v. Federal Public Service Commission (1981) 1 SC 56.
  29. OnExhibit G (INEC Rules of Procedure) counsel contended that as the name implies, is the embodiment of the procedure to be adopted while the Commission is comply with Exhibit CW2H. It is akin to Rules of Court.In order words, while INEC Staff Conditions of Service enjoys statutory flavour, the INEC Rules of Procedure exists asRuleof Procedure in the realm of the Rules of Court. In essence, while the Conditions of Service can establish a standing committee and confer jurisdiction on it, the Rules of Procedure cannot in itself confer such jurisdiction. See Clement V. Iwuanyanwu (1989) 3 NMLR (Pt. 107) 39 at 50.
  30. It is the contention of counsel that Rules of Court (INEC Rules of Procedure) are not sacrosanct as statutory provisions of Law. A rule of court (Exhibit G) cannotconfer jurisdiction. It only regulates the practice of court (the Defendant) in the exercise of a power derived aliunde (from another source from elsewhere i.e derived from INEC Staff Conditions of Service)and does not confer power, Rules of Court (Exhibit G.) cannot override statutory of provisions the law (Exhibit CW2H). On this position counsel relied on the case of All v. NDIC (2014) LPELR-22422 (CA), Afribank v. Akwara (2006) 5 NWLR (Pt. 974)619.
  31. It is also further argued by counsel that like the courts established by the Constitution are vested with power to do justice, the Defendant is vested with power to do justice to all its employees via the Condition of Service (Exhibit CW2H). In their onerous responsibility to do justice as the case may be, the courts are guided by the rules of court which aids in the administration of justice while INEC is guided by its Rules of Procedure (Exhibit G). The rules of court for the courts and the rules of procedure for INEC are statuary instruments not elevated to the pedestal of statutes. On this contention reliance was placed on the case of BBN Ltd. v. Olayiwola & Sons Ltd.& Anor (2005) LPELR-806(SC). Counsel continued with his submission that as a matter of law, rules of court cannot be accorded the status as immutable as statutory provisions. On this contention counsel relied on the cases of Obi V. INEC (2008) 1-2 SC 23 at 31; Katto v. CBN (1991) 9 NWLR (Pt.214) 126 at 147; Ugwu & Ors v. PDP & Ors (2013) LPELR-21356 (CA).
  32. Counsel argued that the argument of counsel to the Defendant that Exhibit G creates Standing Committee is akin to elevating the Rules of Procedure to the pedestal of statute. The argument is more particularly faulted in view of the provisions of paragraph 3.19 of Exhibit CW2H. In fact, the title of the two documents under review clearly espouses the intention of the maker. While Exhibit CW2H is intended to be the substantive law governing the conditions of service of the claimants, Exhibit Gis intended to be the procedural rules to be adopted whenever the Defendant is to take any decision. Exhibit G. therefore cannot vest jurisdiction on a Committee but state howa Committee shall conduct its affairs. Counsel urged the court to so hold.
  33. According to counsel even if Exhibit G can vest jurisdiction on any Committee, there is nowhere in the exhibit where SSD & WC was stated to be replaced by APDC.
  34. Cumulative therefore, since the Defendant has insisted that it ought to act in accordance with and indeed, it acted within CW2H, anything done in contravention of paragraph 3.07 and 3.19(k) renders the compulsory retirement of the 1^st Clamant and the dismissal of the 2^ndand 3^rd Claimants a nullity. Counsel urged the court to so hold.
  35. Counsel contended that the law is settled that a party cannot approbate and reprobate at the same time. Consistenceis the rule in litigation. The Defendant cannot argue on one hand argue that Exhibits CW2His what it ought to and indeed followed in arriving at its decision to punish the claimants and then turn round to say it could also reach its decision by relying on Exhibit G. to buttress his submission counsel relied on the case of Comptroller General of Custom & Ors V. Gusau (supra).The Defendant must indeed comply with only the Conditions of Service and none other otherwise; its decision in this case is a nullity. To support this view counsel relied on the case of FMC Ido Ekiti v. Kolawole (2012) All FWLR (Pt. 653) 201.
  36. On the question, whether this court can question the decision of the investigation panel leading to the action of Defendant now complained of, counsel submitted that Court is clothes with the vires to investigate whether in the process of writing cessation of appointment letters to the appellants the procedure laid down in the applicable statute was complied with. Provisions of Regulations and memorandum of appointment must be followed to the letter as any breach would render the exercise of termination null and void. Adeniyi v. Governing Council of Yaba College of Technology (supra); Oloruntoba-Oju & Ors V. Abdul-Raheem & Ors (supra).
  37. As to whether the Claimantswere given fair hearing in the investigation that led to the compulsory retirement and dismissal; it is submittedthat fair hearing goes beyond merely inviting the Claimants to appear before panels or committee. It extends tofull compliance with the laid down procedure as contained in the StaffConditions of Service. Failure to comply with any of the procedure laid down renders the entire exercise a nullity.To buttress this submission counsel placed reliance on the case of University of Calabar v. Essien (1996) 10 NWLR (Pt.447) 225 at 262, where it was stated as follows:
  38. Counsel argued that clearly in the instant case as demonstrated herein, the Defendant failed to comply with paragraph 3.19(k) of Exhibit CW2H which provides that where other persons are called to testify, the employees standing inquiry/investigation must be present and be allowed to examine the witnesses. This infraction of the laid down procedure is in addition to the fact that the recommendations upon which the Defendant acted did not emanate from the appropriate Committee as envisaged by paragraph 3.07and 3,19 of exhibitCW2H. In the circumstances, fair hearing has been breach hence, negates the decision of the Defendant. Counsel urged the court toso hold.
