IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 20TH JULY, 2018.
SUIT NO.: NICN/EN/28/2017
BETWEEN:
HANNAH MARKSON CLAIMANT
AND
- INSPECTOR GENEAL OF POLICE
- COMMISSIONER OF POLICE, ENUGU STATE DEFENDER
- POLICE SERVICE COMMISSION
REPRESENTATION:
C.J. Nwibe Esq. for the Claimant
- I. Ogbu Esq.for the Defendant
JUDGMENT
The claimant in this suit by a write of summons dated 28th November 2015 and later amended on the 10th May, 2018 to join the 3rd Defendant i.e the Police Service Commission sought the following relieves from this court:
1) A declaration that the termination of the claimant’s employment was wrongful and contrary to the rules of natural justice.
2) An order re-instating the claimant to her employment.
3) An order for payment of backlog of the salaries of the claimant from April 2011 till date.
4) An order transferring the claimant from Enugu Police Command to Akwa Ibom State Command.
5) An order promoting the claimant to the rank of inspector since all her mates have been so promoted during her ordeal in the hands of the defendants.
6) N2, 000,000 (Two Million naira) general damages for wrongful dismissal from employment.
The claimant filed her amended statement of facts on the 20th November, 2015 and witness statement on oath as well as a list of witness and list of document along with the statement of facts. Following an application on the 10th May, 2018 the complaint was amended on the 10th May, 2018 to join the police service commission as 3rd defendant in this suit. All the processes filed in this suit were served on the 3rd defendant. The 1st and 2nd defendant entered appearance in this suit on the 18th March, 2018. Counsel to the 1st and 2nd defendant Mr. D.I. Ogbu Esq. filed a statement of defence along with the memorandum of appearance. However he failed to file a proper witness deposition. The statement on oath of the only witness listed one as ASP. Okereke Njoku was not commissioned and had no deponent signature or initial and was thus struck out on the application of the claimant counsel on the 10th May, 2018.
The 3rd defendant was served with the amended complaint and other processes in this suit on the 18th May, 2018. The 3rd defendant however did not file any defence to this action.
Hearing in this suit commenced on the 19th March, 2018. The claimant Hannah Markson testified as CW1 as the sole witness she adopted her witness statement on oath and tendered the following documents in proof of her case
1) School Leaving Certificate of Holy Child convent school Exhibit C1.
2) WAEC Statement of Result Exhibit C2
3) Offer of Provisional Admission into ESUT Exhibit C3
4) Students class admit card Exhibit C4
5) ESUT Course Registration Form Exhibit C5
6) Proceedings of Magistrate Court in suit No: MEN/805C/2011, Exhibit C6.
The claimant ie CW1 was cross examined by the 1st & 2nd defendant counsel Mr. D.I. Ogbu Esq. After the cross examination, the said counsel failed to attend subsequent hearing of the suit.
The proceedings was adjourned to 10th May, 2018 for 1st and 2nd defendants defence on the above stated date. The 1st & 2nd defendant counsel was absent in court without any explanation and their defence was foreclosed.
The matter was subsequently adjourned to 19th June, 2018 for definite defence of 3rd defendant. Hearing Notice was served on the 3rd defendant who was absent in court. The 3rd defendant’s defence was foreclosed. The 3rd defend who had been joined as a party and also served with the originating process was also absent, unrepresented and did not file and defence to the action.
The matter was further adjourned to the 18th July, 2018 for adoption of the claimant’s written address.
The claimant’s case is that she joined the police force in February 2001 with force No – 024795 and as at June 2009 she was promoted to the rank of a Corporal. On the 29th March, 2011 at about 10 pm. She was arrested in the house of her fiancée a long Agbani Road Enugu by ASP Okeke and his team of policemen. She was detained and latter her family members were also arrested along with her mother and variously detained at Eket Police Command, Enugu and latter the claimant was transferred to force CID Abuja where she was released by an order of the Federal High Court Abuja. When she was first arrested on the 29th March, 2011 a Toyota Rav. 4 SUV with Reg. No TU 716 KJA belonging to her mother was confiscated and taken to the Police Command in Enugu. Despite the fact that the claimant’s mother brought proof of ownership of the car, the police has refused to release the car instead her mother was arrested and detained for days. It is her case that upon being released by the order of the Federal High Court, the police later framed charges of forgery against her and after one year and one month of trial at a Magistrate court in Enugu she was discharged had acquitted. The claimant at the point of her being released via the order of the Federal High Court was informed that she has been dismissed from the police force. That up till the time of filing this suit the reason for her dismissal and the ordeal her family went through has not been disclosed to her.
