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ASP OLOKE RICHARD -VS- POLICE SERVICE COMMISSION & 3 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

BEFORE HIS LORDSHIP,

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

Date: 31ST MAY 2018                                          SUIT NO. NICN/LA/434/2013

BETWEEN:

ASP OLOKE RICHARD———————————————————CLAIMANT

 

AND

  1. POLICE SERVICE COMMISION
  2. THE NIGERIA POLICE FORCE ———————————–DEFENDANTS
  3. THE INSPECTOR GENERAL OF POLICE
  4. ATTORNEY GENERAL OF THE FEDERATION

 

REPRESENTATION:

  1. A. A. MOHAMMED, ESQ., FOR THE CLAIMANT.
  2. T. A. MOKUOLU, ESQ., (SENIOR STATE COUNSEL, OFFICE OF THE ATTORNEY OF THE FEDERATION), FOR THE 3RD AND 4TH DEFENDANTS.
  3. NO LEGAL REPRESENTATION FOR THE 1ST AND 2ND DEFENDANTS.

JUDGMENT

The claimant in this suit commenced this action vide a General Form of Complaint dated 12th August 2013. The said complaint was filed on the same date. The reliefs sought by the Claimant against the Defendants are:

  1. A declaration that the purported dismissal of the claimant from his employment with the 1st defendant was wrongful and done mala fide and without just cause and in utter disregard to the terms and conditions of service of the defendants.
  2. A declaration that the dismissal by the defendants’ of the claimant’s appointment as a police officer in the service of the defendants is illegal, ineffectual and unconstitutional having been done in the breach of the claimant’s rights to fair hearing and rules and regulation governing his contract of service with the 1st defendant.
  3.  A declaration that the 3rd defendant’s letter dated the 29th April 2013which was served on the claimant on the 21st June, 2013 through the commandant, the Nigeria Police Force, Police College Ikeja, which purportedly dismissed the Claimant from service and employment of the 1st Defendant, is null and void and of no effect for being done without due process of law.
  4. A declaration that the 1st defendant’s letter no. PSC/C/48/VOL. V/10/6 dated 10th April, 2013 which was never served on the claimant but allegedly containing the decision of the 1st defendant to dismiss the claimant from the employment of the 1st defendant, is illegal, ineffectual and unconstitutional and done in gross breach of the claimant’s right to fair hearing, rules and regulations governing the Claimant’s contract of service with the 1st defendant.
  5. A declaration that the defendants’ failure and refusal to produce witnesses and the evidence against the claimant for purposes of knowing and controverting the evidence against him for cross examination and defence and their refusal to allow the claimant to call witnesses in his defence before dismissing him are unconstitutional and amount to violation of the claimant’s right to fair hearing.
  6. A declaration that the withholding of the claimant’s promotion to the rank of Deputy Superintendent of Police having been recommended for promotion by the Board of Interview after his successful performance in the ASP-DSP promotion course 2/2011 and the eventual dismissal of the claimant from the 1st defendant’s employment on the same matter is unconstitutional and amounted to double jeopardy.
  7. A declaration that the 1st defendant’s dismissal of the claimant from the service without allowing him to make physical representation to defend the allegation leveled against him is unlawful being one done without compliance with statutory regulations, rules and due process of law is null, void and unconstitutional.
  8. A declaration that the claimant’s employment with 2nd defendant still subsist.
  9. An order setting aside the 3rd respondent’s letter dated 29th of April 2013 but served on the 21st June 2013
  10. An Order setting aside the 1st respondent’s letter no. PSC/C/48/VOL.V/10/6 dated 10th April 2013 which was never served on the claimant but allegedly containing the decision of the 1st defendant to dismiss the claimant from the employment of the 1st defendant.
  11. An order reinstating the claimant back to his employment with the 1st defendant with effects from the 3rd April 2013 being the date of the purported dismissal.
  12. An order directing the defendants to pay all the claimant’s salary, allowances, claims, entitlements and benefits due and payable to the claimants with effect from the date of his purported dismissal.
  13. An order directing the 1st defendant to release the claimant’s promotion to the rank of Deputy Superintendent of Police withheld by the 1st defendant with effect from 14th December 2011 and pay to the claimant all arrears and all entitlement accruable on the said rank.
  14. An order directing the payment of the general damages of N50, 000, 000.00 (Fifty Million Naira) only against the defendants for causing shock, trauma, loss of reputation for the imputation of corruption purportedly alleged against the claimant without bringing same before a court of criminal and competent jurisdiction.
  15. An order directing the payment of the general damages of N50, 000, 000.00 (Fifty Million Naira) only against the defendants for the shock and trauma caused the claimant by reason of the defendants’ withholding without trial, the claimant’s promotion to the rank of Deputy Superintendent of Police along his mates thereby resulting in loss of reputation for the imputation of being guilty of allegation of corruption unfoundedly made by faceless petitioner.
  16. An order directing the payment of general damages of N50, 000, 000. 00 (Fifty Million Naira) only against the defendants for unlawful termination of the claimant’s employment and causing the claimant financial embarrassment, shock and human trauma by the unwarranted sudden stoppage of claimant’s salary.