  39. On the other hand, looking at the matter before the court on its merit, it is clear as crystal that nothing is laid before this court linking the Claimants down to the allegations leading to their compulsory retirement and dismissalrespectively.Exhibit �F� the processing before the Defendant�scommittee; disclose that the Defendant was very unsure of which of her DDC Machinewas allegedly used for the registration in issue. All evidence adduced in exhibit F shows that there was zero entry in the computer suspected to have been used for registration outside approved centers. It is ordinarily expected that evidence of data capturing and temporary voter�s card printedconsequently, be available on the computer. Thereis nothing on the said computer to disclose this fact.Worst still, at the locus whereas the Defendant called a witness who was not,listed, the witness confirmed that the suspected computer was always in the custody of the HOD, ICT, Lokoja and that the said HOD was invited to appear before the Defendant�s Committee and that he did appear and gave evidence. The witness at locus equally confirmed that no entries were found in the computer and that, even though the HOD informed the Commission that the Computer Hardware was possibly tampered with, the witness could not tell whether the tempering occurred during investigations before the committee, or while in custody of the HOD, ICT, Lokoja, or at the Headquarters of the Defendant after it was submitted.
  40. This piece of evidence casts monumental doubt on the culpability of the Claimants and the findings of the Defendant in compulsorily retiring the 1^stClaimant as well as dismissing the 2^nd and 3^rd Claimants. Counsel urged the court to so hold.
  41. On the whole, counsel urged the court to hold that the Claimants are entitled to all the reliefsought and grant same against the Defendant.
  42. Upon being served with the claimants� final written address the defendant filed a reply on points of law.
  43. In response to the Claimants argument that the Defendant did not comply with its condition of service particular paragraph 3.07 and 3.19 (k) contending that the committee the Claimants appeared before was not the appropriate committee.However, the Claimants having admitted the facts averred by the Defendant in paragraph 24 of its statement of Defence in response to paragraph 26 of the Claimants� statements of claim to the effect that the appropriate committee to be faced by the Claimants is the Appointment, Promotion and Disciplinary Committee (APDC) as Senior staff of the Defendant.
  44. It is a cardinal principle of law that, not denying averment in a statement of defence is admission of such averment. In support of this position counsel referred the court to the case of MAKANJUOLA VS. AJIORE (2000) ALL FWLR Pt. 8 PG. 1332 where the Court held that:
  45. Also, in the case of JACKIE PHILIPS V. EBA ODAN OCMMERCIAL AND INDUSTRIAL COMPANY LIMITED (2012) LPELR-9718 (SC), the Supreme Court held that:
  46. In further support of the above submission counsel also relied on the case OLLY V.TUNJI (2013) ALL FWLR Pt. 654 at pg 39; ACHILIHU v. ANYATONWU (2013) all FWLR Pt. 696 483.
  47. Counsel contended that it is clear from the averment in paragraph 24 of the Statement of Defence,which raised a new issue that the Claimants appeared before the appropriatecommittee, which is the APDC, was not denied by the Claimant. Therefore, in law it is deemed admitted. Counsel urged the court to so hold.
  48. Assuming without conceding that the Claimants had joined issue with the Defendant that the APDC is not the appropriate committee to be appeared by the Claimants and make recommendation to the Commission (Defendant). The wording of paragraph 3.07 of the Defendant�s Staff condition of service provide that �Disciplinary power over employees on grade level 07 and above is vested in the Commission.� Also paragraph 3.19 use the word appropriatecommittee in respect of disciplinary of senior staff. Subsection �A� of paragraph 3.19 provides that the Commission shall set up a �committee� inthat regard. The cumulative effect of the wordings of these paragraphs is that, the power to discipline senior staff is vested in the Commission and the commission can also set up �any committee� which is deemed appropriate to investigate and make recommendation accordingly.
  49. Counsel contended that committees are usually set up for administrative convenience in 2007, the commission has 13 standing committee which was clearly stated at page III OF Exhibit CW2H (Staff Condition of service) However, the committee were restyled, remodeled, fused and increase to be 15 committee in 2014 by virtue of Article 12 of Exhibit G (Rules of Procedure)which was made pursuant to the provision of the Constitution of the Federal Republicof Nigeria. It was clearly stated in the preamble �it shall govern the commission in all cases where they are applicable to the extent that they are not inconsistent with the provision of the Constitution of the Federal Republic of Nigeria and ElectoralAct.However, the staff condition of service was made to be reference point for employee pursuant to their responsibility as statedinpage ix.
  50. It is important to note article 27.0 of Exhibit G (Rules of Procedure)providesthus:
  51. Article 27.1 provide for the establishment of Appointment, Promotion and Disciplinary Committee (APDC).However, article 27.1.0 of Exhibit G provides for the function of the said committee thus:
  52. Also, Article 27.1.6 further provides thus;�
  53. It is the contention of counsel that by the above provisions of Exhibit G, it is evidently proof before this Court that the only existing standing committee for the time being in the Commission that exercise the function of Appointments, Promotions Investigation and recommendation on disciplinary matters to the Commission is the APDC and no any other. However, the Claimants who argued in their address that APDC is not the appropriatecommittee was unable to proof during trial that the Senior Staff Discipline and Welfare Committee (SSD & WC) is still in existence as the Commission�s Standing Committee.
