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DR. PRINCE CHRISTIAN IFEANACHOR UMOKE VS HOUSE OF ASSEMBLY, EBONYI STATE AND ORS

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 20th July 2018

                                                

SUIT NO. NICN/ABK/04/2015

 

BETWEEN

 

  1. PRINCE CHRISTIAN IFEANACHOR UMOKE

                             

CLAIMANT

 

AND

 

  1. HOUSE OF ASSEMBLY, EBONYI STATE               
  2. CLERK, HOUSE OF ASSEMBLY, EBONYI STATE              
  3. RT. HON. ODEFA OBASI ODEFA                                    

CHAIRMAN, AD HOC COMMITTEE

  1. MR. BEN. IKECHUKWU NWOFOKE                      

[SECRETARY 1, AD HOC COMMITTEE]

  1. MRS. CHINYERE OGBAGA                                   

[SECRETARY 2, AD HOC COMMITTEE]

[For themselves and on behalf of the Members of House

Ad Hoc Committee on Financial Operations of the 13 LGAS

and 64 LDCS of Ebonyi State]

  1. ATTORNEY GENERAL EBONYI STATE                
  2. CIVIL SERVICE COMMISSION, EBONYI STATE  
  3. HEAD OF SERVICE, EBONYI STATE                    
  4. EBONYI STATE GOVERNMENT                                                         

10.REV. FR. ABRAHAM NWALI                                

     11.REV. FR. PETER OGBONNAYA                            

[For themselves and on behalf of the Members of Technical

Committee to Review the House of Assembly Report on Financial

Operations of the 13 LGAS and 64 LDCS of Ebonyi State]

DEFENDANTS

 

 

REPRESENTATION:

 

Friday Ogazi Esq. with Petrus Elechi Esq., Joseph Nwanga Esq., Clinton Umoke Esq. and Florence Agbakoba [Mrs.] for the Claimant

Roy O. Umahi Nwaeze Esq. with Nnachiuwa Okoro Esq., John Obini Esq.,  Solomon Agbom Esq. and Gold Chinoso Onuora [Ms.] for the Defendants

JUDGMENT

 

  1. The Claimant commenced this action by a General Form of Complaint dated 7th December 2015 and filed on 11th December 2015. By a further amended statement of facts dated 10th May 2017 and filed on 30th October 2017, the Claimant claimed against the Defendants as follows:

  1. A declaration that by the provisions of the Legislative House Law, CAP 100 Laws of Ebonyi State 2009, the purported invitations made by the Ad hoc Committee through the Clerk and the proceedings are ultra vires the powers of the Committee and contrary to the provisions of the law and thus a nullity.

  1. A declaration that the recommendations of the Ebonyi State House of Assembly Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 – April 2015 recommending the dismissal and prosecution of the Claimant or any other recommendation regarding the Claimant’s employment as contained in the report of the Committee is irregular, unlawful, ultra vires and a nullity.

  1. An order of Court quashing or setting aside the recommendations of the Ebonyi State House of Assembly Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 – April 2015 as it relates to the Claimant as same was arrived at in a manner which violates the principle of natural justice and the Claimant’s right to fair hearing as guaranteed under section 36 of the 1999 Constitution of the Federal Republic of Nigeria [as amended].

  1. An order of Court quashing or setting aside the report and recommendations of the Technical Committee to Review the Report of Ebonyi State House of Assembly Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 – April 2015 as it relates to the Claimant as same was arrived at in a manner which violates the principle of natural justice and the Claimant’s right to fair hearing as guaranteed under section 36 of the 1999 Constitution of the Federal Republic of Nigeria [as amended].

  1. An order of injunction restraining the Defendants, their agents and privies from proceeding or acting against the Claimant based on the recommendations of the Ebonyi State House of Assembly Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 – April 2015 as same was arrived at contrary to law and in a manner which violates the principle of natural justice and the Claimant’s right to fair hearing as guaranteed under section 36 of the 1999 Constitution of the Federal Republic of Nigeria [as amended].

  1. An order of Court declaring the indefinite suspension of the Claimant on the order of the Head of Service, Ebonyi State via a letter dated 18th December 2015 as being irregular, unconstitutional, unlawful and contrary to the rules governing their terms of employment.

  1. An order of Court setting aside the order of dismissal from service made against the Claimant by the 8th Defendant via a letter of dismissal dated 26/01/2017 with ref. no. EBS/CSC/AD.336/1/2.

  1. An order of Court directing the 6th – 8th Defendants to reinstate the Claimant to his position and the enjoyment of all his salaries and entitlements from the 30th September 2015 – 6th April 2016.

  1. A declaration that the Claimant is entitled to his retirement benefits and gratuity from the 6th April 2016 and continuously as applicable to Permanent Secretaries in Civil Service of Ebonyi State.

  1. An order of Court compelling the Defendants to pay the Claimant all his outstanding salaries from the months of October 2015 – March 2016, severance benefits, pensions and gratuity as applicable under their terms of employment to wit:

[i].     The sum of N2, 802, 000 [two million, eight hundred and two thousand naira] being outstanding salaries for the months of October 2015 – March 2016 at the rate of N467, 000 per month.

[ii].    The sum of N16, 846, 245 as gratuity which became due on 6th April

2016.

[iii].   The sum of N6, 538, 000 being unpaid arrears of pension for the

months of April 2016 – May 2017 at the rate of N467, 000 per month.

[iv].   The sum of N560, 400 for unpaid leave allowance for the year 2016 at the rate of 10% of annual salary.

[v.]    An order directing the Ebonyi State Government and its agents or privies to continue to pay and discharge the payment of the Claimant’s monthly pension for life at the rate of N467, 000 per month as and when due.

