CLETUS OSU BEN v. CROSS RIVER STATE WATERBOARD
(2016)LCN/8470(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/C/170/2012
RATIO
EVIDENCE: EVALUATION OF EVIDENCE; WHAT IS THE PRIMARY FUNCTION OF THE TRIAL COURT IN EVALUATION OF EVIDENCE
Evaluation of evidence is the primary function of the trial Court. Facts in issue in a civil case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue on either side of an imaginary balance and weighing them together. Whichever side outweighs the other ought to be accepted; Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 7 SCNJ 1. The trial Court has the duty to evaluate evidence adduced before it and to make primary findings of fact; Ayuya v. Yonrin (2011) LPELR-656 (SC). The consideration is that the trial Court, which had the singular opportunity of seeing and hearing the witnesses is in a better position to appraise and ascribe probative value on the evidence presented before it;Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 SC; Wachukwu v. Owunwanne (2011) LPELR-3466(SC). Unless the duty to evaluate evidence is shown not to have been done according to laid down principles, the appellate Court cannot interfere with findings made by the trial Court thereon; Iriri v. Erhurhobora (1991) 3 SCNJ 1; Yadis Nigeria Ltd v. Great Nigeria Insurance Co. Ltd (2007) 4-5 S.C. 236; Military Governor of Lagos State v. Adeyiga (2012) LPELR-7836(SC).
However, it is important to note that the evaluation of documentary evidence is not the exclusive preserve of the trial Court. The appellate Court has as much the same forensic leverage as the trial Court to form its own opinion on them; HH Momoh v. HH Umoru (2011) LPELR-8130 (SC), per Chukwuma-Eneh, JSC; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225, (2009) LPELR-2555(SC). PER ONYEKACHI AJA OTISI, J.C.A.
APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT
The inference to be drawn is that whether it is a case of documentary or oral evidence, where the findings of fact made by a trial judge are not supported by credible evidence or there has been improper evaluation of evidence, the appellate Court may interfere with those findings; Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630 SC; Military Governor of Lagos State v. Adeyiga (supra). PER ONYEKACHI AJA OTISI, J.C.A.
PLEADINGS: EFFECT OF PLEADINGS WHICH NO EVIDENCE IS LED
An elementary rule of pleadings is that an averment in the pleadings on which no evidence is led is deemed abandoned. Pleadings do not constitute evidence. Therefore when a party fails to give evidence in proof of his pleadings, the pleadings are deemed abandoned; Newsbreed Org. Ltd. v. Eromosele (supra), also reported in (2006) 5 NWLR (Pt. 974) 499; Ifeta v. S.P.D.C. Nig. Ltd (2006) 8 NWLR (Pt. 953) 585; Akande v. Adisa (2012) LPELR-7507(SC). PER ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: EFFECT OF UNCHALLENGED EVIDENCE; BURDEN OF PROOF IN CIVIL MATTERS
It is therefore well settled that when the evidence of one side is unchallenged and not contradicted, the evidence, if credible, ought to be accepted and acted upon by the Court, on the principle that there is nothing to be placed on the other side of the scale of justice. However, even in this circumstance, the Appellant has no clear cruise to victory. The Appellant must still prove that he is entitled to the orders he seeks for he who asserts must prove;Noibi v. Fikolati (1987) 3 SC 105, (1987) LPELR-2064 (SC); Okonkwo v. Okonkwo (2010) LPELR-9357 (SC); Jolayemi v. Alaoye (2004) 18 NSCQR 682; Ohochukwu v. A.G. of Rivers State (2012) LPELR-7849 (SC). But in this circumstance, the onus of proof on the plaintiff is discharged on minimal of proof; Baba v. Nigerian Civil Aviation Training Centre, Zaria (supra); Asafa Foods Factory Ltd v. Alraine Nig. Ltd. (2002) 5 S.C. (Pt. 1); Chami v. U.B.A. Plc. (2010) 6 NWLR (Pt. 1191) 474 S.C.; U.B.N. Plc. v Chimaeze (2014) LPELR-22699 (SC). PER ONYEKACHI AJA OTISI, J.C.A.