OR

Alternatively, payment of all the claimant’s entire salaries with all other entitlements accruable to him from the date of his unlawful dismissal up to March 2026, being the date he will be due for his statutory retirement.

In company of the complaint is the Claimant’s Statement of fact, Witness Statement on Oath, the Claimant’s list of documents to be relied on at the hearing of the case and list of witnesses to be called in prove of his case.

The 1st and 2nd defendants were never present throughout the pendency of this case and were not represented by counsel. The 3rd and 4th defendants’ statement of defence was dated 10th October 2013 and was filed on the same date. The Statement of defence was however not accompanied with any witness statement on oath, list of witnesses, list of documents to be relied on by the defence and/or any other document(s), contrary to the provisions of Order 30 Rules 2 (1) (a-e) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.

Claimant called four (4) witnesses in proof of his case and tendered series of documents which were admitted in evidence and were accordingly marked as exhibits. The 3rd and 4th defendants did not cross examine the  4th witness, i.e. CW4, called by the claimant in prove of his case due to 3rd and 4th defendants’ counsel  continued failure to attend court after the CW4 gave his evidence in chief. On the application of the claimant’s counsel, cross examination of CW4 was foreclosed. In view of continued absence of the 3rd and 4th defendants and their counsel from court, the defence of the defendants were also foreclosed and the parties were ordered to file their respective final written addresses.

The claimant’s final written address was dated and filed on 17th November 2017. The said final written address was settled by Abdulfatai A. Mohammed, Esq. Time was extended for the 3rd and 4th  defendants to file their final written address. The said 3rd and 4th defendants’ final written address was dated 5th January 2018. The 3rd and 4th defendants’ final written address was settled by D. O. Tarfa (Mrs), a counsel in the chambers of the Honourable Attorney General and Minister of Justice of the Federation.

Counsel for the parties adopted their respective written addresses and the matter was adjourned for judgment. I will now proceed to summarize the submissions made by counsel to the parties in their final written addresses.

Before I proceed, it is pertinent for me to mention that this matter was adjourned for Judgment on 10/01/2018, after final written addresses of the parties were adopted. I am not oblivious of the provisions of S.294 (1) of the 1999 Constitution of the Federal Republic of Nigeria which mandates that decisions in a case is to be delivered within Ninety (90) days after the conclusion of evidence and final address. Delivering this judgment today is obviously outside the provision of the constitution as stated above. It is therefore important for me to draw the attention of parties to this fact and to reiterate that not delivering this Judgment within the time prescribed by law is due to my engagements at the NJC and FJSC, of which I am a member, and other important administrative duties from the time the matter was adjourned for judgment till the time the court went on vacation after which I had to travel to Canada to attend a conference between late April and early May.

Let me now review the submissions of counsel in their respective written addresses. I will start with the written address filed by the Claimant.

Counsel for the claimant commenced his written address by stating the brief history of the claimant’s case. He stated that the claimant was employed through enlistment to the Nigeria Police by the 1st Defendant on the 1st March 1991 and he rose through the ranks to the rank of an Assistant Superintendent of Police (ASP) on the 26th June 2004. The claimant was later nominated to undergo ASP-DSP Promotion Course in 2011 at Staff College Jos, which the claimant attended and passed but 1st -3rd defendants punitively refused and neglected to promote him as a punishment for an alleged disciplinary action against him based on allegation of extortion and corruption levelled against “unnamed” officials of the Advance Trainning Wing of the Nigeria Police College, where the claimant was working from 17th September 2009 to 15th March 2013. Claimant’s counsel referred to Exhibits CW4C- CW4C10, CW4B12-CW4B17 and CW4D-CW4D27 as relevant documents in this respect.

