DR. HENRY EFFIONG BASSEY v. ATTORNEY-GENERAL, AKWA IBOM STATE & ORS (2016)

DR. HENRY EFFIONG BASSEY v. ATTORNEY-GENERAL, AKWA IBOM STATE & ORS

(2016)LCN/8421(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/C/245/2012

RATIO

JUSTICE: DEFINITION OF THE TERM JUSTICE; WHAT THE TERM JUSTICE DENOTES AND HOW IT CAN BE ADMINISTERED
It’s trite, that the term Justice fundamentally denotes the fair and proper administration of Justice. Afortiori, the term substantial justice means justice fairly administered according to rules of substantive law, regardless of any procedural errors not affecting the litigant’s (substantive) rights. In essence, justice denotes a fair trial of a case on the merits. See BLACK’S LAW DICTIONARY 8TH Edition, 2004 @ 881.
Thus, in the strict legal sense thereof, justice is characteristically the end result of an effective application of the law of the land by a Court of competent jurisdictional competence. In a broader and more popular sense:
“Justice is fairness, fairness in adjudication, fairness in the process of adjudication and in the ultimate decision reacted by the decision-making body or authority. It is that kind of justice that accords not only with the rule of law, but also ensures equality of treatment to all and sundry. For justice according to law may not necessarily achieve this end. For a strict application of an unjust can lead to an unjust decision and an unjust decision is sure to result in injustice and create problems for the entire system. Therefore, for justice to be according to law, the law itself must be just; fair and equitable.”
See MM A. AKANBI, PCA Emeritus: THE JUDICIARY AND THE CHALLENGES OF JUSTICE @ 33. Indeed, it’s a truism that justice can not in any way be administered in a vacuo, but in accordance with the provisions of the Constitution and the law of the land. Thus, under the Constitution and the law, the justice to be administered is not an abstract justice as conceived by the Judex but justice according to law. Undoubtedly, the application and preservation of the rule of law is a sacred duty of the Court, which as judges we must strive to uphold, despite all odds! We should not be seen to be creating obstacles in the sacred path of justice according to law. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: ADMISSION; WHETHER THE FACTS ADMITTED NEED NOT BE PROVED

All these facts pleaded by the Appellant in the said 2nd further Amended statement of claim thereof have been admitted by the Respondent in the Amended Statement of Defence thereof, especially in paragraph 15. See page 94 of the Record, It is a trite principle of the law of evidence, that facts admitted need not be proved. See Section 75 of the Evidence Act (supra). Yet, in proof of the pleadings thereof, the Appellant gave an uncontradicted and unchallenged evidence, to the effect that his employment was governed by the Akwa Ibom state Civil Service Rules. See pages 452, 453 and 464 of the Record. These facts were duly admitted by the Respondents through the DW1. See page 195 of the Record. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

LABOUR LAW: EMPLOYMENT WITH STATUTORY FLAVOUR; THE EFFECT OF CONTRAVENING THE PROCESS DULY LAID DOWN IN THE APPLICABLE LAW IN AN EMPLOYMEENT WITH STATUTORY FLAVOUR

Having resolved the second issue in favour of the Appellant, it goes without saying, that the third issue must equally be resolved in his favour. It is trite, that in an employment with a statutory flavour, the procedure duly laid down in the applicable law must strictly be complied with in matters of discipline of such an employee. Thus, where the procedure in question is materially and flagrantly contravened, as in the instant case, any decision taken and affecting the right, reputation or tenure of office of the employee may be declared null and void by the Court. See BAMGBOYE V. UNILORIN (supra) @ 72 paragraphs A – C; IMASEUN V. UNIVERSITY OF BENIN (2011) ALL FWLR (Pt. 572) 1791 @ 1804 paragraphs E – H; OLUFEAGBA V. ABDUL – RAHEEM (supra) @ 1096 paragraphs G – H; DAODU Vs. UBA PLC (supra) @ 292 paragraph A. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