  54. Counsel contended that when issues are joined parties in pleadings evidence is require to prove them as averred.To support this argument counsel placed reliance on the case of GENEVA V. AFRIBANK (NIG) PLC (2013)All FWLR��where the Supreme Court held thus:
  55. While placing reliance on the case of CHIEF S. N. MUOKAH V. ENTERPROSE BANK LIMITED (2015) LPELR- 24832, counsel contended that the argument of theClaimants� counsel in his final written address cannot replace the evidence before this court. Moreover, the Defendant proved before this Court that Article 12 of the Rules of Procedure, which provides for the current standing committee of the commission, replaced the standing committee in page VIII ofExhibit CWH2 (Staff Condition of Service). To buttress his contention counsel referred the court to the case of ROTIMI WILLIAMS AKINTOKUN V. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC) (2014) LPELR-22941 (SC)
  56. Where the Supreme Court held thus:
  57. Counsel submitted that the provisions of article 12 of Exhibit G (Rule of Procedure) has replaced the earlier standing committee provided for in Exhibit CW2H. Counsel urged the court to so hold.
  58. The Claimants� counsel in his final written address argued that the Defendant did not comply with paragraph 3.9 (k) of Exhibit CWH2.It is clear from the pleadings of the parties and the evidence before the court,there is nowhere it shows that Defendant called witness(s)to testify during the disciplinary procedures. It is a basic principle that parties are bound by their pleading. Counsel in support of this submission relied on the case of JOHN OFORISHE V. NIGERIAN GAS COMPANY LTD (2017) LPELR-42766 (SC);AGU V. GENERAL OIL LTD (2015) 4-5 SC (Pt. 1) P.69; IBRAHIM V. OBAJE (2018) All FWLR (Pt. 937) P. 1682.
  59. Also, the documents which were admitted as evidence before this Court, speak for themselves, Exhibit F (the Certified True Copy of the Kogi Panel of Investigation, APDC fact Finding Panel and the Disciplinary Committee)which constitute the record of proceeding of the Disciplinary procedure clearly showthat the only people who appeared before the committee were persons suspected to be part of the act of misconduct. On this proposition counsel cited and relied on the case of OGBUESHI P. C.IKEMEFUNA & ORS V. OBIORA ILONDIOR & ORS (2018) LPELR-44840 (CA) where the court held that:
  60. It is the contention of counsel that the Defendant never called any witness during the Disciplinary procedure as contained in the record of proceedings in Exhibit F (certified True Copy of the Kogi Panel of Investigation, APDC Fact Finding Panel and the Disciplinary Committee).
  61. Claimants� counsel in his final address argued on the admissibility of Exhibit A1-3 andB1-2. In response to the said argument, counsel contended that admissibility of computer generated evidence as provided for in Section 84EvidenceAct is the fulfillment of the conditions in sub-section 2 of section84 Evidence Act. The Defendant duly complied with this section by filling certificate of authentication as required by law. In support of this argument counsel relied on the cases of UNION BANK OF NIGERIA PLC V. REUBEN AGBONTAEN & ANOR (2018) LPELR-44160 (CA); ROWAYE JUBRIL V. FEDERAL republic of Nigeria (2018) LPRLR-43993 (CA); OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-248003 (SC); HON. HENRY SERIAKE DICKSON V. CHIEF TIMIRE MARLIN SYLVA & ORS (2016) LPELR0-41257 (SC)
  62. By virtue of paragraphs 7,8& 10 of the Statement of Defence where the Defendant pleaded the newspaper publication, which were admitted, in evidence as Exhibit A1-3 and B1-2. The Cumulative effect of those paragraphs and evidence before this courtis that, there was an allegation against the Commission of registering the Governor of Kogi State at the Government House during the Continuing Voting Registration (CVR), same was confirmed by the Director-General Media and Publicity to the Governor via the press release published. Averments in those paragraphs were never denied norevidence adduced tocontrovert by the Claimants during the trial. It is principle of law that parties are not to be taken by surprisethat is why the court as well as the parties are bound by the pleadings. To support this contention counsel placed reliance on the cases of AKINFOLARIN & ORS. V. AKINOLA (1994) LPELR-345 (SC); ABOYEJI V. MOMOH & ORS (1994) LPELR-46(SC); AGALA & ORS. V. OKUSIN& ORS (2010) LPELR-221 (SC).
  63. It is the submission of counsel that the Newspaper publication admitted in evidence were only proof of the publication averred in paragraphs 7,8 & 10 of the Statement of Defence. See the case OLLY V. TUNJI (Supra) where the Court held thus:
  64. The claimants counsel raised flames on issue of photos and photos shopped in the claimants final written address, in response to the said arguments, we submit that, the defendant at paragraph 6 of statement of defence clearly by confession and avoidance states its case against 1^st claimant that he was found negligent in performance of his duties while the 2^ndand 3^rdclaimants were found guilty of serious act of misconduct. The averments in paragraph 6 of statement of defence were neither deny nor controverted by any evidence,more so, the averment was a summary of facts in Exhibit CW1H therefore it is gleaned that the claimants undoubtedly admitted the facts averred by the defendant in paragraph 6 of the statement of defence. In support of this position counsel relied on the cases of MAKANJUOLA VS. AJIORE (SUPRA), JACKIE PHILIPS V. EBA ODAN COMMERCIAL AND INDUSTRIAL COMPANY LIMITED (SUPRA), ACHILIHU V. ANYATONWU (SUPRA) & OLLY V. TUNJI (SUPRA).
  65. In response to the claimants as to the cross-examination answer of the locus witness, counsel urged the court to be guided by the records proceedings of the court in this suit and pages 27 to 29 laptop investigation report of Exhibit CW1H and Exhibit F.
  66. I have carefully and painstakingly considered all the court processes filed in respect of this suit as well as the written addresses and oral submission of counsel for both sides.