TRIBUNAL: CAN A DISCIPLINARY PANEL PRONOUNCE UPON THE COMMISSION OF A CRIME
It is crucial to note that the allegation against the Appellant bordered on fraud which amounted to a crime. Only a Court of law can rightly pronounce upon the commission of a crime; Denloye v. Medical and Dental Practitioners Disciplinary Committee (1965) 1 ALL NLR 306; Garba v. University of Maiduguri (1986) 2 S.C. 128; Baba v. Nigerian Civil Aviation (1991) 7 S.C. (Pt. 1) 58; Ndukwe v. L.P.D.C. (2007) 1-2 S.C. 253. The report of a disciplinary panel is not a conviction as defined by law. A report of a disciplinary panel therefore cannot rightly order the refund of money alleged to have been fraudulently obtained. PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
Between
CLETUS OSU BEN Appellant(s)
AND
CROSS RIVER STATE WATERBOARD Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Cross River State of Nigeria, Calabar Judicial Division, presided over by Honourable Justice Bassey E. Ikpeme, J., in suit No. C/278/1994, delivered on March 6, 2012, in which the suit instituted by the Appellant, as claimant, for wrongful suspension from work and lack of fair hearing was dismissed.
?The Appellant’s account of the incident leading to this appeal discloses that he was employed by the Respondent in 1998, initially as an Assistant Craftsman on Salary Grade Level 03 Step 1, but with subsequent promotions, his designation in 1993 became Personnel Assistant 3. Sometime in 1994, while at the Respondent’s Boaster Station at Akim, a certain medical doctor requested for a plumber. The Appellant introduced him to one Patrick Ikana, who was a staff of the Respondent. Mr. Ikana reconnected water supply for the medical doctor. Four weeks later, the Appellant received a query from the Respondent alleging that he fraudulently obtained money from one Etubom Okon Eyamba and also illegally reconnected water. He
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responded to the query, but was thereafter invited to meet with the Board Secretary. Few weeks later, he received a suspension letter. Being dissatisfied with the procedure that led to his suspension, the Appellant instituted action against the Respondent by Originating Summons. The parties later filed pleadings, upon order of the trial Court made on February 6, 2006 (page 197 of the Record of Appeal). The crux of the Appellant’s case was that he was suspended without being tried and that being so, his constitutional right of fair hearing had been trampled upon.
For the Respondent, the Appellant was queried in accordance with the conditions of service between the Appellant and the Respondent for carrying an illegal water connection, which was an act of gross misconduct. The Respondent, not being satisfied with the answers to the query, proceeded to suspend the Appellant, pending an investigation into the allegation of misconduct by the Plaintiff. The Appellant was suspended on June 22, 1994. He instituted action in Court on July 8, 1994, sixteen days after the suspension. The Respondent contended that the suit of the Appellant was not competent because
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his civil rights had not been determined by the Respondent at the time the Appellant instituted action in Court. No final decision had been taken on his matter by the Respondent before the action in Court was instituted. The Appellant had not exhausted the internal mechanism provided for in the conditions of service to seek redress before instituting action in Court.
At the hearing, the Appellant testified for himself and tendered ten exhibits. Although the Respondent filed its Statement of Defence, it failed to lead any evidence in proof of the pleaded facts. At the end of the trial, the learned trial Judge dismissed the case of the Appellant. Aggrieved by that decision, the Appellant lodged the instant appeal by Notice of Appeal on 23/5/2012 upon four grounds of appeal.
?The parties exchanged Briefs of Argument, which were respectively adopted on 21/1/2016. Mba E. Ukweni, Esq. for the Appellant adopted the Appellant’s Brief filed on 19/10/2012 but deemed on 20/3/2013. The Respondent’s Brief filed on 12/2/2013 but deemed on 20/3/2013, was adopted by Ikoi E. Ikona, Director, Civil Litigation, Ministry of Justice, Cross River State. The Appellant
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formulated three issues for determination, to wit:
1. Whether the learned trial Judge was right when he held that, evidence (oral and documentary) led by the Appellant was sufficient to prove his case to the standard required in civil cases.
2. Whether the restatement and summary of evidence as the learned trial Judge did, can take the place of evaluation of evidence.
3. Whether the issuance of query and without more and the subsequent suspension without trial for criminal allegation of fraud amount to fair hearing.
These issues were adopted by the Respondent. I shall now proceed to resolve these Issues together.