According to the claimant, the said allegation was contained in an anonymous text message received from faceless petitioner by the then IGP Hafiz Ringim, alleging extortion from the course participants in the “present CPL-SGT Promotion Course in the PCI”. The then IGP forwarded the text message to CP Abdullahi Magaji Rtd, the then Commandant of Police College Ikeja, Lagos.

The claimant alleged that the Commandant of Police College Ikeja, conducted a discreet investigation which outcome did not indict the claimant. Claimant counsel referred to paragraphs 22-29 of the claimant’s statement of fact and Exhibits CW4DE5 and CW4DE18-CW4DE20 i.e statements made by some course participants who denied being extorted.

It is the claimant’s position that despite that no-complicity was established against him and other members of Staff by the Commandant, one ACP Noah Adesoyin and CSP Emmanuel Ighodalo of Lagos State Police Command invited the claimant with some few officers from the Police College Ikeja, to make statements in the course of which investigation the investigating team refused to disclose to the claimant what evidence it had against the claimant and neither did the team produce the witnesses against the claimant despite repeated request from the claimant.

It is the claimant’s position that the PW1 who supplied most of the material by which the college officials were alleged to have extorted course participants was not allowed to make statement during investigation despite the PW1’s willingness to so do. The claimant further alleged that during his trial, the Force Disciplinary Committee refused to disclose to the claimant what evidence it had against the claimant neither did it produce any witness against the claimant despite the claimant’s repeated request that they be produced for his cross-examination.

According to the claimant, despite his denial of commission of any crime, he was transferred out of the Police College and the 3rd defendant withheld his promotion to the rank of a DSP when the promotion of his colleagues was released with effect from December 2011. The claimant was further issued a query for serious misconduct and a Force Disciplinary Committee was set up by the 3rd defendant but his request to call certain persons to testify for him in the matter was declined. The claimant was eventually dismissed from service.

The claimant’s counsel formulated the following issues for determination thus:

  1. Whether the claimant’s appointment/employment with the 1st defendant does not enjoy statutory flavor to warrant his employer’s not observing and complying with the relevant Rules, Statutes and Regulations laid down by law, for termination of the Claimant’s employment?
  2. Whether the procedure and process adopted by the defendants for termination of the claimant’s appointment was not wrongful, illegal, ineffectual and unconstitutional?.
  3. Considering the totality of the facts before this Court, whether the claimant was given fair hearing at his trial?.
  4. Whether the claimant’s right to fair hearing guaranteed under the Constitution and relevant Statute, Regulation and Rules was not breached by the defendants’ conduct in the termination of Claimant’s employment.
  5. Whether the setting up of Force Disciplinary Committee by the 3rd defendant to try the claimant was not ultra vires the 3rd defendant’s power and therefore unlawful, illegal and unconstitutional?
  6. Whether the punitive transfer of the claimant from Police College Ikeja, withholding of the claimant’s promotion to the rank of Deputy Superintendent of Police along with his Course mates whose promotion took effect from 14th December 2011 after a successful performance in ASP-DSP Promotion Course and his eventual dismissal from the Force as a result of same allegation does not constitute double jeopardy?
  7. Whether the claimant is not entitled to the relief claimed?

On issue 1, i.e. whether the claimant’s appointment/employment with the 1st defendant does not enjoy statutory flavor to warrant his employer’s not observing and complying with the relevant Rules, Statutes and Regulations laid down by law, for termination of the Claimant’s employment?,  claimant’s counsel submitted that an employment is said to have statutory flavour when the appointment is protected by Statute or laid down Regulations made to govern the Procedure for employment and discipline of an employee. He submitted further that it is a firm position of law that a public servant who is in pensionable Cadre of the Federal Government Service or who is employed under statute enjoys statutory flavor.  Counsel cited the cases of CBN & ANOR. V. IGWILO (2007) 11 SCM 55 @ 69-70, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR PT. 599, OGUNLEKE V. NATIONAL STEEL DEVELOPMENT AUTHORITY (1992) NWLR 128, IMOLOAME V. WAEC (1992) NWLR PT, 268 @ 383 to support his argument on this issue.