  67. The facts of this suit as disclosed from the processes filed and the testimonies of witnesses called by the parties are straightforward. The case of the Claimants in a nutshell is that they were wrongly disengaged from the service of the Defendant following a trending picture of 2^nd and 3^rd defendants making round in the internet showing them registering a prominent figure in unauthorized center in the course of continued voter registration exercise in Kogi State. The claimants are asserting that the disciplinary action taken against them was in contravention of the conditions of service governing their employment.
  68. The Defendant on the other hand is insisting that the disciplinary action taken against the claimants leading to compulsory retirement of the 1^st Claimant and dismissal of 2^nd and 3^rd defendants was in line with due process without any breach of the laid down staff conditions of service, as provided in the Defendants rules and regulations.
  69. The facts which led to the filing of this suit briefly are that the Claimants were variously at different times employed by the Defendant as per exhibits CW1A, CW2A and CW3A. The 1^st Claimant was promoted to the rank of a Deputy Director vide exhibit CW1B, the 2^nd Claimant was promoted to CW2C to the rank of Senior Engineer GL.10 and the 3^rd Claimant was promoted to the rank of CW3C to the rank of Administrative Officer 1, GL 09.The Claimants have their employment confirmed by the Defendant.
  70. However, the Claimants were queried on picture making rounds on the internet where the 2^nd and 3^rd Defendants were captured in a group registering some prominent persons in a strange center during the ongoing continuous voters registration exercise in Kogi State, which has caused embarrassment to the defendant. The claimants were vide the queries of 24/5/17 asked to explain circumstances leading to the embarrassing act, when and where it happened and why disciplinary actions should not be meted on them. See exhibits CW2D and CW3D the claimants swiftly responded to the queries where they denied the allegations leveled against them. Dissatisfied with the answers to the queries given to the claimants, a panel of investigation was set up to investigate the involvement of the claimants in the allegations. The Committee invited the Claimants who appeared before the committee and reiterated the content of the answers to the query issued to each one of them. The Panel submitted its report to the Administrative Secretary who in turn sent it to the Headquarters of the Defendant. The Defendant referred the report of investigation to the Appointment, Promotion, and Committee (APDC) to deliberate on the report and make necessary recommendations. The APDC Committee invited the Claimants and some other staffers of the Defendant. At the end of the exercise, the APDC Committee submitted its report to the Defendant with recommendation for subjecting 1^st and 2^nd Claimant together with one Abubakar Lawal to further interrogation for serious misconduct. The Defendant upon receipt of the report of APDC referred the case to the Disciplinary Committee for further investigation. The 2^nd and 3^rd Claimants along with Abubakar Lawal, were recommended for further Disciplinary proceedings. They were queries on 6/11/17 upon receipt of their responses; they were invited to appear before the Disciplinary Committee set up by the Defendant to investigate them in respect of the allegation of registering Governor Yahaya Bello at unauthorizedCenter during the Continuous Voters Registration.
  71. The Disciplinary Committee invited 2^nd and 3^rd Claimants and another officer Abubakar Lawal to appear before the Disciplinary Committee for serious misconduct. The Committee at the end of its assignment exonerated Abubakar Lawal from any blame and recommended 2^nd and 3^rd Claimants for dismissal from service for having found them culpable of serious misconduct. Based on the recommendation of the Disciplinary Committee, the 1^st and 2^nd Defendants were dismissed from service and the 1^st Claimant compulsorily retired from service.
  72. The Claimants instituted this suit to challenge their disengagement from service on the ground that procedure laid down for taking disciplinary action as per the conditions of service exhibit CW2H were not followed and also that they were not given fair hearing. The Claimants� letters of retirement and dismissal were tendered and admitted in evidence as exhibits F1-3. The Claimants are contending that the compulsory retirement of 1^st Claimant and the dismissal of the 2^nd and 3^rd Claimants from service should be declared null and void of no effect whatsoever on the ground that their employment has statutory flavor, which make adherence to the rules and conditions of service exhibit CW2H mandatory. They argued that they did not appear before the appropriate disciplinary committee. The rules and conditions of service recognized only Senior Staff Discipline and Welfare Committee as the appropriate Committee to handle the disciplinary action against them, being senior staff of the Defendant and not Appointment, Promotion and Discipline Committee.
  73. The determination of the dispute between the Claimants and the Defendant in this suit will revolves round the issue of whether the disciplinary action taken against the Claimants by the Defendant leading to the punishment imposed on them was in line with the staff condition of Service of the Defendant and whether the Defendant breach the principle of fair hearing in determining the employment of the Claimants.
  74. The claimants have pleaded in their statement of facts that their employment is that with statutory flavor. Consequently, for their disengagement from service to be effective there must be full and complete compliance with the conditions of service which in this case according to the Claimants is exhibit CW2H. The Defendant agreed that the employment of the Claimants enjoyed statutory flavor. The point of disagreement is on whether the staff Condition of Service or the Rules of Procedure 2014, is what governed disciplinary action against employees of the Defendant. It was argued by the Defendant that the provisions of exhibit �G� (Rules of Procedure 2014), being later in time superseded the provision of Staff Condition of Service exhibit CW2H. For the counsel for the Claimant exhibit �G� prescribed procedure which according to counsel is akin to rules of Court and does not confer jurisdiction regarding disciplinary proceedings. While exhibit CW2H is the regulations that governed disciplinary action, which must be complied with.
