Alexander Friday Eze -VS- Ebonyi State Judicial Service Commission

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 8thFebruary 2019 SUIT NO. NICN/ABK/06/2018

BETWEEN

ALEXANDER FRIDAY EZE … CLAIMANT

AND

EBONYI STATE JUDICIAL SERVICE COMMISSION … DEFENDANT

REPRESENTATION:

Michael OgwuduOdoEsq. with Aliyu Mohammed AbdulhameedEsq., Parkins Chidi Okoro UzorEsq., Nwali Anthony Eze Esq., Okechukwu Harrison UmaziEsq. and Osani Chris Esq.for the Claimant

NwannekaChukwuba [Mrs.], Chief State Counsel for the Defendant

JUDGMENT

This action was commenced by a Complaint dated20th September 2018 wherein the Claimant claimed against the Defendant as follows:

A declaration that the dismissal of the Claimant from the service of Ebonyi State Judicial Service Commission as contained in the Dismissal Letter dated 30/4/2018 based on allegation of gross misconduct for which he had earlier been punished by suspension without salary is unlawful and amounts to double punishment for the same misconduct.

An order setting aside the Claimant’s dismissal from service.

An order directing the Defendant to pay to the Claimant all his salaries, emoluments, benefits and grant to the Claimant all his rights and privileges including promotions, etc. which ought to have accrued to him if his service were [sic] not interrupted by virtue of his dismissal.

The sum of five million naira [N5, 000,000.00] being general damages for unlawful dismissal from service.

The Claimant filed with the complaint a statement of facts, list of witnesses, statement on oath of the Claimant, list of documents to be relied on at the trial and copies of the documents. Upon receipt of the originating processes, the Defendant entered appearance and filed its defence processes. The Claimant filed a reply to the statement of defence together with his further statement on oath and copies of additional documents dated 30th October 2018. By leave of Court granted on 13th November 2018, the Claimant filed additional document and further additional statement on oath. The Defendant was also granted leave to amend its statement of defence and call additional witness. Trial commenced on 31stOctober 2018 and was concluded on 13th November 2018. The Claimant testified for himself and tendered 13 exhibits, exhibits A to N in proof of his claim. Exhibit A is the appointment letter, exhibit B is promotion letter, exhibit C is posting letter, exhibit D is query, exhibit E is his answer to query, exhibit F is letter of suspension, exhibit G is lifting of the suspension, exhibit H is invitation to disciplinary committee, exhibit J is dismissal letter, exhibit K is Claimant’s Solicitors’ letter to the Defendant, exhibit L is letter captioned ‘Re: Investigation Activities’ addressed to the Claimant, exhibit M is copy of Claimant’s hand over note and exhibit N is copy of Public Service Rules 2008. The Defendant called two witnesses and tendered 5 exhibits, exhibits DW1A to DW1E. Exhibit DW1A is the letterfrom the Chief Registrar to the Defendant on staff misconduct, exhibit DW1B is report of the 3-man disciplinary committee, exhibit DW1C is the dismissal letter, exhibit DW1D is the personal emoluments record of the Claimant and exhibit DW1E is the minutes of the Defendant’s 104th Regular meeting approving the report of the 3-man disciplinary committee. The case was thereafter adjourned for adoption of final written addresses. Learned Counsel for the Defendant, Mrs.Chukwuba, adopted the Defendant’s final written address dated 28th November 2018 and the reply on points of law filed on 25th January 2019 as the Defendant’s argument in support of the defence. Learned Counsel for the Claimant, Mr. Osani, also adopted the Claimant’s final written address dated 4th January 2019 as his argument in support of the claim. The case was consequently set down for judgment.

