IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATED: 14TH NOVEMBER, 2017
SUIT NO: NICN/CA/13/2017
BETWEEN
EX-SP EMMANUEL AKPABIO UDOETTE
CLAIMANT
AND
- THE NIGERIA POLICE FORCE
- POLICE SERVICE COMMISSION
DEFENDANTS
REPRESENTATION
F.N. NACHAMADA for the claimant
No appearance for the Defendant
JUDGMENT
The Claimant brought this action vide a complaint, dated the 14th day of March 2017 wherein he sought the following reliefs to wit
- ADECLARATION THAT the Defendants did not accord the Claimant FAIRHEARING before dismissing the Claimant.
- A DECLARATION that the dismissal of the claimant is illegal, therefore nulland void.
- AN ORDER RE-INSTATING theClaimant into the service of the 1st Defendant
- AN ORDER placing the Claimant to the rank that the Claimant ought to have been but for the dismissal.
- AN ORDER for the defendants to compute the Claimant’s salaries, wagesand other emoluments from the time of dismissal of the Claimant withoutany loss until these emoluments are fully and completely restored.
6) COST OF FILING this suit assessed at N900,000 (Nine Hundred Thousand Naira) only against the Defendants jointly and severally.
SUMMARY OF FACTS
The claimant was appointed CADET ASP via letters dated 24/04/2000. His last promotion was from the rank of DSP to the rank of SP. He had a medical situation which involves swelling of the lower part of his scalp, and this resulted to re-occurring pain, severe headache and blurred vision.
Sequel to the preceding paragraph he was a patient at the Federal Medical Center Gusau and was booked for surgery from 20th – 26th December, 2013. To this end, he applied for casual leave on 10/12/13, hoping to get approval on the 20/12/13.
The Claimant still being hopeful for the leave approval proceeded for the surgery on 20/12/ 13. Upon return to work, on 27/12/13. He received a query that his leave was disapproved on 23/12/17 to which he replied on 30/12/13.
Having replied the query, he settled to a work until a junior officer informed him on 15/10/15 that COMPOL A has received a letter concerning discipline of some officers and his name was among the officers involved, and those officers were to appear before the 1st defendant’s committee for interview from 19th to 23rd October 2015.
The claimant stated that he was not invited for the said interview. He was not told the allegations against him, the source of the said allegations, neither was he shown any documentary evidence nor asked to make any representation in defence.
Despite all this the claimant decided to attend the interview. He later attended same and was asked questions, to which he provided answer to.
He was however asked to go, and that he will be communicated on the outcome of the interview within 90 days.
After the said 90 days, nothing happened. On November, 2015, he was however posted to Delta State, Police Commend as DPO, whole in 16/12/2016. He was dismissed by the defendant.
DEFENDANTS
NO REPRESENTATION
TRIAL AND EVIDENCE
The Defendants were duly served with the originating process but refused to file Defence or appear in this case. The case was adjourned for hearing from 20/06/2017 to 04/07/2017. Hearing Notice was issued and served on the defendants. On 04/07/2017 the Defendants did not appear in spite of the Hearing Notice.
The Claimant proceeded and adopted his Written Deposition and tendered exhibits Cl – C8. The case was adjourned to 12/9/2017 for Cross Examination of CW1, the Claimant, and for defence. Hearing Notice was also ordered to be issued and served on the Defendants. On 12/09/2017 the Defendants did not appear. The
defendants were therefore foreclosed from cross examining the Clamant and from defending the case having been given opportunity but failed to utilize same.
The case was therefore adjourned to 17/10/2017 for
adoption of Final Address.
WRITTEN ADDRESSES
CLAIMANTS
Learned Counsel in his final written address, formulated lone issue for the determination of this court, to wit:
“Whether the Claimant has proved his claim to
the extent to be entitled to the reliefs sought”
Learned counsel while reproducing the provisions of Section 318 of the CFRN 1999 as Amended Regulation 010101, AND 160101 RSR 2009, and the case of UJAM VS IMT (2007) 2 NWLR (PT. 1019) 47O @ 492 B-C, submitted that the Public Service Rules was made pursuant to the constitution and as such, the claimant’s employment is protected by statute, and can only be terminated only in line with the statute.
Learned counsel also referred the court to Section 36(1) CFRN 1999 and the case of BABA VS NCATC (1991) 5 NWLR (PT. 192) P. 388 @ 415 which dealt with the issue of fair hearing extensively.
He submitted that the power to appoint, promote and discipline Police Officers is vested in the 2nd defendant not the 1st defendant. Paragraph 30(a) and (b) of Part 1 of 3rd
Schedule to 1999 Constitution*provides:
“30. The commission shall have the power to;
- a)Appoint persons to office (other than the
office of the Inspector-General of Police) in
the Nigeria Police Force; and - b)Dismiss and exercise disciplinary control
over persons holding any office referred to
in sub-paragraph (a) of this paragraph”.