  75. Primarily, and this is elementary, the duty or responsibility of the courts is to interpret and apply laws by whatever name called, including Acts/laws of the National/State Assemblies. Courts do not make laws Courts do not amend or repeal laws/Acts of National or State Assemblies. These certainly, are functions of the Legislature. Courts have no power to add or reduce any provision made by the Legislature. All that the Judges are required to do as operators of the courts is to interpret/apply the law as it is, based on the judge’s understanding. In that process, of course, judges are not infallible. They can make human errors. Infallibility belongs only to God. Thus, why the appellate court were established to correct wrongs of trial court where it is committed.
  76. It is a cardinal principal of the law that statutes are not repealed by inference or implication but by direct provision of the law. See: Raleigh Industries Limited Vs. Nwaizu [1994] 4 NWLR [Part 341] 260 at page 771. The Court will not imply a repeal unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time. See: Uwaifo Vs. Attorney-General Of Bendel State [1982] 7 SC. 124 at page 191; Olu Of Warri Vs. Kperegbeyi [1994] 4 NWLR [Part 339] 416.
  77. In Law, therefore, there are circumstances in which a repeal of an enactment can be implied or inferred and that are where two acts of the legislature are plainly repugnant to each other that effect cannot be given to both at the same time. Thus, repeal by implication cannot be prohibited where circumstances warrant. See: Ellan Street Estates Limited Vs. Minister Of Health.
  78. There is no disputing the fact that the Defendant is one of the Federal Executive Bodies established or created by the provisions of section 153 (1) of the constitution of the Federal Republic of Nigeria, 1999, as amended. The Defendant is by the combined effect of sections 153, 158 and 160 of the Constitution as amended and section 8(3) of the Electoral Act 2010 as amended conferred with power to appointment, promotion and discipline of its members of staff. The provisions of the Constitution as amended and the Electoral Act 2010 as amended also conferred on the Defendant to make rules and regulations in respect of appointment, promotion and discipline of its employees. It is to be noted that the Defendant was established along with the Federal Civil Service Commission and the Federal Judicial Service Commission who have regulations that governed appointment, promotion and discipline of the members of staff employed by the two Commissions.
  79. The Regulations made by the Federal Civil Service Commission and the Federal Judicial Service Commission derived their force from the provisions of sections 153, 158 and 160 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. See SHITTA-BEY V FCSC, OLANIYAN V UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599, EPEREKU V UNIVERSITY OF LAGOS 1986 7 SC PT1, 79.
  80. In the Supreme Court decision in COMPTROLLER GENERAL OF CUSTOMS & 3 ORS. V COMPTROLLER GUSAU (2017) 4 SC (PT.II) 128, which appears to be the most recent authority of the Supreme Court on this thorny issue of statutory flavor at pages 8, 10 & 11 of the authority are very instructive on the issue at stake. According to Ejembi Eko, JSC in the leading judgment at pp. 8-9:

The main object and intention of the Constitution, in vesting the Federal Civil Service Commission with the power not only to appoint persons to offices in the Federal Civil but also to make rules regarding the manner they retire, or the manner they are compulsorily retired, therefrom are clear. They are to engender in the civil servants security of tenure, which they psychologically need for patriotic and honest discharge of their duties. Where the main object and intention of a statute are clear, the Court, in its interpretative power, must give effect to those main object and intention�

This Court in Shitta-Bey v. Federal Civil Service Commission�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 bye-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.� [Underlined for emphasis]

K. M. O. Kekere-Ekun, JSC, in His concurring judgment, restated the law on when conditions of service would become a subsidiary legislation deemed to have statutory flavour stated as follows:-

�An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship.�

The above rationes decidendi from two of the justices that sat on the case demonstrated without equivocation and emphasize that the parent statute must itself directly regulate the employment before it could delegate power to a non-legislative body to make conditions of service with statutory flavor. It is sufficient if the parent statute merely governs it. What was stressed is that, an implicit nexus, as gathered from the intentions of the legislatures in both the parent statute and the subsidiary legislation must exist between the parent statute and the subsidiary legislation. I think the important thing stressed is that, where there were sections of the principal statute, which govern the employment and also gave the power to make regulations to another body, and they were accordingly made, those conditions of service would be regarded as a subsidiary legislation conferring the employment with statutory flavour. It was held in the leading ratio, as seen that, the intention of the legislature conferring that power in the principal statute must be given preeminence.
It would be observed that the 1999 Constitution did not directly by itself contain provisions/rules regulating the employment of civil/public servants in Nigeria, yet the regulations made by the Federal Civil Service Commission and the Federal Judicial Service Commission on appointment and discipline of officers of the Federal Civil Service and those of the Federal Judicial Service have always enjoined statutory flavour. It merely granted powers to the Civil Service Commission and the Federal Judicial Service Commission to appoint and discipline staff and gave powers to the Commissions to make rules to regulating their own procedures, and in furtherance of these powers thereto and sections 153, 158, 160(1) and paragraphs 11(1) & 13(c) of the Third Schedule of the 1999 Constitution, made the Federal Civil Service Regulations and the Federal Judicial Service Commission Regulations 2010. In the same vein the Independent National Electoral Commission (INEC) the Defendant in this case has power to make rules and regulations to govern issues of appointment, promotion and discipline of its staffers. By exhibit CW2H the Defendant has made the rules and regulations for appointment, promotion and discipline of its members of staff. See Chapter one on appointment, chapter two on promotions/advancements and chapter three on discipline. Therefore, exhibit CW2H was made in compliance and powers conferred on the Defendant by sections 153, 158 and 160 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and sections 8(3) and 153 of the National Electoral Act 2010, as amended. This means that exhibit CW2H having been made by the Defendant pursuant to Constitutional and Statutory provisions has vested in the employees of the Defendant employment with statutory flavor which is above ordinary contract of master and servant relationship.