COURT’S DECISION

The Claimant was employed on 22nd October 1990 as Clerical Assistant Grade level 03 and rose to Registrar Grade Level 07 on 1st January 2007.He was posted to High Court,Ohaukwu Judicial Division in Ebonyi State and worked there as Court clerk and Interpreter until his transfer to Magistrate Court, Iboko on 4th May 2016. After his transfer, the Claimantlingered at Ohaukwu High Court because the presiding Judge, Hon. Justice H. A. Njoku, promised to speak with the Chief Judge concerning his transfer. On 10th April 2017 the Chief Registrar of Ebonyi State Judiciaryserved the Claimant a query for his refusal to resume at Magistrate Court, Iboko. He answered the query but his answer was considered unsatisfactory, as a result he was placed on three months’ suspension without paywith effect from 1st May 2017.He was recalled from suspension on 31st July 2017 anddirected to proceed to Magistrate CourtIboko.He compliedwith the directive buton 13th December 2017, he received invitation to appear before a Disciplinary Committeeconstituted by the Defendant to investigateallegation ofgross misconduct against him. The Claimant appeared before the Committee on 18th December 2017 which found him culpable and recommended for his dismissal from service. At its 104th Regular meeting held on 26th April 2018, the Defendant approved the recommendation of the Disciplinary Committee and by letter dated 30th April 2018 dismissed him from service hence this action. The Defendant raised three issues for determination in its final written address, to wit: whether in view of his reasons for his [sic] refusal to go on transfer, his dismissal is proper? Issue two is whether his dismissal from service amounts to double punishment? And lastly, whether the Claimant is entitled to any compensation of any sought [sic] having regards [sic] to the gravity of his offence in civil service rule which guides his job?Canvassing issue one, learned Counsel referred to paragraph 13 of the statement of facts and paragraph 7 of reply to statement of defence andexplained that common sense demands that a staff reports at his new duty post while other arrangements are made and failure to do that amounts to misconduct under the civil service rule and could lead to termination or retirement. Learned Counsel referred to definition of serious misconduct in the Civil Service Rules to include absence without leave and argued that the Claimant has violated ‘the Rule which guides his job and cannot be excused by the private arrangement he had with the Presiding Judge which is not known to law.’ It was also argued that for the Claimant to refuse to proceed on transfer and absent himself from duty without leave amounted to serious misconduct and in view of that his dismissal is proper. On issue two, learned Counsel contended that the Claimant’s suspension is not double punishment rather one of the disciplinary procedures for serious misconduct as provided in Rule 030403. It was further argued that under Rule 030406 suspension should not be used as a synonym for interdiction, but shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he should forthwith be prohibited from performing his duties pending investigation into the misconduct. She submitted that the suspension was in line with this Rule and the Claimant received his salary up to the time he was dismissed and as such cannot be said to have been punished twice for the same offence. On issue three, learned Counsel submitted that the Claimant is not entitled to any compensation and that the punishment for ‘refusal to proceed on transfer/absent from duty without leave’ is dismissal. It was contended that the Claimant had no cogent reason for refusing for about a year to proceed on transfer having admitted disobedience to the rule, though not deliberate, and ignorance of the law is no excuse.