From the state of pleadings and the circumstances of this case the main issue for this court to determine in this suit is whether the alleged dismissal of the claimant is justified and whether an order of re-instatement can be made in the circumstances.
The claimant gave evidence as CW1 in his witness statement on oath in paragraphs 11, 12,13, 14,15, 16, 17 and 18 of his ordeal in the lands of the police. It is also his testimony specifically that upon receipt of the order of court releasing the claimant and her mother from d detention the 2nd defendant communicated to her inside the cell that the claimant had been dismissed from the Nigerian Police. The claimant also gave evidence and tendered Exhibit 6. The record of proceedings in charge No: MEN/805c/2011 wherein the charge of forgery were dismissed against the claimant and he was discharged. These pieces of evidence were not contradicted through cross examination. Where the evidence of a witness is unchallenged or uncontradicted and whereby its very nature the evidence is not incredible the trial court has no option but to accept and act on it. See Bello V. Eweka [1981] 1SC 101. This court has no option than to act on the uncontroverted evidence given by the CW! (the claimant) in this action.
During cross examination in answer to questions put to the claimant by the defendant lawyer. The claimant stated:
Q: Which command were you dismissed?
A: At the police headquarters Enugu.
Q: Was your dismissal in compliance with Police Rules and Regulations?
A: No it was not
Q: Was an orderly room trial conducted in respect of your dismissal?
A: No it was not.
Q: You were charged to a Magistrate court for what offence?
A: I was charged with conspiracy and fraud
Q: Did you appeal against your dismissal in accordance with police regulations?
A: I was in detention when I was dismissed and after that I was still detained for 2 months. I had no opportunity to appeal. I was in the cell when the orderly room trial was conducted in my absence and thereafter the proceedings were brought to me for my signature while still in the police cell. I was forced to sign the orderly room trial proceedings which I never participated.
The defendant offered no evidence to contradict these pieces of evidence elicited during cross examination. This court is bound to act on this unchallenged, and credible evidence elicited during cross examination. The said orderly room trial which was conducted in the absence of the claimant offends the provisions of the Police Act. It is also a violation of the right of fair hearing.
On the strength of these evidence, this court hereby set aside the orderly room trial for being in clear breach of the claimants right to fair hearing as guaranteed under S.36 (1) of the 1999 Constitution. Accordingly the dismissal of the claimant from the Nigerian Police consequent upon the orderly room trial is hereby set aside and is hereby declared null and void. The claimant is entitled and is hereby reinstated forthwith into the Nigerian Police Force from the date of this judgment.
The claimant in his amended statement of facts has also sought an order of this court ordering the payment of backlog of the salaries of the claimant from April, 2011 when she was wrongfully dismissed from the police force. I have earlier in this judgment declared the purported dismissal of the claimant as null and void. Also having also made an order re-instating the claimant, this court has the power to order the payment of backlog of the claimant’s salaries as claimed. In Olaniyan & Ors. V. University of Lagos & Anor [1985] LPELR – 2565 (SC).
The Supreme Court while considering the effect of re-instatement held:
“I do not take the word re instatement to be a term of art. [See Hodge V. Ulter – Electric Ltd. (1943) 1 KB 462, 466] its ordinary and primary meaning is to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive in effect, and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period.
See also Morris V. Gestetner [1973] 1 WLR 1373, 1382,
On the strength of the above cited authority. I hereby hold that the claimant is entitled to the payment of backlog of her salaries from April 2011 to the date of this judgment. The defendants shall compute and pay over to the claimant all the backlogs, of her salaries forthwith.
