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National Industrial Court

EKPANG K. THOMAS & 4 ors -VS- FEDERAL ROAD SAFETY

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IN THE NATIONAL INDSTRIAL COURT OF NIGERIA

       IN THE YENAGOA JUDICIAL DISVISION

HOLDEN AT YENAGOA.

 

BEFORE HIS LORDSHIP, HON. JUSTICE BASHAR A. AIKALI

 

DATE: NOVEMBER 19, 2019.                                       SUIT NO: NICN/ YEN/66/2015

 

BETWEEN: 

  1. EKPANG K. THOMAS
  2. ADAMS A. ABU                                                                
  3. ODORI ABASI AKPAN                                          CLAIMANTS
  4. ALLHAIL E. AKINS
  5. RANSON ONYECHE

 

 

AND

 

 

FEDERAL ROAD SAFETY COMMISSION   ……………….  DEFENDANT

    REPRESENTATION:

Mr. P. P. P. Tamuno Esq for the Claimants.

  1. O. Omojiade Esq for the Defendant.

 

JUDGEMENT.

INTRODUCTION AND CLAIMS

This action was commenced by a way of a complaint dated and filed by the claimants on the 4th day of August 2015. Accompanying the complaint were the Statement of Facts establishing the cause of action, Witness Depositions on Oaths, List of Witness and List of Documents to be Relied Upon at the Trial. The claims of the claimants are set out in paragraph 32 of their statement of facts establishing the cause of action which are as follows:

  1. A Declaration that the termination of their employment was wrongful, illegal unconstitutional, null and void and of no effect.
  2. A Declaration that the procedure adopted by the disciplinary panel constituted by the Defendant is in breach of the FRSC Regulations on Maintenance of Discipline 2013 and a breach of the 1st to 5th claimants right to fair hearing as enshrined by section 33 of the 1999, constitution of the federal Republic of Nigeria.
  3. A Declaration that the employment of the 1st to 5th Claimants are still subsisting
  4. An order of this Honourable Court reinstating the 1st to 5th Claimants back to work with all their rights and privileges attached thereof, including payment of all outstanding Salaries arrears, benefits, allowances, promotions and other entitlement from the date of the purported termination to the date of the order.
  5. An order to pay to the 1st to 5th  Claimants jointly and severally the sum of N50,000,00 [ Fifty Million Naira]  only as general damages for wrongful termination of employment, psychological and emotional trauma, financial  and economic indignity suffered by the 1st to 5th  Claimants.
  6. The sum of Ninety Three Million, Six Hundred Thousand, Nine Hundred and Fifty Four Naira, Six Kobo (N93,600,954.06K) being special damages.

The Defendants entered a memorandum of Appearance dated the 14th day of September 2015. And filed same day however, the defendant did not file her statement of defense then.

By motions on Notice dated and file on the 12th day of January 2016 and dated the 10th day of March 2016 and filed on 11th day of March 2016 the Claimants sought for and was granted leave by this Honourable Court to amend and further amend their statements of facts and witness depositions on oaths.

By a motion on notice dated the 7th day of June 2016 and filed on the day of June 2016, the defendant sought for and was granted leave by this court an extension of time to file and serve her statement of defense, further and better affidavits, consequent upon which the defendant filed their Statement of Defence, Witness Deposition on Oaths and other accompanying processes.

Also, by a Motion on Notice dated the 8th day of March, 2018 and filed on the 21st day of March 2018, the Claimants sought for and obtain leave of this court to file their reply to the Statement of Defence, the Defendants Affidavit and other accompanying processes. The said reply to statement of Defence was filed on the 22nd day of May 2018.

Upon Commencement of the trial the Claimants called five witness in proof of their Claims who testifies as CW1 [Ekpan K Thomas], CW2 [Abu Adams Abubakar], CW3 [Odori Abasi Akpan] as, CW4 [Allhail Emmanuel Akins] CW5 [ Ransom Onyeche].

In their testimonies, the Claimants tender 6 documents through the CW1 which are marked as exhibits CW1 EK OO1 to CW1 EK006.They also tendered other documents through the CW2 to CW5 which are marked as exhibits CW2 EK 007, CW3 EK008, CW4 EK009 and CW5 EK0010 respectively

At the opening of their defence, the defendant called one witness who testify as DWI (Mitema AmaSeimogha) and there after closed their case.

Parties where then ordered to file their written addresses which were file and adopted on the 1st day of July, 2019.