Claimant’s counsel posited that from the totality of evidence before the court, it is not in dispute that the Claimant was a Police Officer who had risen to the Rank of Assistant Superintendent of Police and had indeed successfully attended Deputy Superintendent of Police Promotion Course and expected to be promoted alongside his mates but was denied the promotion as a result of this allegation. Counsel referred to paragraphs 2,5,6,7, 8, 9, 10, 21, 22, 31, 36,38, 41, 42,43,44,45, 46, 47, 48, 61, 66, 67, 68, 69, 70, 71, 73, 74, 75, 76, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 of the claimant’s statement of facts. Counsel contended that the fact that the claimant was an employee of the 1st defendant was not in contention. He referred to paragraphs 1,2,5,7,9, 12 & 14 of the Statement of defence of the 3rd and 4th defendants where in that fact was admitted by the defendants.

Claimant’s counsel further referred to Exhibits CW4D35, CWDB1-CW4B5, CW4B6-CW4B8 and Pension Act, Police Acts and Regulations CAP P19 Laws of the Federation of Nigeria (2004), Public Service Rules (2009) and other authorities to buttress his argument in respect of this issue.

Counsel argued that in view of all the above facts and cited laws, the defendants has no power to dispense with his service unless by strict adherence to the provisions of Chapter III of the Public Service Rules. Counsel further cited the cases of EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR PT. 34 P. 162. SHITTA-BAY V. FRSC (1981)1 SC P. 40., ADENIYI V. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR PT. 300 P. 426 to support his argument.

Counsel submitted that the claimant’s employment with the defendants enjoy statutory flavour to warrant his employer observing and complying with the relevant Rules, Statutes and Regulations laid down by law before an effectual termination of the claimant’s employment can effectively take place and he urged this Honourable Court to so hold.

On issue 2, i.e. whether the procedure and process adopted by the defendants for termination of the claimant’s appointment was not wrongful, illegal, ineffectual and unconstitutional?, claimant’s counsel submitted that the procedure and process adopted by the defendants in the determination of the employment of the claimant was wrongful, illegal and in total contravention of the provisions of the statute regulating his employment.

Counsel cited the case of BAMGBOYE V. UNIVERSITY OF ILORIN (1990)10 NWLR PT. 622 P. 290 which he argued to be in tandem with the statutory provisions contained in Chapter III of the Public Service Rules (2009) and more particularly Rules 030302-030307 which expressly laid out the proper procedure to adopt before the claimant’s employment/appointment could be terminated. Claimant’s counsel argued that Rule 030302 of the Public Service Rules (2009) expects the defendants to act administratively and not executively i.e. by first issuing a query, giving details of Claimant’s unsatisfactory behavior and called upon him to submit within a reasonable time such written representation he may wish to make to exculpate himself from disciplinary action and where the officer has not exculpated himself and deserves some punishment, then Rule 030304 shall apply.

Counsel cited S.10 (1) of the Interpretation Act CAP I. 23 Laws of the Federation 2004 and argued, among other things, that where the law provides for a form or manner/procedures for doing an act, that form, manner and procedure must be strictly followed because it was a duty statutorily imposed on the defendants. Counsel urged the court to hold that the manner and procedure of issuing the query with its content and setting up of the Disciplinary Committee resides only in the 1st defendant which said power it cannot abdicate to the 3rd Defendant. He further contended that even whe21re it was the 1st defendant that set up the Board of inquiry, Rule 030307 paragraphs VI and VII must be complied with.

Claimant’s counsel therefore submitted that the procedure adopted by the defendants in terminating the claimant’s appointment was wrongful, illegal, ineffectual and unconstitutional and that the claimant was not given fair hearing at his trial. Counsel therefore urged this Court to so hold.

On issue 3, i.e. whether the claimant’s right to fair hearing guaranteed under the Constitution and relevant Statute, Regulation and Rules was not breached by the defendants’ conduct in the termination of Claimant’s employment, counsel argued that the nature of fair hearing to be observed in the determination of the claimant’s rights concerning his employment is entrenched in Section 36 (1) of the 1999 Constitution which encompasses the twin Pillars of Justice, Viz; Audi alteram Parten and Nemo Judex in causa sua.

Counsel argued that the claimant, in order to prove that he was denied fair hearing, has vividly described  how the defendants showed bias against him which resulted into a miscarriage of Justice. He submitted that it is trite law that absence of fair hearing will vitiate a proceeding however well conducted. He therefore submitted that a party whose employment is to be terminated must be given fair hearing as failure to do so will render the termination null and void. Counsel cited the cases of NEWSWATCH V. IBRAHIM ATTAH (2006) 6 SCM 134, A.G. RIVERS STATE V. UDEH & ANOR 12 (PT. 1) SCM 72 to support his argument.

