IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 20TH JULY, 2018.
SUIT NO.: NICN/EN/26/2016
BETWEEN:
CORPORAL AKANI EKPE CLAIMANT
AND
INSPECTOR GENERAL OF POLICE & 2 ORS. DEFENDANTS
REPRESENTATION:
- U. Onyefulu Esq. for the Claimant
- D. Utazi (Police Legal Officer) for the Defendant
JUDGMENT
The claimant took out a complaint on the 17th June, 2016 against the defendants claiming amongst others the following relieves:
1) A declaration that the purported dismissal of the claimant by the defendant for no just cause was wrongful, unlawful, premature unfair, null and void and without regard to the principles of fair hearing as guaranteed by the constitution of the Federal Republic of Nigeria 1999 (as amended) and due process.
2) An order setting aside the dismissal of the claimant by the defendant.
3) An order of this Honourable court for re-instatement of the claimant as a police officer of the 1st and 2nd defendant with his full rank, status, remuneration, emoluments, entitlement; promotion, benefit arrears etc accruing to his office.
4) An order of court mandating the defendants to pay the claimant areas of salary from the month of November 2010 till the claimant is re-instated and continuous payment of his salaries afterwards.
5) General damages of N50 (fifty million) only for wrongful dismissal.
6) N50 million naira as exemplary damages.
7) N1.5 million only legal charge for his case against the claimant.
In the Alternative
N50 million only as damages for wrongful dismissal of the claimant filed his statement of fact and a witness statement on oath along with the complaint.
The defendant did not file any defence to the action of the claimant. On the 17th April, 2018 due to the defendant’s refusal to file a defence and also conduct a defence in this matter they were for closed.
Hearing in the claimant’s case commended on 30th January, 2018. The claimant testified as CW-1 and the sole witness. He adopted his witness deposition and tendered the following documents in proof of his claims.
1) Letter addressed to the IGP dated 1st June, 2017 applying to certify some documents marked Exhibit C1-a.
2) Document dated 10th December, 2008 titled “For Re-Organisation” marked as Exhibit C1-b.
3) Document dated 29th June, 2009 titled “Daily Instruction” marked Exhibit C1-c.
4) Document dated 15th November, 2010 title :Daily Order/Instruction” marked Exhibit C1-d.
5) Document dated 2nd June, 2011 titled “Transfer in/out of Training Institution Police Staff College Jos CPTU (general duty)” marked Exhibit C1-e.
6) Document titled “Application for Annual Leave” marked as Exhibit C1-f.
7) Document marked M – Sheet is marked as Exhibit C1-g.
8) Hospital card/record bearing claimant named marked as Exhibit C1-j.
9) The photograph taken of claimant’s skin condition is marked as Exhibit C1-i.
10 )The letter dated 27th April, 2012 titled “Appeal for illegal dismissal” is admitted and marked Exhibit C1-j.
11 )The pre-action notice dated 20th January, 2016 and proof of delivery marked as Exhibit C1-k
The claimant was cross examined by the defence counsel.
The cause of the claimant is that he was enlisted into the Nigerian Police on 1st January, 2001 with Force No 370213 has served the force for 8 years. He was posted to Plateau State Command via Exhibit C1-b where he served for 3 years. In 2010 the claimant fell sick. He applied for transfer from Plateau State Command back to his state to seek traditional medication as the sickness had defied other medication. This request was granted in Exhibit C10d and he was transferred to Cross River State Command. On getting there he was told that inter-state transfer was not allowed any longer. He was refused at the Cross River State Command. He reported back to Plateau State Command and requested a reposting back to Plateau Command but he was denied the posting. He was advised to apply for another transfer to Police College. He was transferred to Police College via Exhibit C1-e. The transfer signal had errors, the Police Staff College was spelt as Police State College, his name Akani was written “Anani” his rank “CPL was written “PC” and his force number 370213 was written 320813. All effort to correct the errors proved abortive. He went back to CP training “E” Department and explained the incident to him. He was advised to go back to the Police Staff College for them to correct the errors. On getting there he was informed verbally that he had been dismissed. His salary was later stopped. All effort to be re-instated proved abortive. He petitioned the National Human Right Commission via a letter dated 20th January, 2016 Exhibit C1-j. This did not yield any result. He caused his counsel to serve a pre-action notice in Exhibit C1-k. The claimant states that he was never tried by any orderly room trial. There is no written notice of dismissal since 2010 and he has not received his salary since then. That being a family man he has been exposed to serious hardship by the unlawful Act of the defendants.