CLAIMANT’S CASE IN BRIEF

The brief fact of the case as contained in Claimant’s Amended Statements of facts (Paragraph 1-32) is that the 1st to 5th claimants are all employees of the Defendant until their employment was wrongfully terminated by the defendant. That they were scheduled on the 4th September, 2014 for patrol along Ahoada – Port-Harcourt – Mbiama Road.  They were however, directed orally by their unit commander, Acc. Theophilus N. Egwim, who is the Ahoada unit commander, to carry out a free safety check by the command on the directive from the Rivers state sector command. Then the acting unit head of operation amended the route of patrol (new free safety check) to Ahoada – Omoku –Mbiama road by Obrikom which is also within the jurisdiction of the defendant. The claimants avers that at about 9:45 am, a surveillance team of two persons led by a sector provost officer from River state command called their attention and asked them to report back to their unit command which they comply with, and the surveillance team confirm from the unit command that they were lawfully posted for that assignment. The surveillance team therefore gave them a statement form to write what transpired on the road and still confirm from the unit commander and thereafter order the claimants back to the same Ahoada-Obrikom road to continue with their patrol. They further states that the report of the successful free safety check patrol conducted by the 1st to 5th claimants was forwarded to the corps marshal and chief executive of the defendant via the Rivers state sector command and the zonal commanding officer of zone 6 unit commander, Ahoada unit command.

The claimants states that they were recalled to the headquarters of the defendants Abuja office on the 12th day of December, 2015 without any reason given where they spent about two weeks and were asked to write statement at the intelligence office of the defendant concerning the event that happen on the 4th day of September, 2014 and were subsequently asked to report back to their units. However, the claimants were not issued with any query by their unit commander, nor the sector commander of Rivers state and the headquarters of the defendant on breach of any section of Regulations Maintenance of Discipline 2013, or any other operational regulations.

The claimants claimed that they were again summoned to the defendant headquarters in Abuja on the 18th day of November 2014 and a disciplinary panel was constituted to try them for the event of the 4th day of September 2014. However, they states that the disciplinary panel commenced proceeding without issuing them the statutory required query or the charge sheet containing the alleged offences or the provision of the regulation they are alleged to have breached, nor were they informed in writing of any misconduct that they were involved in. Also they states that they were not given the mandatory requirement of 72 hours to prepare their defence.

The claimants avers that during the trial of the disciplinary panel, the DWI in this trial who testified as PWI testified that he was informed by the unit commander of the defendants Ahoada unit command that the 1st to 5th claimants were conducting free safety check patrol at the same Ahoada-Obrikom road on that faithful day. They avers that the finding and recommendations of the disciplinary panel was against the weight of evidence presented before it. That they had followed the provision of the regulation and appeal the decision of the Disciplinary panel but did not receive any reply from the appropriate authority.

The claimants further avers that in spite of the letter of appeal, the defendant went on to terminate their appointment and they directed their lawyers to serve the required statutory one month notice to commence legal proceedings against the defendant.

By their further disposition in reply to Defendant’s statement of defence, the claimants contend that it was the defendant via its unit commander that authorized the change of the patrol route and that the changing of route and personnel has being a customary practice in their unit. They further contend that it is not the duty of the 1st to 5th Claimants to convey the change of route or personnel to the Defendant Headquarters, but only to their unit commander, for they only take orders from the unit commander. Also, that their unit Commander testified under oath at the Disciplinary panel proceedings that he did not issue the 1st to the 5th Claimants any query due to the fact that they will not be able to answer it, since they were bound for Abuja.

Under Cross examination, CW1 Stated that he was the acting head of operations at Ahoada unit Command and he was the leader of the patrol team for that day. That he was the one that amended the patrol order on the authority of the unit Commander. And  That, he was the one that amended the route from Mbiama-Port Harcourt Expressway to Ahoada-Omoku Expressway on the authority of the unit Commander. He stated that the punishment for Route Diversions is termination of appointment. He however contends that he did not divert the route because they went on a free safety check based on the instruction of the unit Commander. That the unit Commander even inform the Disciplinary panel that he directed the Cw1 to conduct a free safety check and in the para military setting you obey the last order whether legal or not. They conclude that the Disciplinary panel found them guilty that is why they are in court.