APPEAL: EXEMPLARY DAMAGES; CONDITIONS WHERE EXEMPLARY DAMAGES MAY BE AWARDED

Regarding the award of damages, it was posited that the Court below did not decide the issue of exemplary damages, one way or the other. It is trite, that exemplary damages may be granted by the trial Court under certain conditions, viz:
(a) When any action of servants of Government is oppressive, arbitrary or unconstitutional.
(b) When the Defendants conducts has been calculated by him to make a profit for himself; or
(c) When exemplary damages is expressly authorized by statute.
See ILOUNO v. CHIKWE (1991) 2 NWLR (Pt. 173) 316; ODIBA V. MUEME (1999) 10 NWLR (Pt. 622) 174 @ 190 paragraphs D-F; SHUGABA v. MINISTER, INTERNAL AFFAIRS (1981) 2 NCLR 459. In the instant case, it is obvious that the exemplary damages unjustly suffered by the Appellant are within the ambit of the category (a) aforementioned. Undoubtedly, the Court failed to take in to account the circumstances surrounding the primitive and aggravated conduct of the Respondents resulting in the unjust and premature termination of the Appellant’s employment. The Appellant’s evidence, clearly and in most unequivocal terms, shows that he’s most deserving of exemplary damages under principle (a), as authoritatively enunciated in ILOUNO V. CHIKWE (supra) 316; ODBA VS MUEMUE (supra) @ 190 paragraphs D – F. And I so hold. In the circumstance, the fifth issue is hereby equally resolved in favour of the Appellant. PER. IBRAHIM MOHAMMED MUSA SAULAWA, 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

DR. HENRY EFFIONG BASSEY Appellant(s)

AND

1. ATTORNEY-GENERAL, AKWA IBOM STATE
2. COMMISSIONER OF HEALTH & SOCIAL WELFARE, AKWA IBOM STATE
3. THE CHAIRMAN, AKWA IBOM STATE HOSPITAL MANAGEMENT BOARD Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the High Court of Akwa Ibom State, Coram Idongesit N. B. Isua, J; delivered on August 2, 2012 in suit No. HU/27/1998. By the judgment in question, the Court below granted the Appellant’s claim in part, and thereby ordered that the Appellant should be paid whatever was due there to consequent upon the termination of his employment by the Respondents in lieu of notice. Not unnaturally, dissatisfied with the said judgment, the Appellant filed the notice of appeal thereof on September 5, 2012 in the Court below.
BACKGROUND FACTS
Regrettably, the instant case has had a chequered history. Ever since the Appellant commenced the said suit on January 1, 1998, vide a writ of summons, the case lasted a total of 15 years before the Court below eventually delivered the vexed judgment on August 2, 2012.

?The Appellant, a specialist obstetrician and Gynaecologist, was employed into the Cross River State Civil Service in 1987 as a Senior Registrar II. Upon the creation of Akwa Ibom State, he was transferred to

the General Hospital, Etinan, as Medical Superintendent. In 1997, the Akwa Ibom State Government instituted an administrative panel of enquiry to investigate cases of missing hospital equipment in three General Hospitals, including Immanuel General Hospital, Eket. After receiving the investigation panel’s report, the Government appointed a committee to prepare a Government white paper on the said report. In line with the white paper submitted thereto, the Government terminated the appointment of the Appellant in the public interest. The Government further directed the Appellant to replace the missing Suomo water pump estimated at the cost of N150, 000.00, failing which he would be arraigned before the Taskforce on recovery of public property.

Dissatisfied with the Government action, the Appellant instituted the said suit in the Court below vide a writ of summons, thereby claiming some declaratory and injunctive reliefs against the Respondents. By the second Further Amended Statement of Claim thereof, the Appellant claims jointly and severally against the Respondents, thus:
a) A declaration that the 3rd Defendant’s letter of termination dated October

16, 1997, to the Plaintiff is null and void and of no consequence whatever.
b) A declaration that the Plaintiff is still in the employ of Akwa Ibom State Civil Service Commission and entitled to his salaries, benefits and promotions.
c) An Order compelling the 3rd Defendant and/or the Akwa Ibom State Civil Service Commissioner to re-instate the Plaintiff in such position commensurate to his true level in the civil service.
d) In addition or in the alternative to (c) supra, the sum of Fifty Million Naira (N50,000,000.00) being general and aggravated damages for the Defendants oppressive, unconstitutional and unlawful conduct.
e) The sum of Two Million Naira (N2,000,000.00) as cost of this litigation, See pages 145-156 of the Record of Appeal.

Pleadings were filed by the respective parties. The suit proceeded to a very protracted trial. At the conclusion of which, addresses were filed and duly adopted on 27/03/12 by the respective learned counsel. Thus, leading to the eventual delivering of the judgment on 02/08/12 in question, to the following conclusive effect:
In conclusion, the Plaintiffs case only succeeds in part. The

conclusion that the plaintiff should replace the Suomo Water Pump valued at N150,000.00 is hereby declared void and of no consequence whatsoever. It is hereby set aside. Furthermore, since the plaintiff was not dismissed but his appointment merely terminated, he should be paid whatever salary was due to him in lieu of notice. No order would be made as to costs.
See pages 502 to 513 of the Record.

The appeal having been duly entered on 22/1/12, the learned counsel proceeded to file the respective briefs of argument thereof. The Appellant’s brief was filed on 28/12/12.The Respondents’ brief was filed on 13/5/13, but deemed properly filed on 01/4/14. The Appellant’s reply brief was equally filed on that date.