The Claimant raised four issues for determination in his final written address, namely: whether the alleged offence levelled against the Claimant by the Defendant upon which theClaimant was dismissed from service is not tainted with manifestinconsistencies vis-à-vis the provisions of Sections 3 and 4 of the Public service Rules, 2008? Issue two is whether the alleged offence for which the Claimant was wrongfully dismissed by the Defendant is not the same with the alleged offence for which the Claimant was previously punished with three months’ suspension without salary, which amounts to double punishment? Issue three is whether the proceedings and findings of the disciplinary committee of the Defendant against the Claimant was not in gross violation of the express provisions of the Public Service Rules, 2008? Issue four is whether the Claimant is not entitled to the grant of his reliefs in this suit in the circumstances? On issue one, learned Counsel explained that the Claimant was queried for refusal to proceed on posting/transfer but suspended for alleged gross misconduct and that the offence of refusal to proceed on transfer or to accept posting is categorized under “Misconduct” which carries a punishment of termination, retirement, reduction in rank, withholding or deferment of increment etc. by virtue of Rule 030301 sub-rule [b] of section 3 of the Public Service Rules, 2008. But in a sharp twist of event, the Defendant wrongly termed the alleged act of the Claimant as “gross misconduct” in its letter of invitation to appear before a disciplinary committee [exhibit H] and in the report of the 3-man committee it was categorized as a case of insubordination which amounted to gross misconductfor which he was found guilty. Learned Counsel contended “that none of the alleged acts [refusal to proceed on transfer/posting or insubordination] for which the Claimant was purportedly investigated by the disciplinary committee and subsequently dismissed amounts to serious/gross misconduct under Section 4 of the Rules, let alone warranting a dismissal” and referred to Iderima v. R.S.C.S.C. [2005] 16 NWLR [pt. 951] 378 at 398. It was submitted that the inconsistencies surrounding the nature of the alleged misconduct against the Claimant clearly beclouded the findings and resolution of the Defendant in arriving at a wrong decision of dismissal from service under Section 4 Rule 030401 of the Rules, instead of other milder punishments, if at all, as contained in Section 3 Rules 030301 and 030305 of the Rules and referring toKayili v. Yilbuk [2015] 7 NWLR [pt.1457] 26 at 40 urged the Court to hold that the alleged act of misconduct for which the Claimant was dismissed is tainted with manifest inconsistency, which does not conform with the express provisions of the Rules. On issue two, learned Counsel contended that the alleged act of misconduct for which the Claimant was dismissed by the Defendant is the same misconduct for which he was punished with three months suspension without salary. He explained that the Defendant could not justify the two punishments meted to the Claimant over the same misconduct, hence the denial of obvious facts. He argued that DW1, DW2 and members of her disciplinary committee would not have recommended any other punishment against the Claimant “if they accept the truth of being aware of the previous punishment of three months suspension without salary meted on [sic] the Claimant over the same alleged misconduct.” He attributed the Claimant’s punishment to his unfavourable union activities and referred to exhibit L, which is a letter titled Re: Investigation Activities dated 11/5/2017. It was further argued that the Claimant’s dismissal was premeditated and the disciplinary committee was only to fulfil all righteousness. He submitted that the three months suspension without salary meted to the Claimant was not done for the purpose of investigation whatsoever, but rather as a full punishment to the Claimant for the alleged misconduct and urged the Court to hold that the subsequent dismissal of the Claimant by the Defendant over the same misconduct amounts to double punishment, hence null and void.