THE CASE OF THE DEFENDANTS

The defendant commenced her defence by calling one Mr. Mitema Amaseimogha [Dw1}. The DW1 averred that he is the sector provost officer of the Defendant’s Rivers state Command. That he was the leader of the two men surveillance team of the Defendant that reported the case of patrol Misconduct against the claimants on the 4th of September 2014. That the other member of the team was Principal Marshal Inspector Baba H. Salifu. He contended that on the 4th of September 2014 the surveillance team embarked on a routine exercise within the Rivers sector Command and its Component units which include Ahaoda unit Command. That when they proceeded on surveillance exercise, they always went with patrol register and routes of all the patrol team for that week which is called the part one order as submitted by the Defendant’s unit commander of the Ahoada unit command. He further stated, that they proceed with the authentic and schedule supposed route of the patrol activity for Ahoada unit command but did not find the Claimants and their patrol team at the schedule route.

The claimants, were scheduled for Port- Harcourt- Ahoada- Mbiama route, but were not found on that route. However the surveillance team search for the Claimants team and found them on a totally different route over 30km away from their scheduled route.

That the punishment for diversion of route or change of route is termination of appointment. He further averred that on sighting the Claimants at Obrikom- Omoku route, the surveillance team saw the Claimants’ team collecting monies from motorist and a marshals ran with the proceeds to the bush. However, during the proceeding of the Disciplinary panel which was composed by the Defendant the issue of collection of monies was discountenanced.

Dw1 further stated that Cw1 who was the team leader of the Claimants sought for and obtain permission from the unit Commander to amend the part one order to include the Cw1 as the leader of the team. However, Cw1 mutilated the part one order to change the route without authorization from the unit commander and clearance from the sector command as required by standard operation practice and the defendant operation manual. He stated that, the unit commander of the Defendant Ahoada unit Command specifically inform the Disciplinary panel that he did not authorize the change of route from East- west Road to Obrikom- Omoku road and he is not aware of the change of route.

Therefore the appointment of the 1st to 5th Claimants was rightfully terminated after following due process.

Under cross examination Dw1 stated that the part one order which is the roster for the day’s activities can be amended by using a biro on the authorization of the unit or sector Commander. He however stated the he did not remember that the Claimants told the Disciplinary panel that it was their unit commander that authorize the change of the route. And that he did not see the altered part one order with his eyes. He attested to the fact that the claimants report directly to the Ahoada unit Command. That he saw from the roaster that the Claimants are scheduled for Ahoada- Mbiama road but they went to Omoku road. But it was the 1st Claimant that inform him that he sought permission from the unit commander to include the 1st Claimant’s name as the team leader to replace the team leader who was indisposed. He however averred that he cannot remember if he confirm the alteration of the part one order at Ahoada unit command. But, that he asked the unit Commander if he authorized the 1st Claimant to Change the route and the unit Commander denied it.

He contend that he has the part one order which was sent to part Harcourt sector command and the Claimants are not supposed to be in an unknown route. He stated that they don’t go on surveillance on free safety check days but only on patrol days, he therefore posited that the Claimants were not on free safety check on that day. Also, he conclude that reprints are not sent by the unit commander to the sector command for onward transmission to Abuja on patrol days; but only on free safety checks days.

In all the defendant urge the court to dismiss the Claimant’s claim with substantial cost.

THE SUBMISSION OF THE DEFENDANTS

In the final written address, the learned counsel on behalf of the defendant formulated one issue for determination to wit.

  1. Whether the employments of the Claimants were lawfully terminated having being given fair hearing by a properly constituted FRSC disciplinary panel and whether from the circumstances of this case the Claimants are entitled to the reliefs sought in this suit.

 In arguing this issue, the learned counsel to the Defendant submits that it is worthy of note that the issue of route diversion is gross misconduct and it is punishable under Regulation 22 of the FRSC Regulations on maintenance of Discipline 2013. That the rightfulness or otherwise of the proceeding leading to the termination of employment as Captured in the statement of Hon. Justice O.A Shogbola in the unreported case of   JOHN ONALO ADAJI VRS FEDERAL MINISTRY OF TRANSPORT NICN/ABJ/117/2011 where His worship held that:

            “it is trite that an employer has the right to terminate the appointment of his           employee for good or bad reason or for no reason at all. The important and the      basic issue is whether the defendant adhere to the terms and conditions in bringing   to an end the contract of employment. The motive for doing this is relevant. It is   trite that an employer has the right to discipline any erring staff in its employment including the claimant.”