The Appellant’s brief spans a total of 39 pages. At pages 5-6 of the said brief, the following five issues have been formulated:
(i) Was the trial Chief Judge right in not nullifying the proceeding leading to the decision of the administrative panel and government to terminate the Appellant’s employments when the Court held that the Appellants right of fair hearing was breached in the process?
(ii) Whether the Appellants

employment was not a statutory flavour for the Court to make an order of reinstatement, the employment having been unlawfully terminated.
(iii) Whether the Appellant did not gives evidence with regard to the nature of his employment, conditions of service and the manner in which the conditions had been breached as held by the Court below.
(iv) Was the learned trial Chief Judge right in failing to order the payment of the Appellants terminal benefits in accordance with relevant laws.
(v) Whether upon a claim (sic) view of the pleadings and credible evidence before the Court, the Appellant was not entitled to judgment at the trial Court.

The issue No.1 is extensively canvassed at pages 6-16 of the brief. In a nutshell, it’s submitted that the Government of Akwa Ibom State and the Administrative panel have breached the Appellant’s right of fair hearing – in the process leading to the termination of his employment. See page 508 of the Record. Further submitted, that inspite of the finding thereof, the Court below refused to nullify the entire proceeding of the Administrative panel, contrary to the requirement of the law. See Section 33(1) of

the 1979 Constitution (now Section 36(1) of the 1999 Constitution; EZE Vs. SPRING BANK PLC (2012) All FWLR (Pt.609) 1076 @ 1088 – 1089 paras H-B; AKINYANJU V. UNIVERSITY OF ILORIN (2011) All FWLR (pt. 569) 1080 @ 1133-1134 G-A; BAMGBOYEYE V. UNILORIN (2001) FWLR (Pt. 32) 12, et al.

The Court is urged to so hold, and accordingly answer Issue No. 1 in the negative.

The Issue No. 2 is canvassed at pages 16-20 of the brief, to the effect that if the Court agrees with the submission on Issue No.1, then the appointment of the Appellant unlawfully terminated still subsists from 02/10/97, the purported date of the said termination. See FNIC IDO – EKITI V. OLAJIDE (2011) All FWLR (Pt. 593) 1944 @ 1966 C-G. The Court is urged to order the reinstatement of the Appellant from 02/10/97, and Respondents to pay all his (outstanding) salaries and entitlements from that date: Section 16 of the Court of Appeal Act, 1990.

?Further submitted, that inspite of the pleading and evidence adduced at the trial, the Court below did not determine the nature of the Appellant’s employment. Yet, the duty to determine the nature of a contract of employment is the exclusive

preserve of the Court. See DOADU-OJU Vs. LAWAL (2001) FWLR (Pt.72) 2029 @ 2033.

The Court is urged to hold, that the Court below erred in law when it refused to order the reinstatement of the Appellant, his employment having been terminated in breach of fair hearing and the appointment being of statutory flavour.

The Issue No. 3 is argued at pages 20-27 of the said brief.
Adopting the submission on issue No. 1, it’s submitted that the procedure laid down under the applicable law must be fully complied with in matters of discipline of an employee. Thus, if the law is materially contravened, any decision affecting the right, reputation or tenure of office of the employee may be declared null and void in appropriate proceeding. See KWARA STATE CIVIL SERVICE COMMISSION Vs. ABIODUN (2009) (Pt. 493) 1315 @ 1346 F-G; IMASUEN Vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt. 572) 1791 @ 1804 E-H; OLUFEAGBA V. ABDULRAHEEM (supra) @ 1096 G-H.

The Court is urged to hold, that the Appellant placed enough evidence before the Court below to establish the nature of his employment, conditions of service and breach thereof.

?The Issue No. 4 is canvassed at

pages 27-30 of the brief. It’s submitted, inter alia, that by the provision of Section 3 of the Pensions Law, CAP. 95 Laws of Akwa Ibom State, 2000, where an employee has put in 16 years of service and above, he is entitled to pension and gratuity. Further submitted, that in the light of the statutory provisions (supra) and the evidence before the Court, the Appellant is entitled to his terminal benefits. See LONGE Vs. FIRST BANK OF NIG. PLC, (2010) All FWLR (Pt. 525) 238 @ 288 paras B-C, The Court is urged to so hold.

The last but not the least, is the issue No. 5, which has been extensively argued at pages 30-37 of the brief. Submitted, in the main, that the Appellant led evidence to show that he deserved exemplary damages under principle (a) enunciated in ILUONO V. CHIKWE (1991) 2 NWLR (Pt. 173) 316. See also ODIBA Vs. MUEMUE (1999) 10 NWLR (Pt. 622) 174 @ 190 D-F; SUGA Vs. MINISTER, INTERNAL AFFAIRS (1981) 2 NCLR 459. The Court is urged to so hold.

Conclusively, the Court is accordingly urged upon to allow the appeal and set aside the judgment of the Court below.