On issue three, it was argued that the disciplinary procedure to be adopted in either case of misconduct or serious misconduct is provided for in Rule 030307[i-xiii] of the Rules which was violated by the Defendant in arriving at a verdict of dismissal of the Claimant. He referred to exhibits D, E, F and G and contended that the sequence of events is in compliance with Rule 030305 of the Rules and the Claimant was properly punished and the process ordinarily should have ended there, but that was not the case as the Claimant received an invitation on 13th December 2017 to appear before a disciplinary committee constituted by the Defendant to look into his gross misconduct. He also argued that there is nothing on record to show that the Claimant committed any act of gross misconduct to warrant an invitation to the disciplinary committee. There is also nothing on record to show that the Claimant was issued a query for any act of gross misconduct to invoke the laid down procedures in Rule 030307 [i-xiii] of the Rules. He concluded that what the Defendant succeeded in doing was to commence the procedure of Rule 030307[v] from the already concluded procedure of Rule 030305 where the Claimant was punished with three months suspension without salary. He submitted that pursuant to Rule 030307[i-xiii] and Section 4 of the Rules, the Defendant is the proper authority to initiate and issue query on the Claimant and not the Chief Judge or the Chief Registrar and same cannot be delegated whatsoever and relied on the cases of Federal Civil Service Commission &Ors. v. Laoye [1989] 2 NWLR [pt.106] 652 at 683, Iderima v. R.S.C.S.C. [supra] at 397. It was further submitted that the procedures laid down in Rules 030305 and 030307 are separate and distinct and cannot be merged in arriving at a decision to dismiss the Claimant. He contended that assuming the procedure adopted by the Defendant is valid, the Defendant flagrantly violated sub-rule vii of Rule 030307 which requires the Claimant to put questions to any witnesses that appeared at the disciplinary committee, and referred to S.C., Cross River State v. Young [2013] 11 NWLR [pt.1364] 1 at 28 and Iderima v. R.S.C.S.C. [supra] at 399 and urged the Court to hold that the dismissal of the Claimant from service by the Defendant was in gross violation of the provisions of the Public Service Rules, 2008. Learned Counsel also urged the Court to resolve issue four in favour of the Claimant in view of his arguments on the preceding issues. He explained that majority of the oral and documentary evidence adduced by the Claimant were not challenged by the Defendant. He submitted that from the facts and circumstances of this matter the dismissal of the Claimant is null and void and of no effect whatsoever and referred to Iderima v. R.S.C.S.C. [supra] at 403.By way of reply on points of law learned Counsel for the Defendant argued that there is no inconsistency or contradiction in the Defendant’s statement because the Claimant’s initial offence is refusal to accept or proceed on transfer which is one of the offences captured under [section] 3 of the said rules. In addition, he refused to obey lawful order which is another offence under Rule 3 and he never reported to his new duty post for one full calendar year which amounts to absence from duty without leave and the punishment is dismissal. It was contended that the argument of counsel on the impropriety of the interchangeability of the two terms by the Defendant is misconceived in view of the entirety of the Claimant’s conduct and the provision of the Rules guiding his employment and that the interchangeability arose from the fact that he committed offences under sections 3 and 4 of the Rules. On issue two, it was argued that the Claimant has not suffered any double jeopardy or punishment; and finally, that the proceedings and findings of the disciplinary Committee are not in gross violation of the Rules.
I have considered the processes filed in this suit and submissions of learned Counsel for the parties.From the pleadings and evidence, the seven issues for determination formulated by learned Counsel for the parties can be subsumed under one issuefor determination, to wit: whether the Claimant has proved his case on a preponderance of evidence to entitle him to judgment? The law is trite that the burden of proof is on the Claimant who alleges wrongful dismissal and he discharges this by setting out the terms and conditions of his contract of service and the manner in which it has been breached. See sections 131[1] and 133[1] of the Evidence Act 2011,United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21 and Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31.It is equally the law that a Claimant who seeks a declaratory relief has the burden of establishing his entitlement to the relief. Evidence which will support a legal right or claim must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the absence or weakness of the defence. See Chief Mohammed Shittu & 2Ors. v. Chief James Olawumi& 4Ors. [2011] LPELR-3955[CA] at pages33-34.Parties are in agreement that the Claimant was a Registrar on Grade level 07 and that his employment is regulated by the Public Service Rules 2008. The Claimant’s employment admittedly enjoys statutory flavour and any termination or dismissalfrom service must be in accordance with the Public Service Rules 2008. I have earlier in this judgment set out the facts of this case. The Claimant was transferred vide exhibit C from the High Court, Ohaukwu Judicial Division to Magistrate’s Court Iboko on 4th May 2016 and was to resume at the Magistrate’s Court Iboko on 6th May 2016 but he did not resume untilAugust 2017 after his recall from suspension. Sequel to his refusal to proceed on transfer he was queried and he answered the query. The answer was considered unsatisfactory as a result he was placed on three months’ suspension without pay. The Claimant contends that having served the suspension, the subsequent disciplinary proceedings against him and eventual dismissal amounted to double punishment. This is issue two of the Claimant and Defendant’s issues for determination. A resolution of this issue will turn on the provisions of the Public Service Rules, 2008. The relevant provisions on suspension are Rules 030304[d] and 030406. Rule 030304[d] provides that “At the appropriate point in the investigation, the officer may be suspended in accordance with Rule 030405.” Rule 030406 provides:

“Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office [if within his/her delegated powers] shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument.”

The power to suspend an officer under investigation is exercisable only where a prima facie case, the nature of which is serious, has been established against him. The word ‘serious’ in Rule 030406, in my view, must be read to mean serious misconduct which has been defined in Rule 030402. By the combined effect of Rules 030304[d] and 030406, the Defendant or the Chief Judge or Chief Registrar can suspend the Claimant if a prima facie case of serious misconduct is established against him. The Chief Judge and Chief Registrar, in my considered opinion, come within the meaning of Permanent Secretary/Head of Extra-Ministerial Office in Rule 030406.At any rate, it is not the contention of the Claimant that the Chief Judge or Chief Registrar cannot suspend him. The Public Service Rules 2008 makes a distinction between interdiction and suspension. While a staff on interdiction is entitled to 50% of his emoluments [see Rule 030404[iii]], a staff on suspension is not entitled to any emolument [see Rule 030406]. To that extent, the suspension of the Claimant without salary did not amount to full punishment for his alleged offence. His suspension is in continuation of disciplinary proceedings initiated against him and I so hold.

The word suspension is defined in the Black’s Law Dictionary, 10thedition by Bryan A. Garner at page 1676 to include ‘the temporary deprivation of a person’s powers or privileges’. See University of Lagos & 2Ors. v. Professor Luke Uka Uche [2008] LPELR-5073[CA] at page 31 and Independent National Electoral Commission v. Chukwuka C. Okoronkwo [2009] LPELR-4321[CA] 18-19. In Osamata Macaulay Adekunle v. United Bank for Africa Plc [2016] LPELR-41124[CA] 62Okoronkwo, J.C.A., posited that:

“Suspension in contracts of employment operates to suspend the contract rather than terminate the contractual obligation of the parties. It is a step taken in the interest of the employers’ business when certain issues of misconduct are being looked into and where the misconduct is proved, suspension consequent upon it, in my view relates back to the date of the misconduct.”

The Supreme Court, per Adekeye, J.S.C., puts the effect of a suspension beyond peradventure in Bernard OjeifoLonge v. First Bank of Nigeria Plc [2010] 2-3 SC [pt.111] 61 at 129-130. The learned Jurist held:

“Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.”

From the above, it is clear that suspension does not operate as punishment for the misconduct alleged against the employee but a desirability occasioned by the misconduct in the interest of the employer’s business and, in the instant case, in the public interest. I therefore resolve issue two of the Claimant’s issues for determination against the Claimant and hold that although the offence for whichthe Claimant was dismissed by the Defendant is the same offence for which he was suspended for three months without salary, his dismissal does not amount to double punishment. The suspension is an integral part of the disciplinary process against the Claimant which culminated in his dismissal.

The Claimant also challenged his dismissal on the ground that the disciplinary process is in breach of the Public Service Rules 2008, issues one and three of the Claimant’s issues for determination. The Claimant referred to the various offences thrown up at the various stages of the disciplinary proceeding. He was queried for refusing to proceed on transfer which was termed ‘misconduct’ [exhibit D], suspended for ‘gross misconduct’ [exhibit F], investigated for ‘gross misconduct’ [exhibit H] and found guiltyof‘insubordination to the Judiciary Authority’ [exhibit DW1B] and subsequently dismissed for ‘insubordination which is a gross misconduct’ [exhibit J]. It was contended that none of the alleged acts for which the Claimant was purportedly investigated by the disciplinary committee and subsequently dismissed amounts to serious or gross misconduct under section 4 of the Rules. I have reviewed sections 3 and 4 of the Public Service Rules 2008 and agree with the submission of learned Counsel for the Claimant in paragraph 4.7 of his final written address that ‘misconduct’ under section 3 of the Public Service Rules is quite different from ‘serious or gross misconduct’ under section 4 of the Public Service Rules and cannot be used interchangeably. The offences specified in section 3 are different from offences specified in section 4 and the punishment under each section is equally different. While the maximum punishment for an offence under section 3 is termination or retirement, the maximum punishment for an offence under section 4 is dismissal with its attendant consequences. It should be noted, however, that one set of facts can give rise to more than one offence. Take for instance, the Claimant’s refusal to proceed on transfer is an offence in itself under section 3. It also amounts to insubordination under section 3 and absence from duty without leave under section 4. However, in each case, the disciplinary authority must make a decision on which offence to charge the officer with and not obfuscate on the offence the officer is alleged to have committed. This is important for the following reasons. One, there is need for the officer to know what is alleged against him for the purpose of preparing his defence and, if possible, exculpating himself. See Rule 030307[i]. Two, this categorisation is important as it determines the punishment to be meted to the offender. Both the employee and the disciplining authorityshould know at a glance what the offence is and the prescribed punishment. In P. Iderima v. Rivers State Civil Service Commission [2005] 16 NWLR [pt.951] 378 at 398, cited by learned Counsel for the Claimant, Onu, J.S.C., opined that:

“This definition [of misconduct] is to guide the determination of disciplinary measures against civil servants; noteworthy among which is that misconduct must be investigated and proved in accordance with the Civil Service Rules.”