He argue that gross misconduct is define as a conduct of a grave and weighty Character as to undermine the confidence which exist between the employee and his employer in work against the deep interest of the employer. Where an employee is found guilty of gross misconduct he could be lawfully dismissed summarily without notice and without wages. He refer the court to the case of UNB LTD VS OGBOH [1995]2 NWLR [Pt. 380] 647 (SC). He further contends that the employer has the right to terminate an employee’s employment under the legal principles of the court that it will not force a willing employee on an unwilling employer. But however argue that where gross misconduct bordering on criminality is alleged for which summary dismissal is the punishment, an employer’s right to terminate the employee need to take certain steps to justify the dismissal legally, as the dismissal carries a stigma which may attach to the employee for a long time. The learned counsel to the Defendant contends therefore, that where an employer remove an employee for misconduct or gross misconduct, the removal cannot be justified in the absence of an adequate opportunity being given to the employee to defend themselves. That in this particular case, the Claimants were given fair hearing in abundance within the FRSC Regulations on Maintenance of Discipline, 2013. He refer the court to the case of University of Calabar Vrs Essien (1996) 10 NWLR (Pt. 447) 225 at 262 where the Supreme Court held that:

                      “Where an employer dismiss or terminates the appointment of an employee     on the  ground of misconduct, all that the employer needs to justify his action      is to show that the allegation was disclosed to the employee, that he was given    fair hearing, that is to say that the rules of natural justice were not       breached.’’

He also refers the court to the case of OLATUBOSUN VRS NIGERIAN INSTITUTE FOR SOCIAL AND ECONOMIC RESEARCH [1988] 3NWLR [PT. 80] 25 AT 52. And he argued that court have placed emphasis on whether that accused employee was given an opportunity to defend him or herself in the face of the allegation and whether there was like hood of bias or prejudice from any member of the panel constituted to decide the employee’s fate. He relied on the case of SHELL PETROLEUM VRS OLANREWAJU [2008] 18 NWLR [Pt.1118] 1.

The learned counsel further argued that the Court have even held that it is unnecessary to invite the employee to the panel hearing, rather it is enough to allow the dismissed employee provide a written response to allegations. He relied the case of OLATUBOSUN VRS NISER [1988] 3 NWLR [Pt80] 25 at 52 PARA E – F. He therefore urge the court to dismiss the claim of the claimants against the defendant and to dismiss the action for being incompetent.

SUBMISSION OF CLAIMANTS

The learned counsel on behalf of 1st to 5th claimants formulated five (5) issues for determination to wit.

  1. Whether the contract of employment of the claimants is one clothed with statutory flavour?
  2. If issue one is answered in the positive, did the defendant lawfully terminated the appointment of the claimants?
  3. If issue two is answered in the negative, whether the claimants are not entitled to reinstatement and their entitlements and benefits thereto?
  4. Whether the defendant have not abandon their pleadings.
  5. Whether the claimants are entitled to the reliefs sought given the circumstances of the case?

In arguing issue one, learned counsel to the claimants submits that the employment contracts of the claimants is clothed with statutory flavour. This is because, the defendant is no doubt a statutory body established by virtue of the provision of the Federal Road Safety Commission (Establishment) Act 2007. He also contend that by virtue of section 5 of the said Act, the FRSC Regulations on maintenance of discipline, 2013 was established as a subsidiary legislation to regulate the conduct of staff of the defendant. He further argued that there is no dispute from the evidence that the claimants were staff of the defendant. He relied on the case of K.S.J.S.C. Vrs Tolani (2019) 7 NWLR (Pt. 1671) 203 – 406 at Pg 382 (at PP. 400 – 401) paragraphs H.B.E.F., 402 paragraph G. Where the Supreme Court held that:

                                    “An employment is said to have statutory flavour when the            appointments and             determination or discipline is governed by statutory            provisions.’’

He also contend that from the court decision in K.S.J.S.C. Vrs Tolani (Supra) at PP 399 – 400 paragraph E – B, there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour. Firstly, the employer must be a statutory body set up by the constitution or statute and the statute or regulations made pursuant to the constitution or principal statute or law must make provision regulating the employment of staffs of the category of the employee concerned especially in matter of discipline.

He therefore submits that the defendant in this case is a creation of statute i.e FRSC (Establishment) ACT, 2007 and has a law giving it powers to appoint, dismiss and exercise disciplinary control over its staff. He therefore urge the court to resolve the first issue in favour of the claimants by holding that their contract of employment is that which is clothed with statutory flavour.