  1. N20, 000, 000 [twenty million naira] general damages.
  2. Cost of this action.

  1. The Claimant filed with the complaint a statement of facts, witness deposition of the Claimant, list of documents and copies of the documents. The originating processes were served on the Defendants on 11th December 2015. The Defendants filed their defence processes on 12th April 2016. By leave of Court granted on 4th April 2017, the Claimant joined the Head of Service, Ebonyi State as the 8th Defendant and amended his originating processes accordingly. Also, by leave of Court granted on 23rd October 2017, the Claimant joined the 9th to 11th Defendants and amended his originating processes to reflect the joinder. By leave of Court granted on 30th November 2017, the Defendants amended their statement of defence. The Claimant thereafter filed a reply to the amended statement of defence. Trial commenced on 6th March 2018 and was concluded on 13th April 2018. The Claimant testified for himself and tendered 34 exhibits in proof of his claim. The Defendants called two witnesses and tendered three exhibits. The case was thereafter adjourned to 12th June 2018 for adoption of final written addresses. The defence Counsel, Mr. Nwaeze, adopted the Defendants’ final written address dated 7th May 2018 and reply on point of law dated 11th June 2018 as his argument in support of the defence. Learned Counsel for the Claimant, Mr. Ogazi, also adopted the Claimant’s final written address dated 31st May 2018 but filed on 1st June 2018 as his argument in support of the claim. The case was consequently set down for judgment.

CLAIMANT’S CASE

  1. The summary of the Claimant’s case is that he was a Permanent Secretary in the Ebonyi State Public Service deployed to the Ministry of Local Government and Chieftaincy Affairs, exhibit 5, until 23rd June 2015 when he was redeployed to the State Civil Service Commission as Permanent Secretary, exhibit 7 and subsequently to Inter-Party Dialogue, exhibit 8 on 20th August 2015 before his suspension from office without pay on 2nd October 2015, exhibit 9. The Claimant was recalled from suspension on 7th December 2015, exhibit 13, served two queries, exhibits 14 and 15 on 11th December 2015 which he replied, exhibit 16. He was thereafter placed on indefinite suspension dated 18th December 2015, exhibit 17, necessitating this suit. During the pendency of this suit, the Governor of Ebonyi State on 22nd January 2016 set up a Technical Committee to review the Report of Ebonyi State House of Assembly Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 – April 2015, which recommended the dismissal of the Claimant from service, refund of N28, 000,000 and prosecution. Thereafter, the 8th Defendant set up a 3-man Disciplinary Committee to review the findings of the Technical Committee on the basis of which the Claimant was dismissed from service by letter dated 26th January 2017 and made to take effect from 1st January 2016, exhibit 18.

DEFENDANTS’ CASE

 

  1. The Defendants’ case as gleaned from their amended statement of defence dated and filed on 29th November 2017 is that the 1st Defendant was merely carrying out its oversight functions when it recommended the dismissal of the Claimant from service, refund of N28, 000,000 and prosecution to the Governor of Ebonyi State, exhibit DW1; and that the Claimant and the Commissioner for Local Government, Rural Development and Chieftaincy Affairs misused their positions to make illegal deductions from and diverted Council funds without recourse to law. Arising from the report of the 1st Defendant, the Ebonyi State Ministry in charge of Local Government found a prima facie case of fraud and abuse of office established against the Claimant and by letter dated 30th September 2015 recommended his suspension.  It is also the case of the Defendants that no prejudicial step was taken against the Claimant consequent upon the setting up of the Technical Committee superseded by the Exco Committee and that both Committees were non-adjudicating bodies set up to advise the Governor of Ebonyi State on appropriate step to take in the circumstances of allegations of massive misappropriation of Local Government funds.

 SUBMISSION ON BEHALF OF THE DEFENDANTS

  1. The Defendants formulated four issues for determination in their final written address, namely:

  1. Whether the Claimant’s action and claims bordering on his dismissal from service is not statute-barred?

  1. Whether, if the action is not statute-barred, the Claimant has proved his case against the Defendants to be entitled to the reliefs sought in the further amended statement of facts?

  1. Whether the Claimant’s suspension was wrongful?

  1. Whether the aspect of this suit relating to the Technical Committee is not res judicata?

Arguing issue one, learned Counsel for the Defendants submitted that by challenging his dismissal from service after the lapse of three months, that part of the action is statute-barred in view of the clear subsisting and binding provisions of the Public Officers Protection Law, CAP 106, Vol. VI, Laws of Eastern Nigeria, 1963, which is a statute of limitation and referred to Raleigh Industries [Nig.] Ltd. v. Nwaiwu [1994] 4 NWLR [pt.341] 760 at 764 and Nwaka v. The Head of Service, Ebonyi State & Ors. [2007] LPELR-8126[CA]. It was therefore argued that the Court lacks jurisdiction to determine the suit. Learned Counsel distinguished the cases of Peter I. Onwe v. Civil Service Commission, Ebonyi State & Ors. Suit no. NICN/ABK/01/2013, Onu Agha Uduma v. A. G. Ebonyi State [2013] LPELR-21267[CA] and Oduko v. Government of Ebonyi State [2004] 13 NWLR [pt.891] 487 on the ground that the decisions were made in error and the voidity of the Limitation Law of Ebonyi State CAP 102 Laws of Ebonyi State 2009 was not brought to the attention of the Courts which decided them. He contended that the Limitation Law of Ebonyi State is not a law validly made by the Ebonyi State House of Assembly.

On issue two learned Counsel explained that the Claimant seeks four declaratory reliefs and some consequential reliefs and that the fate of the consequential reliefs is dependent on the outcome of the declaratory reliefs. It was argued that the Claimant in a claim for declaratory reliefs has the onerous burden of proving he is entitled in law to the relief claimed and referred to Chukwuma v. SPDC [Nigeria] Ltd. [1993] LPELR-864[SC]. Learned Counsel concluded that the Claimant did not present sufficient evidence to warrant the making of a finding of fact by the Court on the ground that the Claimant’s documents were dumped on the Court and as a result no probative value can be attached to it. It was also contended that the 1st, 2nd, 3rd, 4th, 5th, 10th and 11th Defendants are not proper parties to this case. Learned Counsel submitted that the claim for general damages is not grantable in a claim for alleged wrongful dismissal and referred to Selcon Tannery Ltd. v. Abubakar & Ors. [2013] LPELR-21412[CA] at pages 21-22 and SPDC Ltd. v. Olarewaju [2008] 12 SC [pt.111] 27.