For the National Electoral Commission Rules of Procedure 2014, they are rules made pursuant to section 160(1) of the Constitution to generally make provisions for rules for procedure to be followed by the Defendant in carrying out its mandate as given to it by the Constitution and the Electoral Act as amended.
It is clear the two regulations exhibit CW2H and exhibit G are by law subsidiary legislation which they are laws made by the authority of a parent of donating legislation. They therefore have force of law.
It is to be noted that the provisions of exhibit �G� are general in nature as it contains and applies to all the activities of the Commission. While exhibit CW2H is a specific provision made to govern only issues of staff condition of service (employment). The counsel for the Defendant has argued that there is implied repeal of the provisions of exhibit �CW2H�, since exhibit �G� is later in time. While the counsel for the Claimants insisted on the applicability of exhibit �G� to the disciplinary proceedings that led to the disengagement of the Claimants from service. I have earlier in this judgment stated that repeal must be explicit or implied where the two legislation in question cannot be reconciled. The situation in this case is that these two subsidiary legislation can co-exists with each other and they are not irreconcilable to make one to be impliedly repealed. In my view the two exhibits CW2H and G, are valid and subsisting none has been impliedly repealed by the other. This view is supported by the title of each of the exhibits. Exhibit CW2H is condition of service while exhibit G is Rules of Procedure.
In law a special and earlier legislation exhibit CW2H in this case derogate from subsequent general legislation which in this case is exhibit �G� this is in line with the trite principle of law expressed in the latin maxim �generalia specialibus derogant i.e special things derogate from general things�. See AG OGUN STATE & ORS. V AG OF THE FEDERATION (2003) FWLR (Part143) 206, EDET AJPAN V THE STATE (1986) 3 NWLR (Pt.27) 225, MADUMERI & ANOR V OKWARA & ANOR. (2013) JP 35872(SC), INDEPENDENT TELEVISION/RADIO V EDO STATE BOARD OF INTERNAL REVENUE SERVICE (2014) JLP 39 (CA)769.
Applying the above principle of law to the issue of which between exhibit CW2H and exhibit G, is applicable to the employment of the Claimants, I shall without any fear of contradiction state that exhibit CW2H is the appropriate instrument that can be legally be used in determining employment of the Claimants.
The provisions of Article 27.1 of exhibit �G� which stated the function of the Appointment Promotion and Disciplinary Committee (APDC), clearly support my conviction that exhibit CW2H is the appropriate document to govern the disciplinary action against employees of the Defendant including the Claimants in this case. The function of APDC is to exercise oversight on Senior Staff Personnel/Human Resources Matters, including vacancies recruitment of staff, assessment of Senior Staff for promotion and discipline, as well as other matters related to Senior Staff Establishment and discipline. It receives report about Senior Staff misconducts, investigates them and recommends discipline measures to the commission in accordance with existing regulations. It also receives appeals from disciplined staff. In addition the committee advises the Commission on regulations for the discipline of Senior Staff. The committee also has the power to receive review and examine all disciplinary cases referred to it by the Commission or any senior member of its staff and make appropriate recommendations to the Commission. The provisions goes to show that exhibit CW2H is recognize by this provisions since the work of the Committee is to be based on existing regulation and the only existing regulations is exhibit CW2H.
Furthermore, when the real purport of the word �oversight� is taken into consideration, it will be correct to insist that the work of the APDC is to oversee, supervise the work of the SSD& WC as assigned to it by the condition of service Exhibit CW2H and not to usurp the function of SSD& WC.
Having dealt with the appropriate regulations to be used in determining the employment of the Claimants, what is to be considered is whether the disciplinary action taken against the Claimants in determination of their employment with the Defendant followed due process i.e in line with the Staff Condition of Service exhibit CW2H.
The counsel for both parties are at ad idem, that in determining contract of employment with statutory flavor compliance with the procedure laid down in the condition of service is mandatory any deviation may render the exercise futile. See SHITTA-BEY V FCSC (supra), FCSC V LAOYE (supra), EPEREKU V UNIVERSITY OF LAGOS (supra), CBN V IGWILO (Supra), BANGBOYE V UNIVERSITY OF ILORIN (supra), OLORUNTOBA-OJU V UNIVERSITY OF ILORIN (supra), COMPTROLLERGENERAL OF CUSTOM V COMPTROLLER GUSAU (supra).
The Claimants have in their pleadings, evidence in chief and witness statements on oaths stated that the Defendant never tried them before the appropriate Disciplinary Committee. According to the Claimants by the conditions of service being senior staff of the Defendant they are to be tried on discipline before the Senior Staff Discipline and Welfare Committee SSD & WC), and not by Appointment, Promotion and Disciplinary Committee set up under exhibit �G�. Exhibit �F� which is the report of the Disciplinary proceedings against the Claimants clearly shows that when the pictures of the 2^nd and 3^rdClaimants were discovered to be making round in the internet on line, the 1^st, 2^nd and 3^rdClaimants were issued with queries on the picture showing them registering prominent person in unauthorized place. The queries were immediately replied by the Claimants. See exhibits CW2D, CW2E, CW3D and CW3E. Upon receipt of the replies to the queries, a committee was set up to investigate the Allegations of registration at un-authorised center. The Three Man Panel invited five people which included the claimants for the investigations. The Claimants honoured the invitation of the Panel. See pages 1-19 of exhibits CW1H and F.