The claimants in their issues number two argued that, where the employment is governed by statute and its procedure for employment and discipline are clearly spelt out in the relevant statute, the employer must comply strictly with its provision in dismissing its employee or terminating their employment. The learned counsel for the claimants referred the court to the provision of part IV of the FRSC Regulations on Maintenance of Discipline, 2013 particularly regulations 51 (5) which regulate disciplinary proceedings and contend that the claimants were never issued any query. He also referred the court to page 133 of Exhibit CWI EK 002 which is the proceeding of the disciplinary panel, where the unit Commander admits that he did not issue the claimants any query because he was busy and information has already come that the claimants should be sent to Abuja. He also argue that there is no where the defendant through the unit commander issued any charge sheet or query to the claimants before the claimants were asked to report to Abuja for the Disciplinary trial. He therefore submit that it is the disciplinary trial through which the claimants were dismissed but the procedure adopted by the defendant in dismissing the claimants for patrol misconducted is null and void for it was not in accordance with the provisions of regulation 51 (5) of the FRSC Regulation of Maintenance of Discipline 2013.

He therefore submits that it is trite law that a contract that is clothed with statutory flavour cannot be terminated or employee dismissed without following strictly the provision that stipulates the mode of such dismissal. He refer the court to the cases of KSJSC Vrs Tolani (Supra); ONI Vrs Gov. Ekiti State (2019) 5 NWLR (Pt. 1664) 1-192 pg. 1 at Pg 20 paras G-H; Comptroller General of Customs Vrs Gusau (2017) 18 NWLR (Pt. 1598) 353. He therefore urge the court to resolve the 2nd issue in favour of the claimants and hold that the claimant’s termination is null and void.

On the issue number 3, counsel to the claimants submits that the claimants are entitled to re-instatement by the defendants. That the law is settled that where an employee’s service is protected by statute and was wrongfully terminated, he would be entitled to re-instatement. He contend that the claimants have pleaded and led evidence to show that their contract of service was wrongly terminated by the defendant and as such this court should order the defendant to re-instate them. He relied on the cases of CBN Vrs Igwillo (2007) 14 NWLR (PT 1054) 393; Shitta-Bey Vrs the Federal Public Service Commission (1981) 2 NCLR 372; KSJSC Vrs Tolani (Supra); FMC Ido-Ikiti vs Alabi (2012) 2 NWLR (1285) Pg 411-619 particularly at PP. 460 Paragragh B-D, 416 par. D – E. 

He therefore urge the court to order the immediate re-instatement of the claimants with all their outstanding salaries in arrears, benefits and allowance, promotions and other entitlements from the date of the wrongful termination.

The learned Counsel to the claimants submit on issues number four that, it is trite law that where pleadings are not supported with evidence it is deemed abandoned. That a pleadings of averments in proof of which evidence is not offered virtually serve no useful purpose. He relied on the case of Emmanuel Vrs Umana (2016) All FWLR (PT 856) 204 – 418 and Pg. 261 Paras B – F where the court held to wit:

                                    “Averment in pleadings which are unsupported by evidence are unavailing to   the pleader as they go to no issue, and so must be discountenanced.”

He contends that although the defendant in her statement of defence feebly denied some of the claimants’ averments in their statement of claim but did not lead any credible evidence to support same.

The claimants through their counsel further submits that pleadings cannot take the place of evidence. He relied on the case of Emmanuel Vrs Umana (supra) where the Supreme Court held that:

‘’ An                                       “An averment in a pleading is not evidence and cannot be substituted for           evidence, such an averment does not therefore amount to proof unless       admitted.’’   

He therefore contend that since the defendant fail to call the unit commander, who denied that he authorized the change of route, to adopt his statements on oath and since the claimants denied all the pleadings of the defendants in their reply to same, the Court should hold  that they have abandoned their pleadings. Also, DW1 under cross examination admitted that his witness deposition was not signed by him before a Commissioner for Oaths. He refers the court to section 10 of the Oaths Act LFN 2004 and submit that the DW1 has failed to show that the statement on oath was made before a person authorizes to administer oath, hence the evidence of DW1 is not a valid statement on oath and should be expunged. He therefore urge the court to hold that the Defendant did not advance any evidence in support of that pleading and therefore it is abandoned.

On issue number 5, the counsel to the claimants submitted that the claimant’s contract of service being one clothed with statutory flavour as enumerated above and was wrongly terminated and the claimants have stated in the further amended deposition on Oath, that they have suffered financial hardship and has become indigent due to the acts of the defendant. Also, the 1st claimant stated how he was due for promotion before his contract was unlawfully terminated, he therefore concludes that the law is that the burden of proof lies on he who assert unless those assertions are not disputed. And the only way through which that burden is discharged is by given a credible evidence that cannot be controverted. He therefore urged the court to hold that the claimants have proved their case and are entitled to the reliefs sought. Hence the court should find for the claimants and grant all the reliefs sought.