On issue three, it was argued that suspension cannot amount to breach of the employee’s fundamental rights as it has no bearing with issues of common law rights or fundamental right under the Constitution. It was also argued that suspension cannot be questioned on the ground that it could not be done unless the employee is given notice of the charge and opportunity to defend himself because the rules of natural justice do not apply to cases of suspension. Learned Counsel referred to the cases of Yussuf v. VON Ltd. [1996] 7 NWLR [pt.463] 746 and Longe v. FBN Plc [2010] 6 NWLR [pt.1189] 1.  He argued further that suspension is neither a determination of the contract of employment nor a dismissal of the employee; and the letter suspending the Claimant did not in any way state that the Claimant had ceased to be a Permanent Secretary and urged the Court to resolve issue three in Defendants’ favour.

On issue four, it was contended that the aspect of this suit relating to the Technical Committee is res judicata, the issue having been decided by this Court in Suit no. NICN/ABK/M1/2017 between Dr. Prince Christian Ifeanachor Umoke v. Ebonyi State Government & Ors.; and referred to the case of Osunde v. Ajamogun [1992] 6 NWLR [pt.246] 156. Learned Counsel submitted that a plea of estoppels per rem judicatam has the effect of ousting the jurisdiction of the Court and urged the Court to resolve the issue in the Defendants’ favour.

 

SUBMISSION ON BEHALF OF THE CLAIMANT

  1. The Claimant raised three issues for determination in his final written address, to wit:

  1. Whether the Defendants complied with the mandatory procedure for disciplinary process as provided for under the rules governing the terms of employment of the Claimant – a full time, pensionable civil servant, and if the answer is in the negative, whether the Claimant is not entitled to have his dismissal set aside and the reliefs sought granted to him as per his claim?

  1. Whether from the state of pleadings, rules of this Court and evidence adduced at trial and applicable laws, has the Claimant made out a case to be entitled to the reliefs sought?

  1. Whether the defences of statute bar and res judicata can avail the Defendants in the circumstances of this case?

Arguing issue one, learned Counsel contended that the Defendants breached the mandatory procedure for discipline of the Claimant, whose employment is protected by statute; and as a result of the non-compliance, the Claimant is entitled to have his dismissal declared null and void and the reliefs sought in this suit granted. It was submitted that where an employment is with statutory flavour, as in this case, it must be terminated strictly in the manner prescribed by statute and referred to P.H.C.N Plc v. Offoelo [2013] All FWLR [pt.664] 1, Psychiatric Hospital Management Board v. Ejitagha [2000] All FWLR [pt.9] 1510 and Shitta-Bey v. F.P.S.C [1981] 1 SC 40. Learned Counsel explained that the applicable statutes and regulations are the Constitution of the Federal Republic of Nigeria 1999, the Public Service Rules 2000, exhibit 1, Guidelines for Appointments, Promotions and Discipline in the Civil Service, exhibit 26, Ebonyi State Government Circular on Review of Terminal Benefits for Heads of Service and Permanent Secretaries, exhibit 25 and the Pensions Reform Act, 2014. It was further argued that from a combined reading of section 04102 and 04103 of the Public Service Rules, 2000 the appropriate authority to exercise disciplinary control over a Permanent Secretary is the 7th Defendant. It was contended that the suspension of the Claimant by the 8th Defendant, exhibit 9, for 3 months without salary and query constitutes a breach of the rules of fair hearing and labour right and referred to section 04405 of the Public Service Rules 2000 and UBA Plc v. Oranuba [2014] 2 NWLR [pt.1390] 1 ratio 3. It was further contended that for a prima facie case the nature of which is serious to be established against the Claimant, there must be a hearing, he must have been queried on the allegation against him and accorded a fair hearing and relied on J.S.C. Cross River State v. Young [2014] All FWLR [pt.714] 40 at 66. Learned Counsel argued that in dismissing the Claimant the 7th Defendant breached the provisions of section 202 of the Constitution of the Federal Republic of Nigeria 1999 and section 04306[i] of the Public Service Rules 2000 and urged the Court to declare the dismissal a nullity and reinstate the Claimant. He referred to Iderima v. Rivers State Civil Service Commission [2005] 16 NWLR [pt.951] 378, Govt of Kwara State v. Lawal [2007] 13 NWLR [pt.1051] 347 and Federal Civil Service Commission v. Laoye [1989] 2 NWLR [pt.106] 652 at 683. Learned Counsel submitted that retrospective dismissal is untenable in law and referred to Underwater Engineering Co. Ltd. v. Dubefon [1995] 6 NWLR [pt.400] 156 ratio 1.

On issue two, learned Counsel argued that by the state of the pleadings, rules of this Court, uncontradicted evidence adduced at the trial and applicable laws, the Claimant has made out a case entitling him to the reliefs claimed and urged the Court to answer the question in the affirmative.

On issue three, it was submitted that the defences of statute bar and res judicata cannot avail the Defendants. On statute bar learned Counsel submitted that since the cause of action involves non-payment of salaries, the injury is one of a continuing nature and cannot be subject to the Public Officers Protection Law. It was also contended that the Public Officers Protection Law, 1963 Laws of Eastern Nigeria has been repealed by sections 42 and 44 of the Limitation Law of Ebonyi State and referred to the cases of Onu Agha Uduma v. Attorney General of Ebonyi State [2013] LPELR-21267 and Peter I. Onwe v. Civil Service Commission, Ebonyi State & Ors., Suit no. NICN/ABK/01/2013. On the plea of res judicata, learned Counsel contended that the mere use of the phrase “dismissed” does not portend the finality of the action. It must be construed with reference to the facts of the case and referred to page 537 of Black’s Law Dictionary, 9th edition and Obasi Bro. Co. Ltd v. M.B.A.S Ltd [2005] 9 NWLR [pt.929] 117 ratio 4.

REPLY ON POINT OF LAW

  1. By way of reply on point of law, the Defendants contended that the Claimant did not plead the mandatory procedure for his discipline or the terms and conditions of his contract of service and relied on Ogundipe v. NITEL [2015] LPELR-24920[CA] 20. It was also contended that the issue of suspension of the Claimant has become academic and the Court cannot consider academic issues.