The claimant also seeks an order of this court directing the defendants to transfer the claimant out of Enugu Command of the Nigerian Police to Akwa Ibom State. I have carefully considered the circumstances of this case; the ordeal which the claimant went through in Enugu Command of the Nigerian Police as elicited in his uncontroverted evidence in this proceedings. This evidence of the claimant ordeal no doubt creates a situation of intimidation and fear in the mind of the claimant if directed to resume at Enugu Command of the Nigerian Police. While transfer of an employee is at the discretion of the employer However the circumstances of this case is such that this court can in the exercise of the inherent powers of this court make any further order that would give effect to the terms of this judgment.
This position is supported by the court of Appeal decision in Dr. Dalhatu Araf V. Mr. V. Oyedim [2010] LPELR – 3797(CA) where the court held.
“It is a correct principle of law that a trial court can make consequential orders consequential orders consequential orders is that which flows naturally and directly from the judgment so that it can give effect to the judgment, even if it was not specifically asked for, provided it relates to the main relief asked for and which was fought for by the parties and pronounced upon by the court”.
In the circumstances I will consider the relief for the order transferring the claimant from Enugu Police Command to Akwa Ibom State Command as an order which will give effect to the order of re instatement. This is so because considering the ordeal the claimant has gone through in Enugu State Command she may be intimidated and would not work with a free mind if allowed to be in Enugu Command of the Nigerian Police. In the circumstances I hereby order that the defendant shall upon reinstatement transfer the claimant out of Enugu State Command to Akwa Ibom State Command where she was originally transferred from to Enugu State Command.
The claimant also seeks an order directing the claimant to be promoted to the rank of inspector like her mates who have been promoted during her ordeal. The claimant did not lead any evidence in prove of this head of claim. The law is that the claimant ought to have led evidence and also establish before this court that she ought to be entitled to an order promoting her to the rank of inspector. This, the claimant failed to do. In the circumstances this head of claim fails and is hereby dismissed.
The claimant claims the sum of N2,000,000 (Two Million Naira) general damages for wrongful dismissal from here employment. She gave evidence in 11 to 21 of her ordeal in the hands of the defendants leading to her wrongful dismissal. The claimant also testified that she suffered untold hardship as a result of her incarceration with members of her family for committing no known offence. She testified that her younger brother whom the claimant was supporting in school financially had to drop out of school consequent upon her wrongful dismissal from her employment. This evidence was never contradicted. It is also he evidence that she was charged to court and after a period of over a year the charges against here was dismissed and she and her mother were discharged in Exhibited C6. The law is that uncontroverted evidence must be accepted and acted upon by a court in which it is presented see the case of New Improved Manibannc Ventures Ltd. V. First Bank Plc. [2009] LPELR 8757 (CA).
Having also declared the dismissal of the claimant was unlawful and therefore null and void. I am inclined to award general damages against the defendants jointly and severally. I hereby award the sum of N2 Million Naira as general damages in favour of the claimant against the defendant for the unlawful dismissal of the claimant by the defendants and for the ordeal the claimant was subjected to by the defendants.
Finally I hereby make an order in the following terms. The Toyota RAV4 SUV car impounded by the 2nd defendant belonging to the mother of the claimant wherever it is kept shall be released forthwith to the claimant for delivery to her mother.
On the whole the claims of the claimant succeeds in part. Judgment is hereby entered in favour of the claimant against the defendants jointly and severally in the following terms.
1) It is hereby declared that the termination of the claimant employment was wrongful null and void and a violation of the claimant’s right of fair hearing as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.
2) The claimant is hereby re-instated forthwith, into the Nigerian Police Force from the date of this judgment. The 3rd defendant shall direct and effect the re-instatement of the claimant into the Nigeria Police Force.
3) The 3rd defendant shall direct and effect the computation of the salaries, allowances and other emoluments of the claimant effective from April 2011 to the date of this judgment and pay same to the claimant.
4) The defendants shall effect a transfer of the claimant from Enugu State Police Command to Akwa Ibom State Police Command in order to ensure a free and conducive working environment for the claimant.
5) The defendants shall pay the sum of N2 Million Naira as general damages for the unlawful termination of the claimant’s employment and for the ordeal the claimant suffered in the hands of the defendants.
The defendants shall comply with the terms of this judgment with 30 days from today. Failure of which the sum of N2 Million Naira hereby awarded shall attract interest at the rate of 5% until the liquidation of the sum.
The cost of this action is assessed at N250,000.00