Counsel submitted that a claimant’s right to fair hearing guaranteed under the Constitution, relevant Statute, Regulation and Rules was indeed breached by the defendants’ conduct in the termination of claimant’s employment. Counsel urged this court to so hold.

On issue 4, i.e. whether the setting up of Force Disciplinary Committee by the 3rd defendant to try the claimant was not ultra vires the 3rd defendant’s power and therefore unlawful, illegal and unconstitutional?, it is the contention of claimant counsel that the 3rd defendant is not empowered to set up a Board of Inquiry as was the case in this suit as the power to appoint a Board of Inquiry is vested in the Commission. Counsel argued further that the letter terminating the appointment of the claimant was issued by the 3rd defendant and no letter from the 1st defendant was ever served on the claimant.

Counsel submitted that the totality of the above is that the 3rd defendant was a judge in its own cause who by his bias on the matter went beyond its power under Chapter III of the Public Service Rules to set up the Board.

Counsel submitted that it was ultra vires the power of the 3rd defendant to set up Force Disciplinary Committee to try the claimant and he urged this Court to so hold.

On issue 5, i.e. whether the punitive transfer of the claimant from Police College Ikeja, withholding of the claimant’s promotion to the rank of Deputy Superintendent of Police along with his Course mates whose promotion took effect from 14th December 2011 after a successful performance in ASP-DSP Promotion Course and his eventual dismissal from the Force as a result of same allegation does not constitute double jeopardy?, Counsel cited the case of BERNARD OKUEBOR V. THE POLICE COUNCIL & ORS (2003) NSCQLR Vol. 14 @ 462 in support of his argument that the trite position of law is that where a first punishment is given to a claimant and the defendants considered it too little and went ahead to add another punishment by giving the claimant the second and most serious one of dismissal, that would amount to malice.

Counsel enumerated what he considered as series of punishment meted out to the claimant based on the same allegation and submitted that the punitive transfer of the claimant from the Police College Ikeja, withholding of the claimant promotion to the rank of a DSP alongside his mates whose promotion took effect from 14th December 2011 after a successful  performance in the ASP-DSP Promotion Course and eventual dismissal from the Force as a result of same allegation did not constitute double jeopardy, and he urged the Court to so hold.

On issue 6 i.e., whether the claimant is not entitled to the reliefs claimed?, citing the case of OKOYE & ORS V. NWANKWO (2014) 10 SCM P.196 @ 216, counsel argued that the claimant has successfully discharged the burden placed on him by law to enable this court grant all the reliefs he prayed for in this suit.

In conclusion, counsel prayed this Court to grant all the reliefs of the claimant as contained the suit.

The 3rd and 4th defendants in their written addresses distilled 3 issues for determination thus:

  1. Whether the plaintiff has proved his case against the 4th defendant in this Suit?.
  2. Whether from the totality of the evidence before this Honourable Court, the plaintiff has proved his case on the preponderance of evidence?.

On the first issue distilled for determination by the 3rd and 4th defendants’ counsel, i.e. Whether the plaintiff has proved his case against the 4th defendant in this Suit?, it was argued that the claimant did not show any wrongful act done to him by the 4th defendant. Counsel argued that the 4th defendant has no role to play in the events that culminated into the dismissal of the claimants. Counsel posited the claimant has not proved any wrong done to him by the 4th Defendant and he urged this Honourable Court to so hold.

On the 2nd issue, i.e. Whether from the totality of the evidence before this Honourable Court, the plaintiff has proved his case on the preponderance of evidence?, counsel argued that the claimant admitted that a query was issued to him and he answered same  before he was dismissed. He submitted that where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query before a decision is taken against such employee, then the requirement of fair hearing must be deemed to have been satisfied before he was dismissed from his employment. Counsel cited the case of IMONIKE V. UNITY BANK PLC (2011) 12 NWLR PT. 1262 @ 624 Per ONNOGHEN JSC, to support his argument.

Counsel argued that the claimant has not proved any case against the 4th defendant and prayed this Court to hold that the plaintiff has not proved that his dismissal was devoid of fair hearing having been issued with a query which he answered before a decision was taken.

Counsel urged this Court to dismiss the claimant’s case with deterring cost.