COURT’S DECISION

I have read through all the processes filed and exhibits tendered by the learned counsels for and on behalf of the respective parties and heard their submissions in support of their cases and also listened to and observed the demeanors of the witnesses who testified before this court; I have carefully formulated   the following issues for determination:

  1. Whether the employment of the claimants was lawfully terminated by the defendant.
  2.   Whether the claimants has properly dispensed with the burden placed on them by law to entitle them to the reliefs sought by them.

ISSUE ONE

Whether the employments of the claimants were lawfully terminated by the defendant.

The defendant have argued that the issues of route diversion is a gross misconduct and it is punishable under regulation 22 of the FRSC Regulation on Maintenance of Discipline 2013, and that the rightfulness or otherwise of the proceedings leading to the termination of the employment is whether the defendant has adhere to the terms and conditions of employment in bringing to an end the contract of employment. He further argued that where an employee is guilty of gross misconduct, such employee could be lawfully dismissed summarily without notice or wages. And that the claimants were given fair hearing and their employment was properly terminated. This argument was contradicted by the claimants who contend that the employment of the claimants is governed by statute and its procedure for employment and discipline are clearly spelt out in the relevant statute, therefore, the Defendant ought to comply strictly with the provision of such statute in dismissing or terminating the appointment or employments of the claimants.

It is clear from the evidence and submissions of parties that there is no dispute as to the fact that the employments of the claimants are regulated by a statute which stipulate the terms and conditions for employment or appointments, discipline and termination or dismissal as the case may be. That is the Federal Road Safety Commission Regulation, on Maintenance of Discipline, 2013.

From the authorities, where the provision of a statute governs the conditions of employment of an employee, the court regards the employee as having secured a special legal status other than the ordinary master and servant relationship with his employer. In that case the employer is bound to comply with these conditions when it comes to termination of the appointment of the employee otherwise the act of determinations would be declared wrongful. See Bankole Vrs NBC (1968) 2 All NLR 372; UNION Bank Plc Vrs Soares (2012) 11 NWLR P. 550, Imoloame Vrs WAEC (1992) 9 NWLR (Pt. 265) 303.

 In the event of termination of such contract, strict adherence must be made to the statute creating such employment, for statutory provisions cannot be waved. See Longe Vrs First Bank of Nigeria Plc (2010) 6 NWLR (pt1189) Page 1 at page 57. It is not in doubt that the punishment for breach of Regulations 22 (D) of the FRSC, Regulations on Maintenance of Discipline 2013 is termination of such employment. However, the same statute make provisions on how such infraction shall be dealt with or the procedure to terminate such employment. This is to ensure that justice is done in such case so that the rule of natural justice will not be breached.

The Defendant has argued correctly that the rightfulness or otherwise of the proceeding that led to the determination of the employment of the claimants is whether the defendant adhere to the terms and conditions of the contract of employment. The terms and conditions of employment of this particular contract is clearly provided for under the FRSC Regulations on Maintenance of Discipline, 2013; The Defendant is therefore bound to comply strictly with the provisions of the enabling Statute to ensure that the termination of the employment of the Claimants were lawful.

It is worthy to note that the law is elementary that any employment with statutory backing (like that of the claimants) where certain actions are to be taken, such actions must be undertaken in accordance with due process and the rules/regulations prescribed by the laws governing such employment. See the cases of PSYCHIATRIC HOSPITAL MANAGEMENT BOARD VES EJITAGHA (2000) 11 NWLR (PT. 677) PG 154; EKPEROKUN VRS UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 34) PG 162.

Regulation 51(5) of the FRSC Regulation on Maintenance of Discipline, 2013 provides for the procedure for instituting or commencing a disciplinary procedure against an employee on issues bordering on patrol misconduct. It provides as follows:

            “When any report is made against any member of the corps, the officer or            marshal on whom the report is made shall be informed promptly in writing        by the             appropriate authority and shall be requested to show satisfactory       reasons why disciplinary action should not be taken against him. If his    explanations are not satisfactory he shall be referred to FRSC Disciplinary             Panel for further investigations and recommendation to management provided that in the case of patrol misconduct, all statements,       queries and response shall            be forwarded to the Head of Department Administration and Human Resources     within 7 days of arrest. The HOD AHR   shall review the response to the query   and if satisfied that no prima facie case             has been established against the    member of corps shall issue a letter discharging him otherwise an FDP shall be conveyed to investigate the matter.”