?Contrariwise, the Respondents’ brief spans a total of 19 pages. At page 6

thereof, three issues have been formulated for determination, viz:
1. Was the Learned Trial Judge right in not nullifying the proceedings leading to the decision of the Administrative Panel and Government to terminate the Appellant’s employment when the Court held that the Appellant’s right of fair hearing was breached, in the process. (Ground 1).
2. Whether the Appellant had proved his case to entitle him to his claims. (Ground 2, 3 and 6),
3. Was the Learned Trial judge right in failing to order the payment of the Appellant’s terminal benefits in accordance with the relevant laws.
(Ground 4).

The Issue No. 1 is canvassed at pages 6 – 10 of the said brief. In a nutshell, it’s submitted, that neither the Administrative Panel of Enquiry nor the Government of Akwa Ibom State breached the Appellant’s right to fair hearing in the process leading to the termination of his appointment. Further submitted, that the procedure adopted by the Administrative Panel of Enquiry in investigating the missing hospital equipment in the General Hospitals in the state, including Immanuel General Hospital, Eket in question, was proper.

?It is contended,

that the onus is on the party, complaining (Appellant) that his right to fair hearing has been denied, to supply evidence to establish his claim; he who asserts must prove. See Section 131 (1) & (2) of the Evidence Act 2011; UBA PLC Vs. JARGABA (2007) 11 NWLR (Pt. 1045) 247 @ 267-268; G & T INV. LTD Vs. WITT & BUSH LTD (2011) 8 NWLR (Pt. 1250) 500.

The Court is urged to so hold.
The Issue No. 2 is argued at pages 10-14 of the brief, to the conclusive effect, that from the totality of the claim and evidence thereof, the Appellant did not plead or give evidence of the nature of his employment, condition of service and the manner in which the said conditions have been breached. The Court is urged to so hold and affirm the judgment of the Court below.

?The Issue No. 3 is canvassed at pages 14-16 of the said brief to the effect that the Court below was right in failing to order the payment of the Appellant’s terminal benefits in accordance with the relevant laws. The reason being that the Appellant, both in his pleadings and evidence, challenged the termination of the appointment thereof in public interest. However, he neither claimed

pension and gratuity from the Respondents nor evidence on the said entitlement thereof. Thus, the law is that the Court can only grant a party the relief sought. See ATIVIC V. KABEL METAL (NIG.) LTD (2008) 10 NWLR (pt. 1095) 399 @ 422 C-D; CHIME V. ONYIA (2009) 2 NWLR (Pt. 1124) 1 @ 72; FIRST BANK OF NIG. PLC Vs. AKPARAOBONG COMMUNITY BANK LTD (2006) 1 NWLR (Pt. 962) 438 @ 437. The Court is urged to so hold.

The Court is conclusively urged upon to dismiss the appeal and affirm the decision of the Court below.

The Appellant’s reply brief, filed on 01/4/14, spans a total of 8 pages. By the said reply brief thereof, the Appellant once again urged upon the Court to allow the appeal and upturn the decision of the Court below and grant all the prayers thereof.

I have accorded a far-reaching regard upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the Record of Appeal, as a whole.

I have deemed it expedient to adopt the five issues raised in the Appellant’s brief for the determination of the appeal anon.
ISSUE NO. 1
The first issue

raises the question of whether the Court below was right in not nullifying the entire proceeding leading to the decisions of the Administrative panel and Government to terminate the Appellant’s employment, despite having held that his right to fair hearing was breached in the process.

Instructively, at page 508 paragraph 2 of the Record of Appeal, the Court below has observed to the following effect:
“It is true that there was no allegation against him (Appellant) by anybody and thus there was really nobody whom he should have cross-examined.”

Again, at page 509 of the same record, the Court below held, inter alia thus:
“While I agree that they failed to interrogate the plaintiff on the issue of the Suomo Water Pump, I would hesitate to conclude that he was denied a fair hearing in the entire saga.”

In the instant case, parties are ad idem that the Administrative Panel of Investigation was set up by the Government to investigate the circumstances surrounding the Missing of some equipment from General Hospitals in the state.

The Appellant was only invited by the said panel to submit a memorandum, which he duly did. The Appellant

equally gave (oral) evidence before the panel on how he handled the issue of the theft of the laboratory equipment and the suction machine, as the Medical superintendent of the hospital at the material time in question. Thus, there is no doubt, that the Appellant was only heard as a witness before the said panel.