He argued that the Claimant was at the time of his dismissal a Superintendent of Police therefore falls within the persons
referred to in paragraph 30(a) of Part 1 to 3rd Schedule to the 1999 Constitution. It is only the Police Service Commission, 2nd Defendant, established by Section 153(1) (m) in exercise of its powers under Paragraph 30(b) of Part 1 of 3rd Schedule to the 1999 Constitution (as amended) that has the power to dismiss the claimant and no other body.
He reproduced the content of Exhibit C8, the Police wireless message dated 16/12/2016 which inter alia reads:
“… POLSCOM HAS ALSO APPROVED THE DISMISSAL FROM THE NIGERIA POLICE OF THE FOLLOWING SPOS VIZ:- AP/NO. 119538 ASP. SUNDAY NWAJA WEF 27/10/2016 X AP/NO. 57547 SP. EMMANUEL AKPABIO UDOETTE WEF 27/10/2016…”
From exhibit C8, the dismissal of the Claimant in a wireless message dated 16/12/2016 was with effect from (WEF) 27/10/2017.
To counsel, the pertinent question is when did the 2nd Defendant
dismiss the Claimant? The answer cannot by any stretch
of imagination be found in Exhibit C8. However, the fact
remains – that the 2nd Defendant has dismissed the
Claimant from employ of the 1st Defendant.
Learned counsel submitted further that the writing a querry and reply of same, is not sufficient and does not amount to fair hearing, in an employment with statutory flavour
To counsel, Assuming but not conceding that the Force Disciplinary
Committee of the 1st Defendant exercised a quasi judicial
power in the “interview” that took place from 19th – 23rd of
October, 2013, counsel submitted that the procedure did not
satisfy requirement of fair hearing in that Exhibit C7, the
invitation letter:
- a)Was not addressed to the Claimant;
- b)Did not inform claimant of the allegations against him;
- c)Did not inform the Claimant that he is to appear for
purpose of discipline; - d)Did not inform the Claimant on the source of allegations
against him; - e)Did not require the Claimant to make representation in
writing and bring witness or documents in his defence –
he reffered to Regulation 030307(v), (Vi) and (viii) of the Public Service Rules, 2009.
Counsel contended that the Claimant appeared before the Force Disciplinary Committee on 20/10/2015. Defendants did not get back to the Claimant on this issue until the dismissal via exhibit C8 dated 16/12/2016. From 20/10/2015 to 16/12/2016 is more than l(One) year. In other words the disciplinary procedure lasted for more than l(One) year which is contrary to Regulation 030307 (xiii) of the Public Service Rules, 2009 which provides:
“All disciplinary procedures must commence and be completed within a period of 60 days except when it involves criminal cases”
Learned counsel submitted further that the Force Disciplinary Committee of the 1st Defendant does not have the power to discipline the Claimant. The power to discipline the Claimant is constitutionally vested in the 2nd Defendant. The 1st Defendant’s Force Disciplinary Committee in this regard is an administrative committee or facts finding panel lacking quasi judicial power. The Force Disciplinary Committee made finding of
facts which it forwarded to 2nd Defendant which has the
power to discipline the Claimant.
The 2nd defendant, upon receipt of recommendation that
the Claimant be dismissed, where it has made up its mind
to dismiss the Claimant, it ought to have heard from the
Claimant before dismissing him. The 2nd Defendant which
has quasi judicial powers proceeded to dismiss the
claimant without according the Claimant fair hearing.
On the need for an employer to hear from an employee
prior to dismissal, counsel referred the court to the decision of this Honourable court in Otukadejo V. Niger Dock Nig. Pic (2015)52 NLLR (Pt. 173) P. 61 at 84 para. D – E, where it held thus:
“The employer’s duty where a panel of enquiry has made out a case against an employee has been succinctly put by the Supreme Court in the case of Alhaji Baba V. Nigeria Aviation Training Centre (1991)5 NWLR (Pt. 192)388 at 418 (1991)3 N.S.C.C. 145 at 158 per Nnaemeka Agu JSC:
Counsel submitted that the 2nd defendant is a statutory body by virtue of Section 153(1) m and paragraph 29 and 30 of Part 1 of the 3rs Schedule to the 1999 Constitution. The 2nd defendant is invested with power to appoint, promote and dismiss the Claimant which power it purportedly exercised in Exhibit C8, The Force Disciplinary Committee of the 1st Defendant is not a statutory body. The Force Disciplinary Committee after its sitting of 19th – 23rd October, 2013 recommended dismissal of the Claimant to the 2nd Defendant, the statutory body. The 2nd defendant acted on or implemented the recommendation or report of the Force Disciplinary Committee without strictly complying with the rules of natural justice –Sogbesan V. Unilag & Anor (2014)47 NLLR (Pt. 153)346 at 351.