I have taking this time to quote this provision extensively in order that the court’s reason for its decision only, be appreciated. This above proviso extensively outlined the procedures to be followed in the case of patrol misconduct, the offence alleged by the defendant to have been committed by the claimants. From this proviso or regulation one can see that one of the requirements is that the officer or marshal on whom the report is made shall be informed promptly in writing, in other words must be served with a query and his or her response shall be forwarded to the Head of Department Administration and Human Resources within 7 days of arrest.

There is nothing before this court to show that the Claimants were informed in writing on the said allegation of patrol misconduct and they were equally not issued or served with any query so as to give the Claimants the opportunity to respond to such query. The effect of that is all decisions reached with respect to that allegation is a nullity. See MIAPHEN VRS UNIVERSITY OF JOS CONSULTANCY LIMITED (2013) LPELR – 21904 (CA); A.G KWARA STATE VRS ABOLAJI (2009) 7 NWLR (PT. 1139) PG 199 at 212.

In my candid opinion any public body charged with the power to employ staff must act within the statute creating it and ensure that it mandatorily abides with the provisions of that statute or rules governing its procedure for discipline or dismissal of its staff. Although the defendant have the powers by virtue of the relevant regulations to dismissed the claimants, But they have failed to abide or adhere to the strict construct of the rules and regulations in the circumstance. I so hold.

I have considered the evidence of both Parties including the exhibits, particularly Exhibit CW1 EK 002 and I therefore hold that the procedure adopted by the Defendant in terminating the employment of the Claimants for patrol misconduct is null and void, for it was not in accordance with the provisions of Regulation 51(5) of FRSC Regulation on Maintenance of Discipline, 2013. This is based on the fact that a contract which is regulated by statutory provision cannot be terminated without following strictly the provision of the Statute that stipulates the mode of such termination. See Longe vs First Bank of Nigeria, Plc (supra), Oni Vrs Gov, Ekiti State (2019) 5 NWLR (Pt. 1664) 1-192, Pg 1 @ Pg 20 Paras G – H. The said dismissal of the claimants is hereby declared null and void.

Issue one is decided in favour of the Claimants. I so hold.

ISSUE TWO

Whether the Claimants have properly dispensed with the burden placed on them by the law to entitle them to the reliefs sought by them.

It is an elementary principle of law that the burden of proof in a civil case is placed on the Claimant first and foremost to lead evidence in proving his or her assertions. A party who asserts must prove. See Section 131(1) of the Evidence Act, 2011. Also A.G Rivers State Vrs A.G Bayelsa State (2013) 3 NWLR P.123; Odukwe Vrs Ogubuyi (1998) 8 NWLR (Pt. 561) P.339.

However, this burden of proof is on the balance of probabilities based on the preponderance of evidence which may shift from one party to another depending on the evidence. The burden will rest on the party who would fail if no evidence at all or no more evidence were led on either side. See Sakati Vrs Bako & Anor (2015) LPELR 24739 (SC). When a Claimant by his or her cogent and clear evidence prove the act or acts of the Defendant, which constitutes the infraction, then the burden will shift to the Defendant. See Ohochukwu Vrs A.G Rivers State (2012) 6 NWLR, P. 53. It is also important to note that the burden of proof in the proceeding must be connected to the issues raised in the pleadings and the strength of the entireties of evidence adduced at the trial.