 

COURT’S DECISION

  1. I have considered the processes filed in this suit and submissions of learned Counsel for the parties. In my view, the main issue for determination in this suit is whether the dismissal of the Claimant is wrongful and accordingly null and void. There are some ancillary issues raised by the parties in their pleadings and written submissions and I will deal with them in the course of this judgment. After close of the case for the parties, the Court directed Counsel to address it on the propriety of a witness amending his written deposition from the witness box and whether a party can rely on witness depositions and documents attached to its pleading which has been amended. Learned Counsel duly addressed the Court on these issues. On the first issue, both learned Counsel agree that the witness can correct an error in his written deposition from the witness box and I entirely agree with them using the analogy of correcting an affidavit from the witness box as laid down by the Supreme Court in Adejumo & Anor. v. Governor of Lagos State [1970] NSCC [vol.6] 134 at 136 which decision was followed in Hon. Abraham Adeolu Adeleke & Anor. v. Hon. Muyiwa Inakoju & 17 Ors. [2006] LPELR-7655[CA] at pages 19-21. On the second issue, there is no agreement. Learned Counsel for the Defendants argued that where a statement of defence is amended, it does not affect the accompanying processes and a party may choose to use all or any of his written statements on oath. Learned Counsel for the Claimant submitted that by Order 26 rule 5 National Industrial Court [Civil Procedure] Rules 2017, the Defendants’ amended statement of defence must be accompanied with their witness statement on oath. It is trite that an amendment of pleading relates back to the time the pleading was filed. The amended pleading supersedes the earlier pleading. Accordingly, what stood before the amendment ceases to define the issues between the parties. Thus, the amended statement of defence dated 29th November 2017 superseded the statement of defence dated 12th April 2016 with the attached witness depositions. Consequently, the Defendants’ witnesses’ statements on oath dated 12th April 2016 are irrelevant and ought to be expunged from the records as they no longer define the issues for trial in this suit. I am fortified in this conclusion by the cases of Joseph Ebeilubhubi Oseyomon & Anor. v. S. D. Ojo [1993] 6 NWLR [pt.299] 344 at 361, Nigerian Telecommunication Ltd. v. Dr. R. G. M. Ikpi [2007] LPELR-4617[CA] at page 10, Bashiru Atanda v. H. Saffeiddine Transport Ltd. [2007] LPELR-8303[CA] at page 14 and University of Ilorin v. Mr. A. I. Adeniran [2007] 6 NWLR [pt. 1031] 498 at 543. In the Oseyomon v. Ojo case, Ogundere, J.C.A. [as he then was] held:

“As each amended or further amended Statement of Defence replaced the previous one, it goes without saying that the further amended Statement of Defence of the 2nd Defendant replaced the original which had a counterclaim, thus eliminating the counterclaim aforesaid.”

  1. The next issue relates to the defences of limitation of action and estoppel per rem judicatam raised by the Defendants. The defence of limitation of action is anchored on the Public Officers Protection Law, CAP 106, Vol. VI, Laws of Eastern Nigeria, 1963. The issue of applicability of this law in Ebonyi State has been laid to rest by the Court of Appeal in the case of Onu Agha Uduma v. A. G. Ebonyi State [2013] LPELR-21267[CA]. In that case, the Court of Appeal interpreted the effect of sections 42 and 44 of the Limitation Law, CAP 102, Laws of Ebonyi State 2009 and held on page 39 of the certified true copy of the judgment as follows:

“The import of the above provision as rightly suggested by the learned counsel for the Appellant is that limitation of time in actions against Public Officers should be calculated as the same period of limitation against private individuals. In other words, the discrimination in the calculation of limitation period which was previously in favour of Public Officers has been removed. In the instant case, even though the cause of action arose on 2nd day of July 2009, the Plaintiff/Appellant’s commenced the action by a writ of summons dated 18/5/2010 after the commencement of the Ebonyi Limitation Law Cap 102 on 23rd October 2009. It follows that the applicable procedure law in this case is the Limitation Law of Ebonyi State and not the Public Officers [Protection] Law, Laws of Eastern Nigeria 1963 as erroneously held by the learned trial judge.”

 

The principle in that case applies with equal force to this case. However, learned Counsel for the Defendants urged the Court to distinguish that decision from this case as the issue of ‘voidity’ of the Limitation Law was not raised in that case. Illuminating as the submission of learned Counsel is, I beg to differ. First and foremost, the issue canvassed by Counsel falls outside the jurisdiction of this Court. Secondly, although the issue of the alleged ‘voidity’ of the Limitation Law was not raised in the case of Onu Agha Uduma v. A. G. Ebonyi State [supra], the facts of that case are similar to this and the issue raised in that case on limitation of action pursuant to the Public Officers Protection Law is the same issue raised by learned Counsel for the Defendants in this case except for the alleged voidity of the Limitation Law. A decision of Court is authority for the law based on the facts it decides. See University of Ilorin v. Mr. A. I. Adeniran [supra] at 529 and Central Bank of Nigeria v. Mr. Olasupo Adedeji & 11 Ors. [2004] 13 NWLR [pt.890] 226 at 242-243. I am bound by the decision in Onu Agha Uduma v. A. G. Ebonyi State [supra] and there is no sufficient reason to depart from it. Lastly, sections 3 and 6 of Ebonyi State Reviewed Laws and Related Matters Law, CAP 70, Laws of Ebonyi State which was enacted by the House of Assembly as Law of Ebonyi State of Nigeria No. 008, 2009 validated all the laws compiled by the Law Review Committee. This negates the argument of learned Counsel that the Limitation Law, CAP 102, Laws of Ebonyi State is void because the Law Reform Committee exceeded its mandate and it was not a law passed by the House of Assembly of Ebonyi State. Consequently, I hold that the issue of dismissal of the Claimant is not statute barred.

  1. This leads me to a consideration of whether the order made by this Court on 9th June 2017 in Suit no. NICN/ABK/M1/2017 between Dr. Prince Christian Ifeanachor Umoke v. Ebonyi State Government & Ors., granting the Claimant’s application to withdraw the suit but proceeding to dismiss it pursuant to Order 61 rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 creates an estoppel per rem judicatam against the Claimant. It is trite that for a plea of res judicata to succeed, the following conditions must be satisfied:

[a].    The parties or their privies must be the same in both the previous and present suit.

[b].    The claim or issue in dispute in both actions must be the same.

[c].    The res of the subject matter of the litigation in the two cases must be the same.

[d]     The decision relied upon to support the plea of estoppel must be valid, subsisting and final.

[e].    The Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.

