IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 4TH OCTOBER, 2018 SUIT NO. NICN/AK/33/2017
BETWEEN
IRETIOLU WEMIMO DADA ………………………….CLAIMANT
AND
1. ONDO STATE JUDICIAL SERVICE COMMISSION
2. CHIEF JUDGE ONDO STATE …….……………..DEFENDANTS
REPRESENTATION:
E. Udofot with him are Olaoluwa Umoru, Olakunle Ajayi, L.E Udofot for the claimant
H.M Falowo (Assistant Chief Legal Officer, Ondo State Ministry of Justice) with him is A .A Adeyemi (Mrs) (Assistant Chief Legal Officer, Ondo State Ministry of Justice) for the defendants
JUDGMENT
By a General Form of Complaint filed on the 15th day of November, 2017, the claimant claimed against the defendants the following reliefs:
1. A declaration that the appointment of the claimant by the 1st defendant to the position of the Chief Magistrate Grade II vide a letter of appointment dated 5th November, 2013 is valid, legal and subsisting.
2. A declaration that the letter of suspension dated 14th September, 2017 issued by the 1st defendant, on the instructions/directives of the 2nd defendant, to the claimant even when the claimant was on maternity leave is illegal, unlawful, null and void.
3. A declaration that the purported suspension of claimant’s employment by the1st and 2nd Defendants during the course of the claimant’s maternity confinement constitutes a violation of her fundamental rights to human dignity and freedom from discrimination as guaranteed by Sections 34 and 32 [SIC] of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Articles 2, 5, 14 and 19 of the African Charter on Human And People’s Rights (Ratification And Enforcement) Act, CAP. A9, Laws of the Federation, 2004 and the International Labour Organization’s Convention No. 111 of 1958 on discrimination.
4. An order setting aside the letter of suspension dated 14th September, 2017 issued by the 1st defendant to the claimant; same being wrongful, invalid null and void.
5. An order directing the defendants to allow the claimant resume duty in her position as Chief Magistrate Grade II in Ondo Magisterial District being her last place of posting before the suspension or any other magisterial district/office within Ondo State Judiciary as the 1st and 2nd defendants may post or transfer the claimant to, without loss of promotion and entitlements.
6. An order directing the defendants to pay the claimant the total sum of One Million, Five Hundred and Fifteen Thousand, Five Hundred and Twenty Three Naira, Sixty Five Kobo (N1,515,523.60k)being the salary and allowances of the claimant for the period of October, November, December, 2016, January 2017, salaries and allowances for September, October and November, 2017 as well as imprest and outfit allowances made up as follows:
a. Salaries and allowances for October,
November and December 2016 – N568,914.06
b. Salaries and allowances for January, 2017- N194,068.27
c. Salaries and allowances for September,
October and November 2017 – N546,204.81
d. Imprest at N10,000 per month for
August to November, 2017 – N40,000.00
e. Outfit allowance for year 2017 – N166,336.51
TOTAL – N1,515,523.65
7. An order directing the defendants to subsequently continue the payment of the claimant’s salary, allowances and other entitlements of the claimant while in the employment of the defendants without prejudice to the claimant’s promotion entitlements from December, 2017 till the day of judgment and thereafter.
8. The sum of Three Hundred Million Naira (N300,000,000.00) as aggravated and exemplary damages against the defendants for the undeserved, outrageous and unwarranted contempt, cruelty, malice, oppression, humiliation, molestation, embarrassment, degradation, mental trauma, torture, inconveniences ad hardship occasioned in the defendants’ act of unlawful suspension of the claimant from her post as a Chief Magistrate Grade II.
9. An order of perpetual injunction restraining the defendants whether by themselves, agents or privies from further suspending or tampering with the employment/appointment, salaries, allowances or other entitlements of the claimant on the alleged irregularities of the appointment of the claimant; the said appointment being valid and subsisting.
10. The sum of Two Million Naira (N2,000,000.00) as cost of this action.
It is the claimant case that she is a legal practitioner and was employed upon her application to the 1st defendant that after satisfying itself of her qualification/experience and the satisfaction of all due processes required by the relevant/applicable law and/or Regulations, offered her employment as Chief Magistrate Grade II GL. 15 Step 1. She accepted the offer and submitted herself to medical examination. The 1st defendant then issued an appointment letter to her and she was posted to a Magisterial district after completing the in- house training for new Magistrates. She continued that she has since discharged the duties and functions of her office to the admiration of the defendants and the defendants therefore confirmed her appointment. The claimant avers further that upon her resumption of duty as a Chief Magistrate II in the employment of the defendants, the defendant had paid monthly salaries and allowances to her till September 2017 (apart from unpaid arrears of salaries for October, November, December 2016 and January 2017). She averred that on the 5th of September, 2017, she applied for and received approval for maternity leave after the birth of her son on the 3rd of September, 2017. That while on maternity leave she was called by the 1st defendant and given a letter dated 14th September, 2017 wherein the 1st defendant on the instructions/directives of the 2nd defendant purportedly suspended her from the judicial service. She protested her suspension vide a letter dated 25th of September, 2017 and the defendants failed to respond to same. That the 1st defendant on the instructions of the 2nd defendant proceeded to advertise for the post of magistrates including her positions.