The Claimants alleged that they were all employees of the Defendant at Ahoada unit command of the Rivers State Sector Command of the Defendant. That their employments were unlawfully terminated by the Defendant via letters of termination of appointment which are marked as Exhibits CW1 EK 004, CW2 EK 007, CW3 EK 008, CW4 EK 009 and CW5 EK 010, respectively; all dated the 15th day of April, 2015. They also tendered Exhibits CW1 EK 001 which is the Amended Schedule of Patrol of Ahoada Unit Command. Exhibit CW1 EK 002 which is the Report on FDP Investigation on Allegation of Patrol Misconduct against DRC Ekpang K Thomas and 4 ors and Exhibit CW1 EK 005, which is the appeal against the FDP’s recommendation dated the 12th day of December, 2014. They contend that the termination of their employment was based on the recommendation of the FDP but the proceedings of the FDP is not in accordance with the provision of Regulation 51(5) of FRSC Regulations on Maintenance of Discipline, 2013, therefore it is null and void. They also contend that it is the unit commander of Ahoada unit command that authorized the change of the Route. The Defendant however contend that the termination of the employment of the claimants were done in accordance with the provision of the law after they were given ample opportunity to defend themselves. The Defendant called a witness who adopt his witness statement on oath. Though, under cross examination he states that he cannot remember if he signed the statements on oath before a commissioner for oaths. This prompt the learned counsel to the claimants to argue that the evidence of the witness to the Defendant should be expunged because he did not depose to a written statement on oath before a commissioner for oaths.  However, the court have held that failure to depose to the written statement on oath before a commissioner for oaths will not render the deposition invalid, once the deponent adopts same at the trial. See the cases of Udeagha Vrs Omegara (2010) 11 NWLR (Pt. 1204) P168. Also see Buhari Vrs INEC (2008) 19 NWLR (Pt. 1120) P.246.  On the authority of the above position of the law, the evidence of DW1 will not be expunged.  I so hold.

But the Defendant could not show that the proceeding which led to the determination of the claimants’ employment was done in accordance with the provision of the statement which regulate the terms of their contract. That is the FRSC Regulations on Maintenance of Discipline 2013. Also, the Defendant could not rebut the fact that it was the unit commander who authorize the change of the Route; for the DW1 under cross examination testify that he could not remember if he confirmed the alteration at the unit command. The DW1 also stated under cross examination that when he asked the unit commander of the alteration he denied it However in Exhibit CW1 EK002 at page 143, DWI testifying, under cross examination before the Disciplinary panel, stated that the unit commander was trying to convince him that the team can go that far sometimes but he was not comfortable with the answer.

In the circumstances, the burden has shifted to the Defendant to lead evidence to rebut this fact which they failed to do. Therefore, under the authority of section 133 (2) of the Evidence Act 2011, I hold that the claimants have discharged the burden placed on them by law and I accordingly rule in their favour.

On the reliefs sought by the claimants, it is an established principle of laws that when an employment of the claimants is with statutory flavor and the termination is declared to be wrongful or null and void, reinstatement will be effected by court. See the case of Odiase Vrs Auchi Polytechnic (1998) 4 NWLR (Pt. 546) P. 477 at pg 491 PARA C – D; Also, see FMC, Ido – Ekiti Vrs Alabi (2012) 2 NWLR P411.

In light of the above position of the law, the argument of the learned counsel to the defendant that the employer has the right to hire and to fire, and the court will not force a willing employee on an unwilling employer cannot hold water. This is based on the fact that there is a special relationship between the claimants and the defendant in this particular case, because it is regulated by a statute which clearly spell out the nature of the relationship. It is not just a mere master servant relationship. So the common law doctrine does not apply. See Union Bank Plc Vrs Soares (supra).

 I therefore, order the defendant to with immediate effect reinstate the 1st to the 5th claimants back to work with all rights and privileges attached thereto, including the payment of all outstanding salaries arrears, benefits, allowances, promotions and other entitlements from the date of termination till date.

However, on the issue of damages, it is settled law that a wrongfully terminated or dismissed claimant cannot get both reinstatement and damages at the same time, it must be one or the other. See PTI Vrs Nesimone (1995) 6 NWLR (PT 402) (a) 479. Also, see Onalaja Vrs African Petroleum Ltd (1991) 7 NWLR (Pt. 206) P. 691.

 I therefore hold that the claimants cannot get the both at the same time and so the claimants relief of both general and special damage must fail like pack of cards. And same is hereby dismissed.

For purpose of clarity and for the reasons stated in this judgment I hold as follows:

  1. I declare that the termination of the claimants’ employment was wrongful, illegal, null and void and of no effect.

  1. I declare that the procedure adopted by the disciplinary panel constituted by the defendant is in breach of the FRSC regulations on maintenance of discipline 2013 and as such null and void.

  1. I declare that the employment of the 1st to 5th claimants with the defendant is still subsisting.

  1. I order that the claimants be reinstated back to work with all their rights and privileges attached thereto including payment of all outstanding salaries arrears, benefits, allowances, promotions and other entitlements from date of the purported termination to date.

  1. Relief five is hereby dismissed.

  1. All terms of this judgment are to be complied with within 30 days from today.

Parties are to bear their respective costs.

I so hold.

Judgment is hereby entered accordingly.

 

 

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

Signed

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