It is for this reason that I find the argument of learned Counsel for the Defendant on issue one of her reply to the Claimant’s final written address self-defeating. While the query proceeded on a good note, the letter of suspension, report of staff misconduct [exhibit DW1A], the finding and recommendation of the disciplinary committee and the letter of dismissal proceeded on a wrong footing. The Defendant and the disciplinary committee appear to misapprehend the provisions of the Public Service Rules. It is this muddling up of the disciplinary process that lets a guilty officer off the hook. The Public Service Rules define relationships in the civil service and by Rule 010101 enjoins every officer to acquaint himself or herself with its provisions. Those entrusted with disciplinary authority must familiarise themselves with the Public Service Rules and ensure full compliance with its provisions. The Public Service Rules invest in public servants a legal status higher than that of the ordinary master and servant relationship. It has the force of law and strict compliance is enjoined.See Nigerian Maritime Administration and Safety Agency v. Stephen A. D. Odey [2013] LPELR-21402[CA] at page 22, Federal Airports Authority of Nigeria v. Sylvester G. Nwoye [2013] 2 ACELR 162 at 187 and Power Holding Company of Nigeria Plc v. Mr. I. C. Offoelo [2014] 3 ACELR 1 at 19 & 21.

The Claimant’s objection is two-prong: one relates to the description of the offence and the second to non-compliance with the Public Service Rules. In respect of the first, it is clear that the Defendant was in error. In one breath the Claimant’s offence was described as a misconduct, in another breath it was labelled gross misconduct, then ‘insubordination to the Judiciary Authority’ and subsequently to‘insubordination which is a gross misconduct’.This error is also manifest in paragraphs 9, 10 and 13 of the statement of defence, which are reproduced here:

“9. The Defendant denies paragraph 15 and states that the Claimant disobeyed the rules of his job when he refused to honour his transfer.

“10. The Defendant admits paragraph 16 only to the extent that he was issued with a query dated 10th April, 2017. And this is because he absconded from his new duty post without permission from 4/5/2016 to 10th April 2017.

“13. The Defendant admits setting up a disciplinary committee when it received a report concerning the Claimant’s abscondment from duty as already averred in paragraph 11 herein and the said report of staff misconduct is hereby pleaded.”

This error was repeated in paragraphs 13 and 19 of the statement on oath of DW1. The report of staff misconduct is exhibit DW1A and it is set out here for clarity.

Evidently, there is no allegation of ‘abscondment’ in exhibit DW1A. Paragraph 1 of exhibit DW1A reads: “I write to refer to the above stated subject matter and inform you that EZE ALEXANDER FRIDAY, Registrar who was posted/transferred from High Court Ezzangbo to Magistrate Court Iboko on 4th June 2016, has refused to report to his new duty post.” Paragraph 2 reads: “Since the date of his transfer till now he has not reported to his new duty post, an act which amount to serious misconduct.” The Claimant was also not queried for ‘abscondment’ and the pleading of the Defendant and the testimony of DW1 are at variance with exhibits D and DW1A and reinforces the confusion as to the offence alleged against the Claimant and the offence for which he was investigated and eventually dismissed. This is in breach of Rule 030307[i] which provides that the query should be precise and to the point and must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. For better understanding of the disciplinary procedure, the relevant portions of the Public Service Rules 2008 are reproduced below. Rule 030302[c] provides:

“030302. – As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him/her, it shall be his/her duty to inform the officer in writing giving details of unsatisfactory behaviour and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether:

“[c] the officer has not exculpated himself/herself and deserves some punishment, in which case Rule 030304 shall apply.”

Rule 030304 states:

“030304. – [a] It shall be the duty of every officer to report any case of misconduct that comes to his/her notice to an officer superior to the officer involved.”

“[b] When an officer’s misconduct is brought to the notice of his/her superior officer, it shall be the duty of that superior officer to report it to the Permanent Secretary/Head of Extra-Ministerial Office without delay. If he/she considers it necessary that the officer should be interdicted, such recommendations shall be made in the report.”

“[c] On receiving the report, the Permanent Secretary/Head of Extra-Ministerial Office shall take action in accordance with Rule 030302 – 030306 as appropriate and, if necessary, shall interdict the officer.”

It is important to note the use of the words “as appropriate” in sub-rule c. This phrase means “as applicable”. That is to say it is not everything in Rules 030302 – 030306 that may be applicable in every given case. See the case of Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 40. Also, there is an obvious mistake in line 3 of Rule 030304[c]. The figure 030306 should read 030307 to be meaningful. Rule 030306 does not provide for the procedure for dismissal. Rule 030306 merely deals with suspension of disciplinary proceedings against a female officer who is on maternity leave. Rule 030307 prescribes the procedure which must be followed before an officer is dismissed. It is my responsibility to construe this provision in a manner that implements the legislative intention. In doing this I am obliged to correct this manifest error. Consequently, I hold the view that the Rule intended by the draftsman in Rules 030304[c], 030305 and 030403 is Rule 030307 dealing with the procedure for dismissing an officer and not Rule 030306. I find support for this position in the case of Federal Civil Service Commission & 2Ors. v. J. O. Laoye [1989] 2 NWLR [pt. 106] 652 at 682, where Eso, J.S.C., held:

“It has long been established that the legislator himself intends the interpreter of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention.”