From the facts and circumstances of this case, this court is called upon to determine whether the dismissal of the claimant from the police force was lawfully done by the defendants.
In proof of his wrongful dismissal the claimant tendered Exhibit C1-d the letter of posting from Plateau State Command of the defendants to Cross River State Command. In the said letter he was released to report at the Cross River State Command. He was not admitted into the new Command on the grounds that inter-state transfer was not allowed. He returned Plateau Command and again was transferred to Police Staff College Jos via Exhibit C1-e all his attempt to correct the errors in the transfer signal proved abortive until he was informed that he has been dismissed and his salary was stopped. The claimant testified also that he has never been interdicted for any offence. He also testified that he was never tried by any orderly from trial. He testified that he got the National Human Rights Commission to appeal to the 1st defendant against his dismissal and tendered Exhibit C1-j, the letter written by the National Human Right Commission dated 27th April, 2012.
From the evidence of the claimant and the Exhibits tendered in this suit, there is no evidence adduced which show any act on the part of the claimant which could support his dismissal from the force. The dismissal of the claimant from the Nigerian Police and the subsequent stoppage of his salary was done without due process, and in clear violation of the right to fair hearing of the claimant. This court is satisfied that the claimant has proved that his dismissal was unlawful. This being the case relieves number 1, 2 and 3 of the claims of the claimant succeeds. The court hereby orders as follows.
1) It is hereby declared that the purported dismissal of the claimant by the defendants for no just cause is wrongful, unlawful premature, unfair, null and void and without regard to the principles of fair hearing as guaranteed by the constitution of the Federal Republic of Nigeria.
2) It is hereby ordered that the dismissal of the claimant by the defendants is hereby set aside.
3) The claimant is hereby re-instated into the Nigerian Police with his full rank and is entitled to all his allowances, promotion arrears of salaries from November, 2010 to the date of this judgment.
4) The 3rd defendant shall direct the re-instatement of the claimant back into the Nigerian Police Force and also direct the computation of all the arrears of his salaries and emoluments allowances and pay same to the claimant.
On relieves No 5 and 6 where the claimant has claimed N50 million general damages for wrongful dismissal and another N50 million as exemplary damages.
On the award of exemplary damages the law is that exemplary damages are usually awarded whenever the defendants conduct is sufficiently outrageous to merit punishment such as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like Agi V. First City Monument Bank Plc. [2013] LPELR – 20708. See also Eliochin (Nig) Ltd & Ors. V. Mbadiwe [1986] 1 NWLR Pt 14 at 147.
I have carefully examined the circumstances of this case. This is not the case in which an exemplary damages as claimed by the claimant can be award. It therefore follows that relieve No 6 must fail and is hereby dismissed.
I have already decided in this judgment that the dismissal of the claimant is unlawful. The action of the defendant in dismissing the claimant and stopping his salary is not without some inconveniences. The claimant testified that he has not been receiving his salary and this has been so traumatic for him being a man with 8 children; a wife and dependents. The claimant is entitled to damages for the unlawful act of the defendants, I therefore award the sum of N1 million Naira as general damages against the defendant in favour of the claimant.
The claimant in relief No. 9 also claims the sum of N1.5 million as legal fee paid to his counsel. It is a misconception for a party in an action to think that the expenses of his litigation in the nature of professional fees paid to his solicitor can be recovered through damages or a claim for it against the opposite party. The Supreme Court has laid to rest this issue when the court held in Christopher Nwanji V. Coastal Services Nig. Ltd [2004] LPELR – 2106 thus:
It is an unusual claim and difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of cost taxation to get a realistic figure. Cost are awarded arbitrary and certainly usually minimally. I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgage who engaged him, in the present case on the grounds of solicitor’s cost paid by him.
On the strength of the above authority the claim of N1.5 million as solicitor’s fees must fail and it is hereby dismissed.
Judgment is hereby entered accordingly.