Afortiori, the fact that the panel neither charged nor heard the Appellant in defence of his conduct and integrity as to any allegation made against him, is not at all in doubt. Equally trite, is the fact that the Appellant was never investigated regarding the allegation surrounding the circumstances of the stolen or missing item in question.
Thus, having arrived at a decision and recommendations that would probably affect the Appellant’s rights and interests, the Appellant ought to have been invited by the Respondents to defend himself of the allegations prior to the implementation of the panel’s adverse and incriminating allegation against him. That indeed is what the essence of the doctrine of fair hearing is all about. See UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD V. NNOLI (1994) 8 NWLR (Pt. 363) 376 @ 404 paragraphs F –

G, wherein the Apex Court held that:
In the observance of the principle of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigation panel which has no statutory power and the action on the recommendation by statutory body with requisite statutory powers, whereas the recommendation of the panel will not affect the civil right and obligations of the person whose act or omission is being investigated? the acting upon such recommendation does. Hence the implementation of the recommendation by a statutory body must comply strictly with rules of natural justice.
In UNTHMB V. NNOLI (supra), the Appellant was indeed investigated by the Administrative Panel of Inquiry. Contrariwise, in the instant case, the Appellant was never investigated by the said Administrative panel of inquiry, whose adverse recommendations led to the wanton and unilaterally premature termination of the Appellant’s employment on 16/10/97.

The letter of the termination of the Appellant’s employment was admitted in evidence at the trial as Exhibit Q. Two reasons were stated in Exhibit Q on the

termination of the Appellant’s employment, viz:
(i) The appointment is terminated in the public interest
(ii) The Appellant to replace the missing Suomo Water Pump.

I agree with the Appellant’s submission (page 13 paragraph 4.11 of the brief thereof), that from the reasons given in Exhibit Q, especially No. (ii) above, the Appellant was imputed to have committed an offence of stealing. See Section 383 (i) of the Criminal Code, Laws of the Federation of Nigeria, 1990; Section 392(i) of the Criminal Code Law of Akwa Ibom State, 2000.

Thus, flowing from the foregoing postulation, the Court below was in error, when it held that the Appellant’s appointment was terminated in the public interest and not on account of misconduct, fraud or any offence, for that matter.

Indeed it’s a well settled doctrine, that where an employer accuses the employee thereof of the commission of a crime (as in the instant case), the employer must give the said employee adequate opportunity to exculpate himself before a Court or tribunal vested with criminal jurisdictional competence before any disciplinary action can be taken by the employer against the

employee. See SPDC (NIG) LTD vs. OLAREWAJU (2002) 16 NWLR (Pt. 792) 38; TIONSHA v. JSC BENUE STATE (1997) 6 NWLR (Pt. 508) 307; OKWUSIDI v. LADOKE AKINTOLA UNIVERSITY (2012) ALL FWLR (Pt. 632) 1774 @ 1789 – 1790 paragraphs G – B; FOLORUNSHO VS. WAEC (2011) ALL FWLR (Pt. 556) 422 @ 480; paragraphs E – G.

In the circumstance, the issue No. 1 ought to be, and its hereby, resolved in favour of the Appellant.

?ISSUE NO. 2
The second issue raises the question of whether or not the Appellant’s employment was of statutory flavour for the Court below to make an order of reinstatement having been unlawfully terminated.
Instructively, it’s a trite principle, that once a dismissal or termination of the appointment of an employee is declared by a Court of competent jurisdictional competence to be null and void, the parties are back to the status quo. Thus, the said dismissed employee or whose employment is terminated must automatically be reinstated. See KWARA STATE CIVIL SERVICE COMMISSION V. ABIODUN (2009) (Pt. 493) 1315 @ 1346 paragraphs F – G; FMC IDO-EKITI v. OLAJIDE (2011) ALL FWLR (Pt. 593) 1944 @ paragraphs C-G.

?In the instant case, the

Appellant has pleaded in the 2nd Further Amended Statement of Claim thereof, dated 05/04/05, that he joined the erstwhile Cross River state Civil Service as a Senior Registrar II on July 6, 1987. Consequent upon the creation of Akwa Ibom state from the old Cross River state, he moved to the Akwa Ibom state Civil Service. See page 145 of the Record.

Yet, in proof of the pleadings thereof, the Appellant gave an uncontradicted and unchallenged evidence, to the effect that his employment was governed by the Akwa Ibom state Civil Service Rules. See pages 452, 453 and 464 of the Record. These facts were duly admitted by the Respondents through the DW1. See page 195 of the Record.

The Appellant tendered various documents which were admitted as (i) Exhibit A which describes the Appellant’s

appointment as pensionable; and (ii) Exhibits B, C and C1 respectively.

Apart from the exhibits in question, the Appellant equally testified that the Respondents stated that his appointment was terminated in accordance with Rule 04127 of the Civil Service Rules, upon which the Court below relied to justify the termination of his appointment. See pages 510 – 511 of the Record.