See the case of Taiye Oshoboja v. Alhaji Surakatu Amida & 2 Ors. [2009] 12 SC [pt.11] 107 at 129 and Dr. Taiwo Oloruntoba-Oju & 4 Ors. v. Professor Shuaibu O. Abdul-Raheem & 3 Ors. [2009] 5-6 SC [pt.11] 57 at 95-98

Suit no. NICN/ABK/M1/2017 was an application for certiorari and prohibition filed by the Claimant on 25th January 2017. In that action, the Claimant sought 8 reliefs and relief 4 in this suit was relief 1 in that suit. The Claimant was dismissed before the hearing of the application. Although the Defendants [now 6th, 7th, 9th, 10th and 11th Defendants] filed a counter affidavit on 8th June 2017, when the matter came up on 9th June 2017, the Claimant applied to withdraw the suit which application was granted. My Lord, the Honourable Justice Awwal Ibrahim [of blessed memory] in granting the application, held:

“Order as prayed. The application of the claimant to withdraw this suit is hereby granted. Furthermore, the suit has to be and is hereby, dismissed pursuant to the provisions of Order 61 Rule 7 of the National Industrial Court [Civil Procedure] Rules, 2017.”

The question is in dismissing that suit did the Court decide the rights of the parties? If it did, then the plea of estoppel per rem judicatam will be well grounded but if it did not decide the rights of the parties, the order of dismissal reproduced above will be treated as one of striking out.  See Ranking Udo & 5 Ors. v. Mbiam Obot & 2 Ors. [1989] 1 NWLR [pt. 95] 59 at 71-72, where Oputa, JSC, held:

“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a final judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter parties…. For the plea of estoppel per rem judicatam to apply there must have been a judicial determination of a cause agitated between the real parties, upon which a real interest has been settled…. Finality is basic and crucial in pleas of estoppel per rem judicatam. It is not the mere raising of an issue that is binding on the parties. Rather it is the fact that such issue has been adjudicated upon and decided one way or another.”

The overriding consideration in a plea of res judicata, in my view, is that the Court must have decided the issue one way or another. This decision was followed in Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. [2005] 9 NWLR [pt. 929] 117 at 129. In this case, the Supreme Court put the issue beyond peradventure. It held:

“It is not in all cases where a matter is dismissed that it completely terminates a case. Where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put a finality to the case, the court views such dismissal as a mere striking out.”

This decision applies with equal force to this case. I have looked at the short ruling and I am of the view that although parties joined issues on the application, there was no decision on the issues submitted to the Court for adjudication. There was, so to say, no determination of the rights of the parties and as a result, no finality on the issues raised by the Claimant in Suit no. NICN/ABK/M1/2017. Accordingly, the order of dismissal made in that suit cannot operate as a bar to further action on the issues submitted by the Claimant in that suit and I so hold. See Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. [supra].

  1. The next issue has to do with the suspension of the Claimant. Sad as it is, the issue is now academic. The suspension of the Claimant has been overtaken by events. It is, therefore, no longer a living issue between the parties. I find support for this view in the case ofMonday Ogbonna & 50 Ors. v. The President, Federal Republic of Nigeria & 14 Ors. [1997] 5 NWLR [pt.504] 281 at 287. Per Uwaifo, J.C.A. [as he then was], held:

“If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the court will not entertain it….I think the law is that it is an essential quality of a suit or an appeal fit to be disposed of by a court that there should exist between the parties a matter in actual controversy which the court undertakes to decide as a living issue…. It is my view that there cannot be said to be a live issue in a litigation if what is presented to the court for a decision, when decided, cannot affect the parties thereto in any way.”

  1. I will now consider the main issue for determination in this suit, which is, whether the dismissal of the Claimant is wrongful and consequently null and void. The law is trite that the burden of proof is on the Claimant who alleges wrongful dismissal and he discharges this by setting out the terms and conditions of the contract of service and the manner in which it has been breached. See sections 131[1] and 133[1] of the Evidence Act 2011 and Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31. It is also the law that the Claimant who seeks declaratory reliefs has the burden of establishing his entitlement to the relief. See Isiyaku Musa Jikantoro & 6 Ors. v. Alhaji Haliru Dantoro & 6 Ors. [2004] 5 SC [pt.11] 1 at 15 and Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27. It must be noted, however, that the standard of proof remains the same: proof on a balance of probabilities or preponderance of evidence. The Claimant is only required to show that the law and facts of his case support his claim and cannot rely on the mere admission of the Defendants or absence of defence. I have reviewed the pleadings, depositions of witnesses and the exhibits. The Claimant tendered his employment and promotion letters, exhibits 2-5. Exhibit 5 is his letter of appointment as Permanent Secretary. He tendered the letter of dismissal, exhibit 18. The Claimant also pleaded his conditions of service and tendered the Public Service Rules 2000 as applicable to Ebonyi State, Guidelines for Appointments, Promotions and Discipline in the Civil Service, exhibit 26; Ebonyi State Government Circular with Ref. no. SGE/ETP/0017/105 dated 4th May 1999, exhibit 25; and clearly set out how these regulations were breached. I must state at this point that these documents form part of matters that this Court is required to take judicial notice of pursuant to section 122[1] and [2][a] & [b] of the Evidence Act, 2011. See Tulip Nigeria Limited v. Noleggioe Transport Maritime S.A.S. [2011] 4 NWLR [pt. 1237] 254 at 277.

  1. The Claimant’s evidence in support of his claim for wrongful dismissal can be gleaned from paragraphs 70, 71, 72, 73 and 74 of his further statement on oath dated 30th October 2017. These paragraphs are reproduced here.

“70.    That on 3rd February 2017, the Civil Service Commission served a letter of dismissal dated 26/01/2017 with ref. no: EBS/CSC/AD336/1/2 on me purportedly dismissing me from service. The said dismissal was with retrospective effect from 1st January 2016. I hereby rely on the said letter dated 26/01/2017 but received on 3rd February 2017.”

“71.    I maintain that my dismissal and the disciplinary process leading to my dismissal by the defendants is not in compliance with the statutes and regulations governing their terms of employment namely: Public Service Rules 2000, Constitution of Federal Republic of Nigeria, 1999 as amended, Guidelines for Appointments, Promotions and Discipline in the Civil Service, Ebonyi State Government Circular with Ref. no. SGE/ETP/0017/105 dated 4th May 1999 and other relevant regulations.”