On Issue No. 1, it was submitted for the Appellant that his evidence regarding his employment and suspension were not contradicted by the Respondent, which did not testify but abandoned their pleadings. It was submitted that refusal to lead evidence on pleaded facts translates into voluntary abandonment of such pleadings; relying on WAEC v. Oshionebo (2007) ALL FWLR (Pt. 370) 1501 at 1509. The Appellant’s evidence was not punctured by cross examination and the facts are deemed admitted, requiring non further proof;
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relying on WAEC v. Oshionebo (supra) at 1516; Section 123 of the Evidence Act, 2011. Having failed to lead evidence in support of their pleaded facts, the burden on the Respondent to rebut the evidence of the Appellant had not been discharged. In the face of unchallenged credible evidence, the Appellant ought to be entitled to judgment. Reliance was placed, inter alia, on Section 133 (1) and (2) of the Evidence Act, 2011; Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273; Mainagge v. Gwamm (2004) ALL FWLR (Pt. 222) 1617.
The Appellant had testified that he was not granted a fair hearing before his suspension. He had been given a three month suspension but not allowed back into his office to resume work at the end of the period. This fact was not controverted. It was submitted that fair hearing is constitutionally guaranteed right, which breach is not technical but one of substance; relying on Maliki v. Michael Imodu Institute for Labour Studies (2009) ALL FWLR (Pt. 491) 979 at 1018 – 1019.
On Issue No 2, it was submitted for the Appellant that the learned trial Judge in his judgment listed the ten exhibits tendered by the Appellant and explained what
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they were all about but could not relate them to the oral testimony of the witness to show the purport of each exhibit. The oral evidence of the witness was not evaluated and appraised by the trial Court to show the real nature of the Appellant’s complaint. The complaint of the Appellant was based on wrongful suspension but the trial Court approached the case from a standpoint of wrongful dismissal or termination of appointment. It was contended that this conclusion arose out of an improper evaluation of evidence. It was submitted that where a trial Court fails to evaluate evidence, the appellate Court may look at the evidence on record and make an objective finding of fact where there has been a perverse finding by the trial Court. Reliance was placed onS.B.N. Plc. v. C.B.N. (2009) 6 NWLR (Pt. 1137) 235 at 293. It was submitted that the failure to evaluate the evidence before dismissing the Appellant’s claim lead to a miscarriage of justice, for which the decision is liable to be set aside; relying, inter alia, on C.S.S. Bookshops Ltd. v. The Registered Trustees of Muslim Community in Rivers State (2006) ALL FWLR (Pt. 319) 819 at 847.
?On Issue No 3,
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it was submitted that the Appellant had not been accorded fair hearing. The Appellant was given a query, which he replied. He received no response from the Respondent notifying him that his reply to the query was unsatisfactory. He did not appear before the Respondent’s Board or a disciplinary panel to respond to the charges but before the Board secretary only. It was submitted that the Appellant had not been given opportunity to appear and defend himself in respect of the criminal allegation of fraud before his suspension. The provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which guaranteed fair hearing, had not been complied with. The Court was urged to resolve these issues in favour of the Appellant.
For the Respondent, it was submitted that the learned trial Judge had come to the right conclusion in holding that the totality of the evidence of the Appellant was insufficient to prove his case of unlawful suspension from service by the Respondent. The Appellant had the duty of proving by credible evidence, to the satisfaction of the Court how he was illegally suspended by the Respondent. The burden
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on the Appellant had to be discharged before the Respondent would have a duty to defend the action; relying on Egharevba v. Osagie (2009) 12 S.C. (Pt. 11) 123. It was further argued that even when a defendant fails to adduce evidence in his defence or rests his case on that of the Appellant, the Appellant must still adduce minimal evidence to establish his case. The case ofNewsbreed Org. Ltd v. Erhomosele (2006) SC (Pt. 1) 136 was cited and relied upon.
It was argued that the exhibits tendered by the Appellant conclusively showed that the Appellant was merely suspended with effect from 22/6/1994 for three months to enable further investigation on the matter. It was not a termination of employment or dismissal from employment. The procedure employed by the Respondent was in conformity with the Conditions of Service, Exhibit 10. It was submitted that the findings and holding of the trial Judge were supported by the evidence tendered before the trial Court. The case revolved around documentary evidence, which the learned trial Judge evaluated before arriving at a conclusion. The findings were not perverse. The Court was urged to hold that the Appellant
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had failed to prove his case before the lower Court and that the trial Court in its judgment had properly evaluated the evidence as was submitted by the Appellant.