However, the Court below did not determine the nature of the Appellant’s employment. It is trite law, that it’s incumbent upon the Court to determine the nature of the contract of employment of the party as regards to whether it is governed by statute or under the common law. See DAODU Vs. UBA PLC (2004) 9 NWLR (Pt. 878) 276 @ paragraph H; OLORUNTOBA Vs. OJU-ABDUL-RAHEEM (2009) (Pt. 497) 1 @ 42 – 43 paragraphs G ? B; BAMGBOYE Vs. UNIVERSITY OF ILORIN (supra) @ 72 paragraph A.

In the circumstance, the second issue is equally hereby resolved in favour of the Appellant.

?ISSUE NO. 3
The third issue raises the question of whether or not the Appellant did not give evidence with regard to the nature of his employment, conditions of Service and the manner in which

the said conditions had been breached, as held by the Court below.

The testimony of the Appellant is to the effect inter alia, that his employment with Akwa Ibom State was governed and duly protected by the state Civil Service Rules. Thus, in the determination thereof, recourse must be had to the Rules in question.

?Afortiori, the

Appellant equally testified, that he was never called to the State Civil Service Commission regarding any allegation against him and relating to Immanuel General Hospital Eket, prior to the purported termination of his appointment. What’s more, the Appellant gave evidence regarding the fact, that he was neither issued with a query by the Respondents nor was he [ever] warned for any misconduct whatsoever in accordance with the Civil Service Rules. See page 475 of the Record.

As alluded to above, that evidence was neither challenged nor contradicted by the Respondents. As a matter of fact, the Court below found at page 508 paragraph 2 of the Record, to the effect that –
“It is true that there was no allegation against him by anybody and thus there was really nobody whom he should have cross-examined.”

By Section 14 (2) of the Civil Service Commission Law of Akwa Ibom State, 2000, the Appellant being on Grade Level 15, could only be disciplined by the State Civil Service Commission and not by the 3rd Respondent or the Board thereof. See Section 2 of Part II of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria, 1979 (as

amended); Section II of the Civil Service Commission Law (supra).

Contrariwise, by Rules 040101, 040102 and 040103 of the Akwa Ibom State Civil Service Rules (supra), the Civil Service commission delegated its full disciplinary powers to the 3rd Respondent and the Board thereof, regarding Officers on Salary Grade Levels 01 – 06. However, the said Civil Service Commission duly maintains the powers thereof as regards the discipline officers on Grade Levels 07 – 17 to which the Appellant belongs. See Section 187 of the 1979 Constitution (supra).

Undoubtedly, by the statutory powers ascribed exclusively to the State Civil Service commission, the 3rd Respondent and the Board thereof lacked the power to terminate the appointment as they purportedly did by issuing out Exhibit Q in question. Any such letter of termination of appointment thereof (as Exhibit Q) ought to have emanated directly from the commission itself, and not the 3rd Respondent or the Board thereof.

What’s more, by the provision of Rule 040434 of the Akwa Ibom State Public Service Rules, 2010 –
“Where a tribunal of inquiry set up by the government makes recommendation of a

disciplinary nature on an officer the Akwa Ibom State Civil Service commission or its agents shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him by the tribunal of inquiry…”

It is so obvious from the records, that Exhibit Q is in a flagrant breach of the mandatory notice of one month or salary in lieu to which the Appellant ought to have been entitled. Not surprisingly, at page 512 of the Record, the Court below aptly found that –
“The letter (Exhibit Q) purporting to terminate his appointment is certainly defective in that it does not say anything about payment of salary in lieu of notice.”

The Respondents themselves admittedly pleaded that the Appellant’s employment was terminated on ground of incompetence and dereliction of duty. See paragraph 28 of the Amended Statement of defence @ page 95 of the Record and Rule 04123 of Exhibit H.

?Yet, it’s a trite and well settled law, that either the employer or employee may determine the contract of employment by merely giving due notice of the required length of time to terminate the contract. Thus, terminating an

employment of an employee without a notice by an employer, tantamount to a summary dismissal which in itself is a flagrant and wanton breach of the contract, except where there are cogent grounds to justify it. See EZE Vs. SPRING BANK PLC (supra) @ 1099 paragraphs A-B.

In the circumstance, the third issue is hereby equally resolved in favour of the Appellant.

ISSUE NO.4
The fourth issue raises the question of whether or not the Court, below was right in failing to order the payment of the Appellant’s terminal benefits in accordance with the relevant laws.

By Section 190 (1) of the 1979 Constitution (supra), it’s provided that:
“Subject to the provisions of Subsection (2) of the section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by law.”

Afortiori, the provision of the said Subsection (2) of Section 190 of the 1979 Constitution (supra) is to the effect that –
“(2) any benefit to which a person entitled in accordance with or under such law as referred to in Subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as

is permissible under any law including the code of conduct.”

Thus, in line with the foregoing provisions of Sections 190 (1) and (2) of the 1979 Constitution (supra), the Akwa Ibom State Pensions Law, CAP. 95 LAWS of Akwa Ibom State, 2000, was duly enacted.