                    “Particulars of non-compliance”

“[i]     The Civil Service Commission failed to issue me a Query Letter or hear from me on allegations of serious misconduct as contained in the recommendation letters of the Head of Service dated 2nd December 2016 and 16th January 2017, which formed the basis for the purported dismissal of the Claimant by the Civil Service Commission.”

“[ii]    The Civil Service Commission also failed to give me access to the documents or reports used against me.”

“[iii]   The Civil Service Commission also failed to set up a 3 man board of inquiry as required under S.04306[v] of the Public Service Rule, 2000”

“[iv]   I was neither afforded the opportunity of oral hearing and cross examination of witnesses nor opportunity to dispute any documents tendered against him as required under S. 04306[iv]-[vii] of the Public Service Rule, 2000.”

“[v]    The Permanent Secretary of the Civil Service Commission failed to instruct the appropriate Senior Staff Committee through the Director of Administration to initiate disciplinary proceedings in accordance with part V[1] of the Guidelines for Appointments, Promotions and Discipline in the Civil Service.”

“[vi]   The Permanent Secretary of the Civil Service Commission failed to comply with Part V [17], [18], [19] of the Guidelines for Appointments, Promotions and Discipline in the Civil Service to wit:”

“[a]    Instructing the Director of Administration to commence disciplinary procedures by giving the Claimant a Notice of statement of facts of allegations against him.”

“[b]    The Permanent Secretary failed to appoint a 3 man special disciplinary committee in the manner specified by the regulation. The Committee set up by the Head of Service is defective as one of the members is not a Permanent Secretary and thus my junior in rank.”

“[c]    I was not afforded the opportunity or oral hearing to defend myself as provided for by the regulation and statutes governing the terms of employment.”

“[d]    The required 3 man Special Disciplinary Committee did not invite me, never investigated the allegation against me and never recommended for my dismissal from service.”

“[e]    The Senior Staff Committee which is the appropriate authority responsible for disciplinary matters involving a person in the cadre of Permanent Secretary was never called upon to deliberate, investigate and make recommendations of discipline on the allegation against me.”

“[f]    That the period of time within which to commence and conclude a disciplinary process against me under the regulation had already elapsed before the purported disciplinary process culminating in the order of dismissal against me.”

“[g]    That the purported inquiry and disciplinary process conducted by the agents of Ebonyi State were made in breach of my right to fair hearing as I was neither informed of the inquiry nor invited to the proceedings of the various committees set by the Defendants.”

“[h]   That the Query Letter issued on me by the Head of Service did not contain details or particulars of allegation against me as required by the rules.”

“[i]     That I was not given access to documents used against me as required by the regulations and statutes governing their terms of employment.”

“[j]    That retrospective dismissal is neither known to law nor anticipated for under the terms and rules governing our terms of employment.”

“72.    That my dismissal on the basis of the recommendations of the Technical Committee or the whims and caprices of the 1st and 8th Defendants is contrary to the provision of section 202 of the 1999 Constitution as amended which prescribes for independence of the Ebonyi State Civil Service Commission in the procedure for discipline of civil servants.”

“73.    I know that the recommendations of the Head of Service based on the Reports of the Ad hoc Committee and the Technical Committee are not valid as the recommendations were given when a suit challenging the validity of the recommendations of the Ad hoc Committee and the Technical Committee were already pending in court in Suit no. NICN/ABK/04/2015 and NICN/ABK/M1/2017.”

  1. One fact that emerges from this piece of evidence is that the Claimant disputes the process leading to his dismissal and has itemised the alleged infractions. He contends that he was not given a fair hearing at any stage of the proceedings leading to his dismissal. In my opinion, the Claimant has discharged the initial evidential burden and the burden now shifts to the Defendants to prove compliance with the applicable regulations. See section 133[2] of the Evidence Act, 2011. The Defendants filed an amended statement of defence on 29th November 2017 but did not file a supporting witness deposition. The evidence of the Defendants’ witnesses contained in their statements on oath dated 12th April 2016 attached to the original statement of defence does not have any depositions on the issue of dismissal of the Claimant. The material portions of DW1’s evidence are paragraphs 22, 23, 24, 25, 32, 33, 35, 38 – 41 of his statement on oath. I will reproduce paragraphs 24, 38 – 41 here.

 

“24.    That the investigation of the financial operations of the 13 Local Government Areas and 64 Development Centre of Ebonyi State was not meant to witch hunt anybody nor was it targeted against the Claimant, the Claimant like many others was implicated in the course of the investigation.”

 

“38.    That the Claimant was physically confronted with the allegation of financial impropriety by Mrs. Lynda Alo the HPM of Ezza North Local Government whom he ordered to sign a cheque of N28m for election purposes and other persons who also accused him of corruption wherein he made feeble denial of the allegations.”

“39.    That the Claimant was given full and unfettered fair hearing as he freely attended the interview and voluntarily and freely left the committee after he had answered the questions posed to him by the committee.”

“40.    That the recommendations contained in the committee’s report are yet to be implemented by the Head of Service or any other person same having not been considered for the purpose of issuing white paper.”

“41.    That it is within the purview of the civil or public service Rules to suspend its erring staff as in the case of the Claimant who was physically confronted by Mrs. Lynda Alo with the allegation that he ordered and compelled her against her wish to withdraw the sum of N28m from the bank account of Ezza North Local Government Council for election security.”

Under cross-examination DW1 testified that “The Claimant was invited as a witness” and “he was not shown any document when he appeared before the Ad hoc Committee.” DW2 on his part testified as follows:

“4.     That I know as a fact that the suspension of the Claimant by the state government is not an interdiction but was done in furtherance and in accordance with the relevant extant laws.”

“5.     That the suspension of the Claimant by the State Government was based and predicated on the findings of the Ebonyi State House of Assembly which implicated him of corrupt practices and abuse of office, thereby making out a prima facie case against him to require further investigation by the Civil Service Commission and the Office of the Head of Service.”

“6.     That I know as a fact that the Claimant was placed on suspension by the state Government in order to allow or give way for further investigation after a prima facie case of fraud and abuse of office was made out against the Claimant by the Hon. Odefa Obasi Odefa-led Ebonyi State House of Assembly Investigative Committee.”