On the issue of fair hearing, it was submitted that the Appellant was queried and he responded to the query before his suspension. His response was not satisfactory. He was invited to meet with the Secretary of the Respondent. It was argued that the Appellant was not tried in any judicial or quasi-judicial manner. That the suspension of the Appellant was to enable the Respondent carry out some investigation into the Appellant’s case. The Appellant cannot claim he was not accorded fair hearing. The Court was finally urged to hold that the Appellant was given fair hearing.
Evaluation of evidence is the primary function of the trial Court. Facts in issue in a civil case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue on either side of an imaginary balance and weighing them together. Whichever side outweighs the other ought to be accepted; Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 7 SCNJ 1. The trial Court has the
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duty to evaluate evidence adduced before it and to make primary findings of fact; Ayuya v. Yonrin (2011) LPELR-656 (SC). The consideration is that the trial Court, which had the singular opportunity of seeing and hearing the witnesses is in a better position to appraise and ascribe probative value on the evidence presented before it;Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 SC; Wachukwu v. Owunwanne (2011) LPELR-3466(SC). Unless the duty to evaluate evidence is shown not to have been done according to laid down principles, the appellate Court cannot interfere with findings made by the trial Court thereon; Iriri v. Erhurhobora (1991) 3 SCNJ 1; Yadis Nigeria Ltd v. Great Nigeria Insurance Co. Ltd (2007) 4-5 S.C. 236; Military Governor of Lagos State v. Adeyiga (2012) LPELR-7836(SC).
However, it is important to note that the evaluation of documentary evidence is not the exclusive preserve of the trial Court. The appellate Court has as much the same forensic leverage as the trial Court to form its own opinion on them; HH Momoh v. HH Umoru (2011) LPELR-8130 (SC), per Chukwuma-Eneh, JSC;Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225, (2009)
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LPELR-2555(SC). The inference to be drawn is that whether it is a case of documentary or oral evidence, where the findings of fact made by a trial judge are not supported by credible evidence or there has been improper evaluation of evidence, the appellate Court may interfere with those findings; Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630 SC; Military Governor of Lagos State v. Adeyiga (supra). The case of the Appellant herein before the trial Court was based mainly on documentary evidence. This Court is thus empowered to examine the documents tendered and form its own opinion thereon.
An elementary rule of pleadings is that an averment in the pleadings on which no evidence is led is deemed abandoned. Pleadings do not constitute evidence. Therefore when a party fails to give evidence in proof of his pleadings, the pleadings are deemed abandoned; Newsbreed Org. Ltd. v. Eromosele (supra), also reported in (2006) 5 NWLR (Pt. 974) 499; Ifeta v. S.P.D.C. Nig. Ltd (2006) 8 NWLR (Pt. 953) 585; Akande v. Adisa (2012) LPELR-7507(SC).
It is therefore well settled that when the evidence of one side is unchallenged and not contradicted, the evidence, if credible,
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ought to be accepted and acted upon by the Court, on the principle that there is nothing to be placed on the other side of the scale of justice. However, even in this circumstance, the Appellant has no clear cruise to victory. The Appellant must still prove that he is entitled to the orders he seeks for he who asserts must prove;Noibi v. Fikolati (1987) 3 SC 105, (1987) LPELR-2064 (SC); Okonkwo v. Okonkwo (2010) LPELR-9357 (SC); Jolayemi v. Alaoye (2004) 18 NSCQR 682; Ohochukwu v. A.G. of Rivers State (2012) LPELR-7849 (SC). But in this circumstance, the onus of proof on the plaintiff is discharged on minimal of proof; Baba v. Nigerian Civil Aviation Training Centre, Zaria (supra); Asafa Foods Factory Ltd v. Alraine Nig. Ltd. (2002) 5 S.C. (Pt. 1); Chami v. U.B.A. Plc. (2010) 6 NWLR (Pt. 1191) 474 S.C.; U.B.N. Plc. v Chimaeze (2014) LPELR-22699 (SC).
The Respondent had filed a Statement of Defence, Page 118-120 of the Record of Appeal, but failed to field any witness in proof of its pleadings. Pleadings not being evidence, the Respondent had effectively abandoned its defence. However, the pertinent question is this: did the Appellant prove his
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claims?