I have carefully considered all the processes filed and exchanged by the parties. I have also given adequate thoughts to the arguments canvassed in the case as well as statutory and judicial authorities to which the attention of this Honourable  Court have been drawn. I will at this juncture proceed to determine the substance of the instant suit. In determining this suit, I will adopt the two (2) issues formulated for determination by the 3rd and 4th defendants’ counsel in her written address.

ISSUE 1.

Whether the plaintiff has proved his case against the 4th defendant in this suit?

In a quick response to the position of 3rd and 4th defendants’ counsel that the claimant has not proved any allegation of wrong doing against the 4th defendant, I refer to the case of HASSAN vs. ATANYI (2002) 8NWLR PT.770 P. 586 RATIO 3 @ PP. 612-123 PARAS. H-C, where it was held that “the person to be joined in a suit must be such whose presence is necessary as a party. What makes a person necessary party is not merely that he has a relevant evidence to give on some of the questions involved; neither is it merely that he has an interest in the relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action”.

The 4th Defendant in this instance is not being alleged to have done any wrong. However, as the Chief Law officer of the country, it is beyond doubt that the 4th  defendant will be affected by the outcome of this suit, which explains why the 4th defendant is being joined as a party in this suit.

The cumulative effect of the above positions is that the 4th defendant is a necessary party to this suit or put differently, the 4th defendant is not wrongly joined in this suit and I so hold.

In view of the above, all argument of the 3rd and 4th  defendants’ counsel in support of this issue is discountenanced. This issue is resolved in favour of the claimant and I so hold.

ISSUE 2.

Whether from the totality of the evidence before this Honourable Court, the plaintiff has proved his case on the preponderance of evidence?.

It is clear that at the nerve center of the grievance of the claimant in this suit is that his employment was unlawfully terminated without due regard to the principle of fair hearing, amongst other things.

In resolving the 2nd issue for determination, I consider it apposite to mention that this court’s decision can only be premised on facts, evidence and arguments before it. The crux of the case of the claimant is that his dismissal form service did not follow due process. He contended, among other things, that the 3rd defendant is not the appropriate authority to issue him termination letter.

It is important to also mention that the law is trite that the 3rd and 4th defendants are deemed to have abandoned their defence having failed to adduce any evidence in support of same and I so hold. In taking this position I rely on the position of the Supreme Court in the case of MILITARY GOVERNOR OF LAGOS STATE V. ADEYINKA (2012) 5NWLR PT. 1293 P.304 @P. 337 RATIO 7 where it was held that “in the absence of evidence to support the statement of defence, the pleadings of the appellants were deemed abandoned. The defence is deemed abandoned for all time”. I also refer to the case of OKECHUCHWU V. OKAFOR (1961) 2SCNLR 369.

In the same vein, it was held in the case of S.F.&P. LTD V. NDIC(2012) 10NWLR PT. 1309 P.529 RATIO 15 @P. 549 PARAGRAPHS E-F that  “pleadings on which no evidence is led goes to no issue”. I further refer to the cases CAP PIC. V.VITAL INVESTMENT LTD (2006) 6 NWLR PT. 976 P.220 and AKANDE V. ADISA (2012) 15 NWLR PT. 1324 P. 538 @P.548 RATIO 12.

I have taken the pain to carefully look at all the facts, evidence argument and submission for and in support of this case. Even though it is not in doubt that the claimant was issued with a query which he answered, I do not think the 3rd defendant is vested with the powers to constitute the Force Disciplinary Committee which indicted the claimant upon which the claimant’s appointment was terminated. A careful reading and understanding of the relevant laws in this respect would reveal that the 3rd defendant lacks the power to act in the manner it did in this case. It is very clear from the provisions of S. 6 (1) (a-g) of the Police Service Commission Act that it is the 1st defendant that is saddled with the responsibility to  appoint, promote, dismiss and exercise disciplinary control over person(s) in the Nigeria Police Force, among other functions of the Commission.

Again the defendants’ non-compliance with the provisions of Rule 030307 of the Public Service Rules which provides that it is the Commission and not the 3rd defendant that should set up the Board of Inquiry is fatal to the case of the defendants. Defendants clearly breached the  claimant’s right to fair hearing when he was denied the opportunity to cross-examine the witnesses called to testify in the panel and was further denied the opportunity to call witnesses to testify in his favour even when such witnesses were willing to so do.

In view of all the facts and evidence adduced by the claimant in this case, I am satisfied that the claimant has proved his case. The 2nd issue for determination is resolved in favour of the claimant.