Under cross-examination DW2 said: “The document listed in exhibit 18 [dismissal letter], to my knowledge, I am not aware it was served on the Claimant. I don’t know because I was not a member of the Panel and I also don’t know if he was invited or not. A senior civil servant must first face a disciplinary panel before he can be dismissed.” The totality of the evidence of the Defendants’ witnesses point irresistibly to the following:

  1. The basis of the suspension and eventual dismissal of the Claimant is the report of the 1st Defendant’s Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres in Ebonyi State.

  1. The Committee made allegations of serious misconduct against the Claimant involving fraud and abuse of office.

  1. The Claimant appeared before the Committee not as an accused person but as a witness.

  1. The report of the Ad hoc Committee was not supposed to be implemented until after an independent investigation by the 7th Defendant.

  1. There is nothing in the evidence of the Defendants’ witnesses in answer to the Claimant’s evidence reproduced above. What appears to be a traverse is in paragraphs 23, 25, 31, 38, 41, 44, 45, 46 and 47 of their amended statement of defence. In paragraph 41 of the amended statement of defence, the Defendants justified the setting up of the Technical Committee by the Governor of Ebonyi State and averred in paragraph 38 that the sittings of the Technical Committee were publicized through radio and television announcements. There was no averment of any invitation extended to the Claimant to attend the sitting of the Committee. The Defendants admitted in paragraph 44 that the 7th Defendant met on 20th January 2017, reviewed the various reports and took the decision to dismiss and actually dismissed the Claimant with effect from 1st January 2016 with the approval of the Governor of Ebonyi State on the ground of serious acts of gross misconduct. Paragraph 45 is very instructive and it is reproduced here:

“45.    The defendants deny the entirety of paragraphs 71, 72, 73, 74 and 75 of the Claimant’s Further Amended Statement of Facts, and state that the disciplinary processes leading to the Claimant’s dismissal were in accord with the civil service rules, the rules of natural justice and the extant Constitution of Nigeria. All that were needed to be done were duly done. Every step taken was with a view to ensuring that the Claimant was fairly treated and accorded fair hearing.”

It is trite law that he who asserts must prove. See section 136[1] of the Evidence Act, 2011. Strangely, there is no single averment of the compliance. In addition, there was no supporting witness deposition. It is settled law that averments in pleadings are not evidence. Accordingly, where, as in this case, the Defendants filed an amended statement of defence without an accompanying witness deposition, they are deemed to have abandoned the amended statement of defence. In Senator Usman Jibrin Wowo & Anor. v. Senator Adamu Muhammad Sidi-Ali & Ors. [2009] LPELR-5106[CA] at page 63, Aboki, J.C.A., held:

 

“Pleadings in themselves do not constitute evidence. Mere averments without evidence in proof of facts pleaded goes [sic] to no issue and such averment is deemed abandoned and would be struck out by the Court unless it is admitted by the adverse party.”

As I held earlier, the Defendants’ witnesses’ statements on oath dated 12th April 2016 are irrelevant because they no longer define the issues before the Court. Inexorably, the evidence of the Claimant is unchallenged and, in my view, direct and probable.

  1. From the pleadings and evidence before the Court the trajectory leading to the dismissal of the Claimant was:

  1. Constitution of the House of Assembly Ad hoc Committee to investigate the financial operations of the 13 Local Government Areas and 64 Development Centres in Ebonyi State.
  2. Advice from the Ministry of Local Government, Chieftaincy and Rural Development to the Head of Service on the report of the Ad Hoc Committee.
  3. The Claimant was suspended for three months without pay
  4. The Claimant was recalled from suspension
  5. The Claimant was served with a query
  6. The Claimant answered the query
  7. He was thereafter placed on indefinite suspension
  8. While on suspension the Governor set up a Technical Committee to review the House of Assembly Ad hoc Committee report
  9. The Head of Service set up a 3-man Disciplinary Committee to review the report of the Technical Committee
  10. The Claimant was consequently dismissal

Throughout the sittings of the Technical Committee and the three man Disciplinary Committee the Claimant was not invited or given an opportunity to present his defence. See paragraphs 7 and 8 of exhibit 22.

  1. From the totality of the evidence before this Court, I find the following facts established:

  1. The Claimant was a Permanent Secretary deployed to the Ministry of Local Government and Chieftaincy Affairs until June 2015 when he was redeployed to the Civil Service Commission and thereafter to Inter-Party Dialogue, exhibits 5, 7 and 8.

  1. The Claimant’s employment is regulated by statute: the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Public Service Rules, 2000 as applicable in Ebonyi State and Guidelines for Appointments, Promotion and Discipline, exhibit 26. The Defendants argued that the Public Service Rules 2014 are the applicable Rules. However, the relevant portions of the Rules remain unchanged.

  1. The House of Assembly Ad hoc Committee was set up in June 2015 to investigate the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 to April 2015 and recommended the dismissal and prosecution of the Claimant. The report was submitted to the Governor, exhibit DW1.

  1. The Claimant was suspended for three months without pay with effect from 2nd October 2015 on the advice of the Ministry of Local Government, Chieftaincy Matters and Rural Development based on the report of the House of Assembly Ad hoc Committee that investigated the financial operations of the 13 Local Government Areas and 64 Development Centres in Ebonyi State and recalled on 7th December 2015, exhibits 9 and 13; in breach of section 202 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Rule 04102 of the Public Service Rules, 2000 applicable in Ebonyi State.

  1. The Claimant demanded for copies of the report cited in his letter of suspension but it was not given to him, exhibits 10, 11 and 12; in breach of Rule 04306[i] of the Public Service Rules 2000.

  1. The Claimant was served with two queries on 11th December 2015 after his recall and he promptly responded, exhibits 14, 15 and 16. The queries did not comply with Rule 04306[i] of the Public Service Rules 2000, the particulars of the misconduct were not set out. Exhibit 14 is set out hereunder.

  1. The Claimant was thereafter placed on indefinite suspension without salary, exhibit 17, in breach of Rule 04405 of the Public Service Rules, 2000.

  1. While on suspension, the Governor of Ebonyi State on 22nd January 2016 set up a Technical Committee to review the Report of Ebonyi State House of Assembly Ad hoc Committee which investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 to April 2015. The Committee submitted its report, exhibit 32.