Vide exhibits CW1D and E1-3, the Claimants along with nine other members of staff were invited to appear before Appointment, Promotion and discipline Committee in furtherance of the inquiry into alleged double registration of the Governor of Kogi State. The report of the Appointment, Promotion and Disciplinary Committee, (APDC) is at pages 20-26 of exhibits CW1H and F, respectively. The APDC Committee in its report recommended that the 2^nd and 3^rdClaimants should be further investigated on serious misconduct. While the 1^st Claimant was asked to proceed on retirement.
Based on the recommendations of the APDC fact finding Committee the Claimants were issued with queries dated 6/11/17. The queries and answers to the queries were tendered and admitted in evidence and marked as exhibit D1-6. See also exhibit CW1E, CW1F, CW2F, CW3D and CW3E. Upon receipt of response to the queries a Disciplinary Committee was set up to try 2^nd, 3^rd and one Abubakar Lawal for serious misconduct. The report of the Disciplinary Committee is at pages 40-45. The Disciplinary committee at the end of its assignment recommended the dismissal of the 2^nd and3^rdClaimants from the service of the Defendant. The recommendations were accepted and given effect as per exhibit F13.
It is to be noted that the first committee that sat in Lokoja which the claimants appeared and made representations was a fact finding Committee at the State level. Likewise the APDC fact finding committee, which recommended that 2^nd and 3^rd Claimants and one Lawal Abubakar be tried for serious misconduct. These Committees not being a court of law all that is required is for them to act fairly that is to say give the Claimants opportunity of making representation and allowing them to cross examined witnesses that testifies in the course of the enquiry. See HART V THE MILITARY GOVERNOR OF THE RIVERS STATE & ORS. 1976 11 SC REPRINT 109, 1976 LPELR-1355(SC). From exhibit CW1H and F the Claimants were given fair hearing they made representation. There is nothing indicating that the Committees took evidence from anybody or persons apart from the representation of the people that were investigated. The conduct of the Committee has not breached the rule of fair hearing.
Now the relevant provisions that make provision for discipline will be examined to see whether the employment of the Claimants were properly determined in accordance with the statutory provisions regulating discipline of staff of the claimant�s cadre. The claimants have pleaded that they appeared before the appointment, promotion and Disciplinary Committee which is not the Committee provided for by the Staff Conditions of Service exhibit CW2H. The Defendant on the other hand argued that the only standing Committee for discipline is Appointment, promotion and Discipline committee (APDC) which was established under exhibit �G�.
I have in the early part of this judgment found that exhibit CW2H is the applicable Rules and Regulations to be considered in determining this suit. I referred to Chapter Three of exhibit CW2H, which made ample provisions for Discipline. The provisions of Regulation 3.01 and 3.07 of Chapter Three of Staff Conditions of Service hasdisciplinary power over employees on grade level 07 and above on the Defendant. Recommendations for disciplinary actionin respect of senior staff shall be made to the Defendant by the Senior Staff Discipline and Welfare Committee (SSD & WC). What this means is that for any disciplinary action to be valid must be based on recommendations of the SSD&WC for senior officer like the Claimants in this case. The provisions of Regulation 3.19 makes provisions for the steps to be followed to discipline members of staff of the Defendant. it provides as follows:-

Section 3.19 titled Disciplinary Procedure read thus:

�An employee may be dismissed/terminated or compulsory retired on the recommendations of the appropriate committee and in accordance with the following disciplinary procedure unless otherwise provided in the Condition of Service:

The Commission shall set up a committee to investigate the offence (s) committed by an employee.

(b) An employee shall be notified in writing of the offences for which action is taken.

An employee shall be called upon to state in writing, prior to the day appointed for hearing of the case (which day must allow a reasonable interval) any grounds upon which he relies to exculpate himself.
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An employee shall be informed when his case will be brought before the Committee. He shall be required to appear before it and entitled to call witnesses. Failure to appear shall not invalidate the proceedings of the committee.
Where an employee submits his representation and the committee is not satisfied that he has exculpated himself, it shall proceeding of the committee
Where an employee submits his representation and the committee is not satisfied that he has exculpated himself, it shall proceed accordingly.
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Upon considering the representation of an employee and the Committee is of the opinion that the employee does not deserve to be dismissed, but the facts of the case disclose grounds for requiring him to retire, it shall direct accordingly.
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Upon considering the report of the committee together with all evidence and material documents relating to the case, the Commission is of the opinion that the employee shall be dismissed, such action shall be taken immediately.
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The assertions of the Claimants that they did not appear before the appropriate Committee i.e Senior Staff Discipline and Welfare Committee was not denied by the Defendant. Rather the Defendant�s answer was that they appeared before the Appointment Promotion and Discipline Committee, which is the only standing Committee of the Defendant on discipline. This means that the Defendant does not have any other Committee apart from the Appointment, Promotion and Discipline. The Defendant also argued that the Claimant is duty bound to prove that there is another Committee. The Defendant by this contention seems to be abdicating the burden of proof imposes on it in proof of its defence. In law he who asserts the positive has the burden of proof. See sections 131 and 132. VEEPEE INDUSTRIES LIMITED V COCOA INDUSTRY LIMITED (2008) NWLR (PT.1105) 486, FAJEMIROKUN V GB NIGERIA LIMITED (2009) 5 NWLR (PT.1135) 588. The Defendant has failed to discharge the burden on it as it has not established before the Court by cogent and compelling credible evidence that there was amendment of exhibit CW2H where Chapter three that governed discipline was repealed. It has not also been asserted that Chapter three has been amended to incorporate provisions of exhibit G to make APDC the appropriate Committee to deal with discipline of staff. The provision of exhibit G in so far as it relates to disciple only serve as oversight function and no more. What seems solididly established is that exhibit CW2H (condition of Service) was made to regulate appointment. Promotion and discipline of members of staff of the Defendant. while exhibit G was meant to regulate procedure of the Defendant in carrying out its mandate.