By paragraphs 61 & 69 of the 2nd Further Amended Statement of Claim thereof, the Appellant very clearly pleaded that he’s entitled to receive pension and gratuity, consequent upon the termination of his employment.

By Section 26 of the Akwa Ibom State Pension Law (supra), pensionable service denotes Service or any approved Service, which may be considered in computing an officer’s pension under the law.

The Appellant pleaded and tendered exhibits (inclusive of Exhibit A) to the effect that (i) his appointment with the State Civil Service took effect from 06/07/87; (ii) he was 47 years of age as at the material time his appointment was terminated; (iii) having reached the age of 45 years, he was entitled to pension and gratuity by law.

The Appellant equally argued, that by virtue of Exhibit Q, his case was not one on wrongful termination but, rather unlawful termination of the

appointment thereof. Thus, the Appellant is not required to plead law, but (only) material facts except where some specific laws should be pleaded. See OKOEBOR VS POLICE COUNCIL (2003) 40 WRN 93 @ 114 LINES 24 – 45; ASMAN-MAN AND MECH COY LTD V. SPRING BANK PLC (2012) ALL FWLR (Pt. 613) 1864 @ 1891 paragraph E. 11; LONGE V. FIRST BANK PLC (2010) ALL FWLR (Pt. 525) 238 @ 288 paragraphs B – C.

In the circumstance, the fourth issue ought to be, and same is hereby, resolved in favour of the Appellant.

ISSUE NO. 5
The fifth issue raises the question of whether or not upon a calm view of the pleadings and credible evidence adduced before the Court below, the Appellant was not entitled to judgment at the Court below.

As it were, the fifth and indeed last issue was prompted by the remark of the Court below, to the following effect:
“If the plaintiff had a good case I would have been very happy to entered (sic) judgment for him.”
See page 513 of the Record.

In the instant case, the Appellant testified as PW2 at the trial of the suit. He led evidence [in support of his pleadings] that was obviously unchallenged, uncontradicted and

uncontroverted as the Respondents not surprisingly declined to cross-examine him thereon. The Respondents in their Amended Statement of Defence, admitted that the Appellant was their employee, and that by virtue of that employment his contract of Service had a legal or statutory favour. Indeed, the law is trite, that unchallenged and/or uncontroverted fact needs no further proof. Moreso, when such a fact as pleaded is admitted in evidence. See HILARY FARMS LTD V. MIV “MAHATRA” (2007) 153 LRCN 34 @ 57 – 58 paragraphs JJ – A; IRIRI v. ERHRHOBARA (1991) 2 NWLR (Pt. 173) 252 @ 255; OKOEBOR v. POLICE COUNCIL (supra) 121 lines 34 – 45.

The Appellant insisted in his testimony that he was not responsible for the missing of any of the items recovered mentioned in Exhibits F, L and O. He further maintained, that the investigation panel could not have made the recommendation without having an input from the police, who knew who, where and how the items were recovered from. And that the panel downplayed on that material fact which was withheld by the Respondents. Thus, the Court is urged to invoke the provision of Section 149 (d) of the Evidence Act, 1990, to the

effect, that if the said aspect of the panel’s Report was produced, it would have been favourable to the Appellant. See also Section 167 (d) of the Evidence Act, 2011, as amended.

Regarding the award of damages, it was posited that the Court below did not decide the issue of exemplary damages, one way or the other.

It is trite, that exemplary damages may be granted by the trial Court under certain conditions, viz:
(a) When any action of servants of Government is oppressive, arbitrary or unconstitutional.
(b) When the Defendants conducts has been calculated by him to make a profit for himself; or
(c) When exemplary damages is expressly authorized by statute.
See ILOUNO v. CHIKWE (1991) 2 NWLR (Pt. 173) 316; ODIBA V. MUEME (1999) 10 NWLR (Pt. 622) 174 @ 190 paragraphs D-F; SHUGABA v. MINISTER, INTERNAL AFFAIRS (1981) 2 NCLR 459.

In the instant case, it is obvious that the exemplary damages unjustly suffered by the Appellant are within the ambit of the category (a) aforementioned. Undoubtedly, the Court failed to take in to account the circumstances surrounding the primitive and aggravated conduct of the Respondents resulting

in the unjust and premature termination of the Appellant’s employment. The Appellant’s evidence, clearly and in most unequivocal terms, shows that he’s most deserving of exemplary damages under principle (a), as authoritatively enunciated in ILOUNO V. CHIKWE (supra) 316; ODBA VS MUEMUE (supra) @ 190 paragraphs D – F. And I so hold.

In the circumstance, the fifth issue is hereby equally resolved in favour of the Appellant.