  1. The Head of Service on 21st September 2016 set up a 3-man Disciplinary Committee to review the findings of the Technical Committee. The Committee submitted its report, exhibit 22.

  1. These two Committees sat without the Claimant. There is no evidence before me that he was invited by the Committees to defend himself or make representations in his defence, in breach of the rules of fair hearing.

  1. The Claimant was dismissed by letter dated 26/1/17 with retrospective effect from 1st January 2016 on the advice of the Head of Service, exhibit 18, in breach of Rule 04407 of the Public Service Rules, 2000. Exhibit 18 is set out below:

  1. By the combined force of sections 197[1] and 202 of and paragraph 2[1][b], Part 11 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended, the power of discipline of the Claimant inheres in the State Civil Service Commission, the 7th Defendant, and there is no evidence that the powers were delegated to the 8th Defendant. It is in evidence that the disciplinary procedure specified in Rules 04302 to 04306 of the Public Service Rules, 2000 was not complied with. It is trite law that where there is an allegation of misconduct which may result in some form of punishment, deprivation of some rights or loss of means of livelihood, the affected officer should be given ample opportunity to exculpate himself. SeeStephen O. Adedeji v. Police Service Commission [1968] NMLR 102 at 105, C. O. B. Eche & Anor. v. State Education Commission & Ors. [1983] FNLR vol.1 386 at 401, Professor Dupe Olatunbosun v. Nigeria Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 52 and United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 39, 41-42. In Professor Dupe Olatunbosun v. Nigeria Institute of Social and Economic Research Council [supra] at page 41, Oputa, JSC held:

“The only way to terminate such a contract of service with statutory flavour is to comply religiously with the procedure laid down in the statute.”

From all the evidence before me, I have come to the conclusion that the Claimant was not given a fair hearing in all the proceedings leading to his dismissal. The dismissal was made to take effect on 1st January 2016, when investigation into the alleged misconduct was still ongoing in breach of Rule 04407 of the Public Service Rules 2000 and settled judicial authorities. See Joseph Hemen Abenga v. Benue State Judicial Service Commission & Anor. [2006] 14 NWLR [pt.1000] 610 at 620-621. Undoubtedly, the 1st Defendant performs oversight functions on statutory bodies and authorities which it has power to make laws. However, in the exercise of its power, the 1st Defendant exceeded its constitutional mandate in that it indicted the Claimant and recommended him for dismissal and prosecution which recommendation carries with it an infamy without affording him an opportunity to defend himself. A person invited as a witness cannot suddenly become an accused. The report of the Ad hoc Committee as it affects the Claimant is therefore null and void and of no effect whatsoever.

  1. On the whole, I find merit in the Claimant’s case and enter judgment in favour of the Claimant. Accordingly, I hold and order as follows:

  1. The recommendations of the Ebonyi State House of Assembly Ad hoc Committee which investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 to April 2015 as it affects the Claimant are hereby nullified and set aside as it was arrived at in breach of the rules of natural justice and the Claimant’s right to fair hearing enshrined in section 36[1] of the Constitution of the Federal Republic of Nigeria, 1999.

  1. The report and recommendations of the Technical Committee that reviewed the report of the Ebonyi State House of Assembly Ad hoc Committee which investigated the financial operations of the 13 Local Government Areas and 64 Development Centres of Ebonyi State for the period November 2014 to April 2015 as it affects the Claimant are hereby nullified and set aside as it was arrived at in breach of the rules of natural justice and the Claimant’s right to fair hearing enshrined in section 36[1] of the Constitution of the Federal Republic of Nigeria, 1999.

  1. The letter of dismissal with reference no. EBS/CSC/AD.336/1/2 dated 26/01/17 with effect from 1st January 2016 is hereby declared null and void and of no effect whatsoever in that the decision to dismiss the Claimant and the dismissal of the Claimant was arrived at in a manner that violated the Public Service Rules, 2000 and made effective retrospectively.

  1. The Claimant is hereby ordered to be reinstated to his position as Permanent Secretary and paid all his salaries and entitlements from 30th September 2015 to 6th April 2016.

  1. The Claimant having retired by operation of law on 6th April 2016, it is hereby ordered that the 7th Defendant, the Civil Service Commission, Ebonyi State, shall compute and pay to the Claimant all his gratuity and retirement/severance benefits and pensions from 6th April 2016 and continuously as applicable to Permanent Secretaries in the Civil Service of Ebonyi State.

  1. Reliefs a, e and k above fail and are hereby dismissed. The Claimant attended the House of Assembly Ad hoc Committee proceedings voluntarily and cannot now complain that the invitation was irregular. Also, injunction cannot be granted to restrain a completed act or an event that took place in the past. See NBM Bank Limited v. Oasis Group Limited [2004] LPELR-5938 [CA] at 11 and Etubom Ekpo Okon Abasi Otu & Another v. Etubom [Dr.] Anthony Asuquo Ani & 5 Ors. [2013] LPELR-21405 [CA] at 81. In addition, an award of general damages in these circumstances will amount to double compensation, which a Court of equity should not countenance.
  2. The Claimant, having served till his statutory retirement date of 6th April 2016, is entitled to his leave allowance as claimed. Accordingly, I order that the 7th Defendant, the Civil Service Commission, Ebonyi State, shall compute and pay to the Claimant his 2016 leave allowance in the sum of N560, 400.

  1. Before I conclude this judgment, I would like to observe that there was no need bringing the 2nd, 3rd, 4th, 5th, 10th and 11th Defendants to Court. They are, in my considered opinion, not necessary parties and should not have been joined in the first place. Since the application was made in the Defendants’ final written address, it is not well founded. Consequently, I cannot make an order striking out their names from the records.

  1. Cost follows events. The Claimant has been put through avoidable and painful suffering. No amount of cost can compensate him. In the circumstance, cost of N300, 000 [three hundred thousand naira] is awarded in favour of the Claimant against the 7th Defendant, Civil Service Commission, Ebonyi State, payable within 7 days from the date of this judgment.

  1. This judgment shall be implemented within 30 days from today and failing which the monetary sum accruing to the Claimant from this judgment shall bear interest at the rate of 10% per annum from 20th August 2018 until it is fully liquidated.

  1. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

20/7/18

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