The Defendant having admitted trying the Claimants before the Discipline Committee as shown at pages 40 � 45 of exhibits F and CW1H, has admitted infraction of the provisions of Chapter 3.7 and 3.19 of the Staff Conditions of Service. This means that the determination of the employment of the Claimants did not follow due process. It was in flagrant violation of exhibit CW2H. Therefore, it is unlawful since their employment has statutory flavor.
There was no effective denial of the averments made by the claimantsthat they were not tried before the appropriate Disciplinary Committee. Instead, the Defendant merely set up a defence of having complied with extant Rule which has not been proved before the Court as there was no evidence that exhibit G governed discipline of staff. The mere fact that the Claimants appeared before unrecognized committee clearly shows breach of procedure as provided by chapter three of the condition of service exhibit CW2H.
There is no doubt that the Claimants were queried invited to appear before various Committee which they did as shown by exhibit F and CW1H. But, the Committees were not the appropriate Committees they were by the conditions of service to appear before. This shows that the Claimants were never tried. Since the Claimants did not appear before the appropriate Committee it means the requirement of fair hearing has also been breached.
The law is well settled that, where a statute or subsidiary legislation directs that an act must be done in a particular way, and there is denial that it was not so done, the person who is burdened with the duty to do the act must prove proper compliance with the law and the means by which this was done. Since the disengagement of the Claimants was done in violation of the law the argument that there was compliance goes to no issue. See YUSUF V ADEGOKE & ANOR. (2007) LPELR-3534 (SC) 26, B-C.
The APDC committee does not have power to make recommendations that ought to be made by the SSD & WC. The power of APDC must be exercise in line with its mandate of oversight. There is nothing that excuses it from following the prescribed method by which appointment of a senior staff could be terminated as spelt out in Chapter Three of exhibit CW2H. The Committee would do its work and make recommendations while the procedure prescribed for termination would subsequently be followed to terminate the appointment of those indicted by the said Committee.
The APDC Committee of exhibit G did not provide for discipline and welfare of staff of the Defendant as prescribed under section 8(3) and 153 of the Electoral Act 2010 as amended. It rather vests the Committee with oversight activities. See Exhibit G. In any event, Exhibit G could not have made regulations to regulate the employment and discipline of staff, as it is meant to regulate procedure of activities of the Defendant. It is not a body empowered in that behalf. To provide for discipline and welfare, is to make rules and regulations prescribing offences and punishments and, how such offences are to be tried and how to award punishments. This is exactly what the Defendant did in exhibit CW2H. Thus, exhibit G is totally irrelevant to the case before the Court. The Committee before whom Claimants appeared is not the Committee mandated by Chapter 3.07 and 3.19 to preside on the discipline of the claimant. Under these provisions, the claimant must be issued a query, which states in writing the grounds on which it is proposed to terminate his appointment. He must be given opportunity to respond in writing to these allegations; and must also be given opportunity to appear before a Disciplinary Committee investigating his matter.
The claimants showed in their pleadings and evidence before the Court that, Chapter 3 was breached in determining their appointment. The defence has no answer to this. It is to be noted even in exhibit F reference were made to exhibit CW2H. The defendant�s counsel�s justifying the termination of appointment of the claimants and the placement of reliance now solely on exhibit G is an abandonment of the case of the defence and embarking on a voyage of his own. Counsel cannot go beyond his brief as contained in the pleadings and evidence adduced at trial. It also means that, counsel was merely approbating and reprobating on the need to comply with the condition of service in dismissing the claimants from service and the law does not allow this. See JADESIMI V OKOTIE-EBOH, (2004) 18 NWLR (PT.905) 242, (2004) LPELR-2502(SC), ABEKE V ODUNSI & ANOR. (2013) LPELR-20640(SC), EZOME V AG BENDEL STATE (1986) 4 NWLR (PT.36) 448, OSUJI V EKECHA (2009) 10SCM 72.
Having held that the case of the claimants succeeds, it follows that claimants must be entitled to some reliefs. Where, in an employment clothed with statutory flavour, a court holds that the employment was unlawfully determined; the claimant must be entitled to reinstatement and payment of arrears of salaries from the date of the unlawful termination till actual reinstatement, as it is deemed that, he never left service. See COMPTROLLER GENERAL OF CUSTOMS & 3 ORS. V COMPTROLLER GUSAU [supra], and NEW NIGERIA NEWSPAPERS LIMITED V AYOTEBI (2013) LPELR-21489 (CA) 41, A-B.
In view of the foregoing, the Claimants are entitled to be reinstated back to their employment. For avoidance of doubt the orders of the court are:
1. It is hereby declared that the defendant�s compulsory retirement of 1^st Claimant is illegal and unlawful.
2. The dismissal of the 2^nd and 3^rd Claimants is illegal and unlawful for having been done in breach of the laid down procedure.
3. The compulsory retirement of 1^st Claimant as well as dismissal of the 2^nd and 3^rd Defendants are hereby set aside.
4. The claimants are hereby reinstated to their respective positions as staffers of the defendant.
5. The defendant is consequently hereby ordered to pay to the Claimants all their entitlements due to them by virtue of their said position including all salaries and allowances owed them from the said 4/1/18 till compliance with this judgment.
6. Cost is assessed at N300,000.00 [Three Hundred Thousand Naira only] is awarded in favour of the claimants and against the defendant.
7. The defendant is hereby given a grace of 30 days from the date of this judgment within which to comply with the judgment of the Court.
8. Judgment is entered accordingly.