The claimant having successfully proved his case, is therefore entitle to his reliefs sought in his claim and I so hold.

In all, the action of the Claimant is meritorious and same is hereby upheld.

In relief (1), the Claimant seeks a declaration that his purported dismissal his employment with the 1st defendant was wrongful and done mala fide and without just cause and in utter disregard to the terms and conditions of service of the defendants. I hereby declare that the purported dismissal of the claimant from his employment with the 1st defendant was wrongful and done mala fide and without just cause and in utter disregard to the terms and conditions of service of the defendants.

By the same token, I hereby grant relief (2). I declare that the dismissal by the defendants’ of the claimant’s appointment as a police officer in the service of the defendants is illegal, ineffectual and unconstitutional having been done in the breach of the claimant’s rights to fair hearing and Rules and Regulation governing his contract of service with the 1st defendant.

I also grant relief (3). I declare that the 3rd defendant’s letter dated the 29th April 2013 which was served on the claimant on the 21st June, 2013 through the commandant, the Nigeria Police Force, Police College Ikeja, which purportedly dismissed the Claimant from service and employment of the 1st Defendant, is null and void and of no effect for being done without due process of law.

I grant relief (4). I declare that that the 1st defendant’s letter no. PSC/C/48/VOL. V/10/6 dated 10th April, 2013 which was never served on the claimant but allegedly containing the decision of the 1st defendant to dismiss the claimant from the employment of the 1st defendant, is illegal, ineffectual and unconstitutional and done in gross breach of the claimant’s right to fair hearing, rules and regulations governing the Claimant’s contract of service with the 1st defendant.

I grant relief (5). I declare that the defendants’ failure and refusal to produce witnesses and the evidence against the claimant for purposes of knowing and controverting the evidence against him for cross examination and defence and their refusal to allow the claimant to call witnesses in his defence before dismissing him are unconstitutional and amount to violation of the claimant’s right to fair hearing.

I refuse relief (6). My reason for refusing this relief is premised   on the fact that the claimant did not place before me sufficient evidence to convince me that the purported withholding of his promotion letter was premised on malice. It is in view of the above that I refuse to grant this relief.

I grant relief (7).  I  declare that the 1st defendant’s dismissal of the claimant from the service without allowing him to make physical representation to defend the allegation leveled against him is unlawful being one done without compliance with statutory regulations, rules and due process of law is null, void and unconstitutional.

I grant relief (8). I declare that the claimant employment with the 2nd defendant still subsists.

I grant relief (9). I hereby set aside the 3rd defendant’s letter dated 29th of April 2013 but served on the claimant on the 21st June 2013.

I grant relief (10). I hereby set aside the 1st defendant’s letter No. PSC/C/48/VOL.V/10/6 dated 10th April 2013 which was never served on the claimant but allegedly containing the decision of the 1st Defendant to dismiss the claimant from the employment of the 1st defendant.

I grant relief (11). I ordered the re-instatement of the claimant back to his employment with the 1st defendant with effects from the 3rd April 2013 being the date of the purported dismissal.

I grant relief (12). I order the defendants to pay all the claimant’s salary, allowances, claims, entitlements and benefits due and payable to the claimants with effect from the date of his purported dismissal.

In view of my earlier reasons in respect of relief 6, I equally refuse to grant relief 13.

Relief 14 is for an order directing the payment of the general damages of N50, 000, 000.00 (Fifty Million Naira) only against the defendants for causing shock, trauma, loss of reputation for the imputation of corruption purportedly alleged against the claimant without bringing same before a court of criminal and competent jurisdiction.

Having ordered that the claimant be paid his outstanding salary, allowances, claims, entitlements and benefits, it will not serve the end of justice to grant this relief. I therefore refuse same. I consider the grant of that relief, i.e. relief 12, as sufficient compensation for the injury caused him by the action of the defendants. It is in view of this that I refused to grant relief 13.

For the same reason given in 14 above, I refuse to grant reliefs 15 and 16.

Having granted reliefs 8, 9, 10, 11 and 12 above, granting the alternative relief will serve no meaningful purpose. I hereby refuse same.

In the end, the case of the Claimant succeeds on its merit.

I make no order as to cost.

Judgment is entered accordingly.

 

…………..………………………………………………………………

Hon. Justice B. A. Adejumo, OFR

President,

National Industrial Court of Nigeria

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