He submitted further that the gross misconduct for which the Claimant was issued Exhibit C4 – query dated 27/12/2013 occurred in December, 2013 meaning that the Defendants became aware of this misconduct in 2013. The defendants in spite of notice of the alleged misconduct kept the claimant working and even made him the Divisional Police Officer (D.P.O) of Abavo Police Division in Delta State, and as such the defendant did condone and waive this alleged misconduct therefore, they cannot turn round to dismiss the Claimant on any ground related thereto.
On the impropriety of an employer dismissing an employee on that
which has been condoned, counsel relied on the decision of this honourable court in Uchegbe V. Ecobank Nig. Pic (2015)52 NLLR (Pt. 176) P. 579 at 600 – 601 Paras. G – C where it held thus:
“In the case of Mrs Abdulrahaman Yetunde Mar/am V. University of Ilorin Teaching Hospital Management Board & Anor unreported suit No. NICN/LA/359/2012 the judgment of which was delivered on June, 19, 2013; this court at page 26 held thus on similar issue:
The case of Ekunda V. University of Ibadan (2001)12 NWLR (Pt. 681)220 CA held that if after the knowledge of a fraud committed by an employee the employer elects to retain him in his services, the employer cannot at any subsequent time dismiss him on account of that which had been waived or condoned. See also ACB Pic V. Nbisiki (1995)8 NWLR (Pt. 416) 725 CA and Nigerian Army V. Brig. General Maude Aminu Kano (2010)1 MJSC. (Pt. 1) 151. On the basis of these authorities, this court held that when an employer is lax or lazy in disciplining an employee, that would be read as condoning the act of employee and so the employer would lack the right to dismiss him afterwards” – see also George V. FBN Pic (2014)5 NLLR (Pt. 126) P. 124 at 322 para. B; Alaigwe V. Champion Newspapers Ltd & Anor (2014)42 NLLR (Pt. 130)P 234 at 254 paras. A – C; and Musa V. Arbico. Pic (2015)56 NLLR (pt. 191)P. 220 at 290 – 291 Paras. H-B.
In conclusion, learned Counsel urged the court to grant the prayers of the claimant.
COURT
I have gone through the case of the Claimant, even though the defendant was unable make any impute in this suit. I have also perused the exhibits tendered by the claimant. The lone issue that comes to mind for determination is whether the claimant was able to prove his case?
The gravamen of the case of the Claimant is on the fact that he was not given fair hearing prior to his dismissal from the employment of the defendant, as a result of the fact that the 2nd Defendant was supposed to have invited him, (the claimant) after receiving the report from the Force Disciplinary Committee of the 1st defendant.
It is also the case of the Claimant that the said force disciplinary committee never invited the claimant for interview, but that he (the claimant) became aware through the information of a junior officer and decided to attend the interview.
It is trite that where an employment is backed up by statute, termination of such employment must be in conformity with such statute or the rules made there under. See the case of IDERIMA VS RIVERS STATE CIVIL SERVICE COMMISSION, (2005) 16 NWLR (PT.951) 378; UDONSEK VS AKWAIBOM STATE GOVT AND ORS (2015) 56NLLR (PT 193) 563 @603 PARA B – C.
By Paragraph 30(a) and (b) of Part 1 of 3rd
Schedule to 1999 Constitution, the power to appoint, promote and discipline Police Officers is vested in the 2nd defendant not the 1st defendant. The said paragraph of the constitution provides thus;
“30. The commission shall have the power to;
- c)Appoint persons to office (other than the
office of the Inspector-General of Police) in
the Nigeria Police Force; and - d)Dismiss and exercise disciplinary control
over persons holding any office referred to
in sub-paragraph (a) of this paragraph”.
Sequel to the above, it is the 2nd defendant who ought to call for the interview of the claimant over allegations of misconduct if any, and not the 1st defendant, setting up the committee to try the claimant, even without inviting him.
That said, the claimant was however interviewed, and he waited for a period more than a year, before his dismissal was communicated to him through the Police wireless message. This to me is also wrong, the 2nd defendant who is supposed to be the appropriate person to dismiss the claimant ought to communicate to the claimant on his dismissal within 60 days, as provided in the public service rules 2009.
It is not the duty of the 1st defendant to do a wireless message after one year to inform the claimant that the 2nd defendant has approved the dismissal of the claimant, and I so hold.
Flowing from the foregoing and for all the reasons given above, the lone issue is awnsered in the affirmative, and in favour of the Claimant.
Consequently, Claims 1 to 5 of the Claimants’s claim all succeed, whereas, the Court awards the sum of N50,000.00 as cost of this suit.
Judgement is entered accordingly.
…………………………………………………….
HON JUSTICE M. N. ESOWE
PRESIDING JUDGE, CALABAR DIVISION