The Appellant tendered the Query, Exhibit 6, issued to him. The said Query, reproduced at page 110 of the Record of Appeal, reads in part thus:
Reports reaching this office indicate that on the 24th of January, 1994 you fraudulently obtained money from one Etubom Okon E. J. Eyamba to carry out illegal water connection to his house at No. 116 Akim Road, Calabar.
2. This action as you know amounts to Gross Misconduct and is viewed seriously.
3. In the circumstances, I am directed to ask you to explain within 24 hours of receipt of this letter why severe disciplinary action should not be taken against you for Gross Misconduct.
The main accusation here is that the Appellant fraudulently obtained money from one Etubom Okon E. J. Eyamba to carry out illegal water connection to his house at No. 116 Akim Road, Calabar. His reply to this Query, Exhibit 7, was reproduced at page 111 of the Record of Appeal. Therein, the Appellant unequivocally denied the allegations as follows:
Firstly, all the allegations in your query are false. I have never collected money from anybody to carry out water connection or reconnection, as
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the case may be?
He was thereafter invited by letter, Exhibit 8, to a meeting with the Respondent’s Board Secretary. The said letter simply stated:
I am directed to invite you to attend a meeting with the Board Secretary on Friday, 29th April, 1994 at 10 a.m. prompt in his office…
The Appellant as PW1 testified, at page 224 of the Record of Appeal that he did go to meet with the Board Secretary, who questioned him regarding the incident for which he was accused. The Appellant further testified that at the said meeting, which was by no means a disciplinary panel, the persons who accused him of collecting money illegally were not present. Thereafter, the Appellant received Exhibit 9, a suspension letter, which now stated thus:
I am directed to inform you that the Management Committee, at its meeting of 9th June, 1994 deliberated on the above issue and decided:
1.1 that you should be suspended from duty without pay for three (3) months with immediate effect.
1.2 that you should, within two weeks from the date of receipt of this letter, jointly refund the sum of N2,500,00 (at N1,250.00 each) to Etubom Okon E. J.
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Eyamba XVI and show the payment receipt to the Board or face summary dismissal from the service.
2. The Management decision above is by this letter conveyed to you for compliance please.
The Appellant testified at page 224 of the Record of Appeal that he neither was invited to appear nor did he appear before the Management meeting of June 9, 1994. Under cross examination, his testimony on these facts was not contradicted.
The uncontroverted evidence before the trial Court was thus to the effect that the Appellant was queried and given opportunity to respond. He was accused of fraudulently obtaining money, which he denied in his response. He was however given no reply by the Respondent indicating that it was dissatisfied with his response. He was invited subsequently to meet with the Respondent Board Secretary, alone, which he did. Thereafter he was given a letter suspending him and ordering him to refund the money allegedly collected fraudulently by him. There is no evidence that he was given opportunity to confront his accusers before he was directed to refund the said money allegedly collected fraudulently.
Contrary to the
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assertion of the Respondent’s Counsel, the Appellant was not merely suspended with effect from 22/6/1994 for three months to enable further investigation on the matter. Indeed the suspension letter made no mention of an ensuing or a pending investigation into the allegation. Rather, the letter directed his suspension without pay for three months and further directed that he refund the said money allegedly collected fraudulently or be summarily dismissed. The implication of the terms of the said letter, Exhibit 9, is unequivocally to the effect that the truth of the allegation was accepted by the Respondent, without affording the Appellant the opportunity to confront his accusers and defend himself. The Appellant had testified that after the three months for which he was suspended elapsed, he reported back for work but was asked to produce receipt to show he had refunded the money. He testified that he did not show any receipt because he did not refund any money, having not collected any money as alleged. This evidence was not controverted. His resumption to duty was therefore tied by the Respondent to his compliance with the direction on the letter of
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suspension to refund the money alleged to have been fraudulently collected. This action shows further proof of the Respondent’s acceptance of the truth of the allegation.
There ought to have been a disciplinary panel set up by the Respondent before which the Appellant and his accusers would appear to afford each side the opportunity to be heard in accusation and in defence, respectively. The invitation to the Appellant to appear, alone, before the Board Secretary did not amount to appearing before a disciplinary panel. However, even if the appearance before the Respondent Board Secretary amounted to a disciplinary panel for the Respondent, it is trite that the principles of fair hearing are binding, not only on judicial bodies but also on disciplinary or administrative bodies. In Adeniyi v Governing Council of Yaba (1993) 7 SCNJ 304, the Supreme Court, per Karibi-Whyte, JSC made it clear that:
Our Courts have held that although a non-judicial Tribunal is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline, it is of the utmost importance that the inquiry be conducted in accordance
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with the principles of natural justice.