Rule 030307 provides:

“030307. – Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule [underlining mine]:

“[i] The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point, it must relate the circumstances of the offences, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document[s] or report[s] used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to the documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself;

“[ii] The query, or preliminary letter, shall be in the format shown in Appendix II;

“[iii] If the officer submits his representations and the Federal Civil Service Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the Commission may take such action against the officer as it deems appropriate;

“[iv] If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;

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

“[vi] The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;

“[vii] Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;

“[viii] If during the course of the inquiry, further grounds for dismissal are disclosed, and the Federal Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;

“[ix] The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses;

“[x] If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

“[xi] If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;

“[xii] If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly; and

“[xiii] All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.”

The provision of Rule 030307 is mandatory. It provides that “Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule”.An officer can only be dismissed in accordance with this Rule. See Federal Medical Centre, Ido-Ekiti & 2Ors. v. Folorunso Kayode Michael [2012] LPELR-20406 [CA] 22, Federal Inland Revenue Service v. Lewu Sunday Michael [2014] All FWLR [pt.735] 362 at 378 and E. P. Iderima v. Rivers State Civil Service Commission [supra]. In the circumstance, the finding and recommendation of the disciplinary committee of the Defendant cannot stand. The offence for which the Claimant was queried is different from the offence he was investigated and dismissed. The second leg of the objection is that the proceedings and findings of the disciplinary committee of the Defendant against the Claimant was in gross violation of the express provisions of the Public Service Rules, 2008. I have reproduced Rule 030307 above. It should be noted that theprocedure prescribed in Rules 030302, 030304, 030307 are not in the alternative. These are mandatory steps that must be taken and each step precedes the other. Upon receipt of exhibit DW1A, the Defendant is required to serve the Claimant with a query in line with Rule 030307[i] and receive his response before taking a decision whether or not to set up a disciplinary panel. The steps adopted by the Defendant in this case is an aberration. The Defendant proceeded to constitute a disciplinary committee upon receipt of exhibit DW1A without following the procedure prescribed in Rule 030307. The disciplinary committee invited the Claimant, listened to his oral submission in elaboration of his written response to the query, interviewed His Lordship, Hon. Justice Njoku in the absence of the Claimant. On completion of its assignment the disciplinary committee forwarded its report to the Defendant which ratified it and dismissed the Claimant. It did not avail the Claimant of the report or afford him the opportunity of making further representation in his defence. The action taken by the Chief Registrar cannot be equated with or substituted for the steps to be taken by the Defendant, who is statutorily empowered to discipline the Claimant. SeeFederal Civil Service Commission & 2Ors. v. J. O. Laoye [supra] at pages 683 and 697. Invariably, any exercise by the Defendant of its power of discipline must comply with the provisions of Rules 030302, 030304, 030307. This procedure was not followed. Exhibit H is a mere invitation and did not specify the gross misconduct alleged against the Claimant, the Rule breached and the likely punishment. Rule 030402 provides for varying cases of serious misconduct and if the Rules are to serve its purpose, the particular misconduct alleged against the Claimant must be specified. See Federal University of Technology, Yola v. Danjuma Maiwuya& 2Ors. [2013] All FWLR [pt. 677] 753 at 764.

Rule 030403 provides that:

“Disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306.” [Underlining mine]