Hence, against the backdrop of the foregoing postulations resulting in resolving all the five issues in favour of the Appellant, there is no gainsaying the fact, that the instant appeal is grossly meritorious. Resultantly, the appeal is hereby allowed by me. The judgment of the Akwa Ibom State High Court delivered on August 2, 2012 in suit No. HU/27/1998 by N. B. Isua, J; is hereby set aside.
CONSEQUENTIAL ORDERS
It’s trite, that the term Justice fundamentally denotes the fair and proper administration of Justice. Afortiori, the term substantial justice means justice fairly administered according to rules of substantive law, regardless of any procedural errors not affecting the litigant’s (substantive) rights. In essence,

justice denotes a fair trial of a case on the merits. See BLACK’S LAW DICTIONARY 8TH Edition, 2004 @ 881.
Thus, in the strict legal sense thereof, justice is characteristically the end result of an effective application of the law of the land by a Court of competent jurisdictional competence. In a broader and more popular sense:
“Justice is fairness, fairness in adjudication, fairness in the process of adjudication and in the ultimate decision reacted by the decision-making body or authority. It is that kind of justice that accords not only with the rule of law, but also ensures equality of treatment to all and sundry. For justice according to law may not necessarily achieve this end. For a strict application of an unjust can lead to an unjust decision and an unjust decision is sure to result in injustice and create problems for the entire system. Therefore, for justice to be according to law, the law itself must be just; fair and equitable.”
See MM A. AKANBI, PCA Emeritus: THE JUDICIARY AND THE CHALLENGES OF JUSTICE @ 33.
?Indeed, it’s a truism that justice can not in any way be administered in a vacuo, but in accordance with the provisions

of the Constitution and the law of the land. Thus, under the Constitution and the law, the justice to be administered is not an abstract justice as conceived by the Judex but justice according to law. Undoubtedly, the application and preservation of the rule of law is a sacred duty of the Court, which as judges we must strive to uphold, despite all odds! We should not be seen to be creating obstacles in the sacred path of justice according to law. As the Apex Court once immutably reiterated:
“The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the Government and all persons in Nigeria. The law should be even handed between the Government and the citizen.”
See GOVERNOR OF LAGOS STATE Vs. OJUKWU (1986) 1 NWLR (Pt. 18) 621 per Obaseki, JSC (of blessed memory). Equally recall the immutable dictum of the (erstwhile) House of Lords of England, thus:
“In this country, amid the clash of arms, the laws are not silent. They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are

now fighting, that the judges are no respecter of persons and stand between the subject and any attempted encroachment of his liberty by the executive, alert to see that any coercive action is justified by law.” See LIVERSIDGE Vs. ANDERSON (1942) AC 206 per Lord Aitken @ 244.

Consequently, I have deemed it expedient to order as follows:
(i) That the 3rd Defendant’s letter of termination, dated October 16, 1997, to the plaintiff (Appellant) is null and void and of no effect and consequence whatsoever.
(ii) That the plaintiff (Appellant) is still in the employ of Akwa Ibom State Civil Service Commission and (therefore) entitled to his salaries, benefits.
(iii) That the 3rd Defendant is hereby ordered to reinstate the plaintiff (Appellant) in such position commensurate to his true level in the Civil Service.
(iv) In the alternative to (iii) supra, the plaintiff shall be entitled to the sum of Fifty Million Naira N50,000,000.00) being general, exemplary and aggravated damages for the Defendants’ (Respondents) oppressive, unconstitutional and unlawful conduct
(v) The plaintiff (Appellant) shall equally be entitled to Fifty Thousand

Naira (N50,000,00) as the cost of litigation.

CHIOMA EGONDU NWOSU-IHEME J.C.A.: I was privileged to read the draft of the judgment delivered by my learned brother, I. M. M. SAULAWA, JCA. I agree with his reasoning and conclusion.
I entirely adopt the facts of this case as set down in my learned brother’s lead judgment.
Having resolved all the issues in favour of the Appellants, I agree that this appeal is meritorious and that it be allowed.
The judgment of the Akwa Ibom State High Court delivered by Idongesit N. B. Isua, J, delivered on August 2, 2012 in Suit No. HU/27/1998 is hereby set aside.
I abide by the consequential order made by SAULAWA, JCA in the lead judgment.

ONYEKACHI AJA OTISI J.C.A.: I had the privilege of reading, in advance, a draft copy of the Judgment just delivered by my learned Brother, I.M.M. Saulawa, JCA, allowing this appeal. The issues raised in this appeal have been fully addressed by my learned brother, and, I am in complete agreement with his reasoning and conclusions, which I adopt as mine.
I also allow this appeal and abide by the

Orders made in the lead Judgment, including the order as to costs.

Appearances

Nse Williams, Esq.For Appellant

AND

unrepresentedFor Respondent