See also:Institute of Health Ahmadu Bello University Hospital Management Board v. Anyip (2011) LPELR-1517(SC); Yemisi v. Federal Inland Revenue Services (2012) LPELR-7964(CA).
It is crucial to note that the allegation against the Appellant bordered on fraud which amounted to a crime. Only a Court of law can rightly pronounce upon the commission of a crime; Denloye v. Medical and Dental Practitioners Disciplinary Committee (1965) 1 ALL NLR 306; Garba v. University of Maiduguri (1986) 2 S.C. 128; Baba v. Nigerian Civil Aviation (1991) 7 S.C. (Pt. 1) 58; Ndukwe v. L.P.D.C. (2007) 1-2 S.C. 253. The report of a disciplinary panel is not a conviction as defined by law. A report of a disciplinary panel therefore cannot rightly order the refund of money alleged to have been fraudulently obtained.
Thus, while the suspension of the Appellant to enable investigation of the allegation may be within the purview of the terms of his employment, the Respondent wrongly went further to tie his suspension with the order a refund of money alleged to have been fraudulently obtained. And this, without according the
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Appellant fair hearing as constitutionally guaranteed by Section 36 of the 1999 Constitution, as amended; and as judicially acknowledged.
The three Issues raised for determination are hereby resolved in favour of the Appellant. This appeal is therefore meritorious and is hereby allowed.
It is ordered that the judgment of Hon. Justice B. E. Ikpeme, J., of the High Court of Cross River State of Nigeria, Calabar, delivered on March 6, 2012 in Suit No. C/278/94 be and is hereby set aside. Having regard to the powers of this Court pursuant to the provisions of Section 15 of the Court of Appeal Act, 2004, the following orders are also made:
a) It is hereby declared that the purported decision of the Management Committee of the Respondent at its meeting of the 9th June, 1994 suspending the Appellant from duty without pay for three (3) months with immediate effect and ordering him to jointly (with another) to refund the sum of Two Thousand, Five Hundred Naira (2,500.00) to one Etubom Okon E. J. Eyamba within two weeks is illegal, invalid, unconstitutional, null and void and of no effect whatsoever being a gross abuse of power and contrary to
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the Appellant’s constitutional guaranteed right to fair hearing.
b) It is further ordered that the Respondent do restore or reinstate the Appellant to his position in the Respondent’s Board and pay to him all his salaries, wages, allowances and other entitlements due other staff of his category from 9th June, 1994 till this date.
c) The Sum of One Million Naira (N1,000,000.00) only as damages is awarded against the Respondent for gross infringement of the Appellant’s right to fair hearing.
d) An order of Perpetual Injunction is also granted restraining the Respondent, its agents, officers, servants etc. from further intimidation, harassment and threat of dismissal of the Appellant in connection with the subject matter of this action.
Costs are assessed at N50,000.00 against the Respondent in favour of the Appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Learned brother, O. A. OTISI, JCA, gave me the opportunity of reading before now the judgment just delivered. His Lordship comprehensively resolved the issues before us. I am
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therefore in agreement with his reasoning and conclusion that this appeal is meritorious and ought to be allowed. I also allow same.
The judgment of B. E. Ikpeme, J, of the High Court of Cross River State of Nigeria, Calabar Division delivered on 6/3/2012 in Suit No. C/278/94 is hereby set aside.
?I abide by the order made pursuant to Section 15 of the Court of Appeal Act, 2004 as well as the order as to costs made by OTISI, JCA, in the lead judgment.
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Appearances
Mba E. Ukweni, Esq. with him, M. T. Otu, Esq. E. E. Eteng, Esq., C.A.C. Efife, Esq., E. Ekpe, Esq. and Miss J.B. IkpemeFor Appellant
AND
Ikoi E. Ikona, Esq. (Director, Civil Litigation) with him, G. A. Nyekigbe (Miss) and E. A. Assam (SSC 11 Ministry of Justice Cross River State)For Respondent