I observed earlier that the figure 030306 in that Rule is an error and it should properly read 030307. The operative word in Rule 030403 is “shall” which, in this context, is an imperative and does not admit of any discretion. See Rear Admiral Francis EchieAgbiti v. The Nigerian Army [2011] 45 NSCQR vol.1 388 at 433 and Veronica Nneka N. Ibeziako v. Professor Stephen M. Ibeziako [2016] LPELR-40958[CA] at pages 11-12. It is a mandatory provision and cannot be waived. Exhibit D will not sufficein these circumstances. Exhibit D, in my considered opinion, is the first step in the disciplinary process prescribed in Rule 030302. The Chief Registrar is a superior officer within the meaning of Rule 030302. As such, the Chief Registrar can, pursuant to Rule 030302, properly serve a query on the Claimant. However, this is a preliminary step and does not derogate from the responsibility of the Defendant after receipt of exhibit DW1A to comply with Rule 030307. This is so because there is nothing before me to show that the Defendant delegated its responsibility to the Chief Registrar. See Federal Civil Service Commission & 2Ors. v. J. O. Laoye [supra] at 697. In the circumstance, I resolve issues one and three in the Claimant’s issues for determination in favour of the Claimant and hold that the dismissal of the Claimant was in gross violation of the provisions of the Public Service Rules 2008.

This now leads me to the reliefs of the Claimant. Relief one seeks a declaration that the dismissal of the Claimant from the service of Ebonyi State Judicial Service Commission as contained in the Dismissal Letter dated 30/4/2018 based on allegation of gross misconduct for which he had earlier been punished by suspension without salary is unlawful and amounts to double punishment for the same misconduct. I have earlier found in this judgment that the dismissal of the Claimant after his suspension without salary does not amount to double punishment. The suspension is an integral part of the disciplinary process. This relief fails and it is dismissed. Relief two seeks an order setting aside the Claimant’s dismissal from service. This relief is dependent on relief one. The general rule is that once the principal order sought is refused, no order incidental to the principal order can be granted. See Benjamin Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] at page 29.However, I have found in this judgment that the disciplinary procedure is in gross violation of the Public Service Rules 2008. Where there is a wrong, there must be a remedy. SeeMadam AdunolaAdejumo&2Ors. v. Mr. OludayoOlawaiye [2014] LPELR-22997[SC] at page 28 and Michael Ogbolosingha& Anor. v. Bayelsa State Independent Electoral Commission &Ors. [2015] LPELR-24353[SC] at page 43. This is so even though the Claimant inelegantly presented his claims. The appropriate order to make in view of this finding is an order setting aside the entire disciplinary process, the finding and recommendation of the disciplinary committee and the letter of dismissal arising therefrom. Consequently, I make an order setting aside the Claimant’s dismissal from service and further order that the Claimant be reinstated with full benefits. In ShaiduNda Maliki v. Michael Imodu Institute for Labour Studies [2008] LPELR-8467 [CA] at page 53, Nweze, J.C.A. [as he then was] quoting Karibi-Whyte, J.S.C. in Olaniyan v. University of Lagos [1985] 2 NWLR [pt.9] 599, posited that:

“The law has arrived at a stage where the principle should be adopted that the right to a job is analogous to property. Accordingly, where a man is entitled to a particular job, I cannot conceive of any juridical reason against the view that where the termination is invalid and consequently alters nothing, a reinstatement of the employee … is the only remedy.”

See also Mrs. Akinyosoye Yemisi v. Federal Inland Revenue Services [2013] All FWLR [pt. 693] 1992 at 2016. The third relief is for an order directing the Defendant to pay to the Claimant all his salaries, emoluments, benefits and grant to the Claimant all his rights and privileges including promotions, etc. which ought to have accrued to him if his service were [sic] not interrupted by virtue of his dismissal. Based on the order for the Claimant’s re-instatement with full benefits, this relief succeeds and it is granted. Relief four is the sum of five million naira [N5, 000,000.00] being general damages for unlawful dismissal from service. It is in evidence that the Claimant was transferred and refused to proceed on transfer until he was queried, suspended and recalled from suspension. The punishment for the offence is termination of his appointment or retirement. Awarding damages to the Claimant in these circumstances will amount to gratifying the act of insubordination or condoning the Claimant’s wrong doing. While the punishment of dismissal is excessive and the disciplinary proceeding in breach of the Public Service Rules 2008, the evidence before me does not make the award of damagesto the Claimant appropriate. This relief therefore fails and it is dismissed.

On the whole, this action succeeds in part.I find and hold that the disciplinary proceedings against the Claimant is in gross violation of the Public Service Rules 2008.Consequently, Ihereby make an order setting aside the Claimant’s dismissal from service and further order that the Claimant be reinstated forthwith with full benefits. Reliefs one and four fail and are hereby dismissed. There shall be no order as to costs. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

8/2/19