She further avers that before her purported suspension, the defendants were owing her salaries and allowances for October, November, December 2016 and January 2017 as well as outfit allowance and imprest. After the suspension the defendant refused to pay her salaries from September, 2017 till date and held on to allowances which had accrued to her before and after the said month. She wants her prayers to be granted by the Court and order for her recall back to office.
The defendants filed their statement of defence on the 14th day of December, 2017. The defendants traverse that the 1st defendant supervises and approves all methods of selection for appointment to the positions of the Chief Registrar and Deputy Chief Registrar of the High Court, Magistrates, Presidents and members of the customary Courts, and all other members of the staff of the Ondo State Judicial Service. The defendants averred that where there is a vacancy for any of the positions mentioned above, the 1st defendant at its plenary decides whether or not a vacancy shall be advertised and where the vacancy is advertised, the 1st defendant shall direct that a shortlist be prepared and submitted to it for consideration. The 1st defendant also accords the claims of meritorious candidates to fill vacancies for the advertised positions. That in a bid to sanitize the irregular appointments of some Magistrates and other senior officers in the State Judicial Service, some officers including the claimant were suspended to enable the 1st defendant review and regularize their appointment. They pleaded that after a thorough review of the claimant’s appointment, it was discovered that her appointment as Chief Magistrate in the Ondo State Judiciary was not done in accordance with the laid down procedure in the Ondo State Judicial Service Commission Law and Regulations. The defendants denied considering any application or credentials or qualifications or experience of the claimant and did not offer her an appointment as a Chief Magistrate. They averred that the so called offer of appointment to a Pensionable Establishment which is dated 5th November, 2013, appointing the claimant as a Chief Magistrate Grade II was offered by one Ademola Enikuomehin, Esq without the knowledge, consent and authority of the 1st defendant and that despite the claimant irregular appointment and in total disregard for her supposed employer, the claimant stayed away from her duties without any explanation or excuse only to resume in January, 2014. The defendants went on that the payment of monthly salaries and allowances to the claimant is illegal, unlawful and recoverable from the claimant as her appointment and right to those facilities were not procured by due process of the law. And the publication of the claimant’s purported appointment in a gazette is a mere notice to the general public and does not translate to a regular or lawful appointment. That contrary to the pleading of the claimant the application for maternity leave was supposed to be made twelve (12) weeks before delivery as required by law, but was made after the delivery of her baby contrary to the procedure, thereby denying the position of the claimant that she sought and obtained approval from the 1st defendant, rather the claimant proceeded on self-approved maternity leave as they are not aware of the leave. They stated that in a letter dated 8th November, 2017, the 1st defendant invited the claimant for an interview but she refused to attend and went ahead to file this suit on 15th November, 2017. That the purported arrears of monthly salaries, allowances and other entitlements stated therein is illegal, unlawful and recoverable from the claimant as her appointment and right to these facilities were not procured by due process of the law.
The defendants averred that all appointments of judicial staff including that of Magistrates is governed and regulated by the Ondo State Judicial Service Law and Regulations and the Ondo State Civil Service Rules and Regulations.
By way of counter claim, the defendants claim against the claimant the following:
1. A DECLARATION that the letter titled “Offer of Appointment to a Pensionable Establishment” dated 5th November, 2013, addressed to the claimant as a Chief Magistrate Grade II by one Ademola Enikuomehin, Esq, without the knowledge, consent, authority and directive of the 1st defendant/counter-claimant is illegal, unlawful, null and void and of no effect whatsoever.
2. A DECLARATION that the Letter of Appointment dated 5th November, 2013, address to the claimant as a Chief Magistrate Grade II with effect from 5th November, 2013 by one Ademola Enikuomehin, Esq., without the knowledge, consent, authority and directive of the 1st defendant/counter-claimant is illegal, unlawful, null and void and of no effect whatsoever.
3. A DECLARATION that all payments of monthly salaries, allowances and imprests to the claimant from November, 2013 to November 2017 is illegal, unlawful and recoverable from the claimant as her appointment and right to these facilities were not procured by due process of the law.
4. AN ORDER directing/mandating the claimant to refund and pay to the 1st Defendant/counter-claimant all monthly salaries, allowances and imprests unlawfully received by the claimant from November, 2013 to November, 2017 as her appointment and right to these facilities was not procured by due process of the law.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the claimant from acting on the letter of appointment dated 5th November, 2013, addressed to the claimant as a Chief Magistrate Grade II with effect from 5th November, 2013 by one Ademola Enikuomehin, Esq., same having been written without the knowledge, consent, authority and directive of the 1st defendant/counter-claimant.
The Claimant during trial testified for herself as CW, she adopted her statement on oath as her evidence in this case, she sought to tender some documents which were admitted in evidence by the Court and marked Exhibits WD-WD19. The defendants during trial testified through one Williams Adebisi Daomi, he adopted his sworn deposition as his evidence in this case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibit WA.
As it is customary to do at the close of trial, the defendant filed their final written address on the 19th day of June, 2018 wherein the defendants as counter-claimants raised the following issues for determination to wit:
1. Whether, considering the totality of the evidence placed before this Honourable Court, the claimant has not proved her claims?
2. Whether the defendants have successfully proved their Counterclaim against the claimant?
On issue one, the learned defence counsel submitted that considering the pleadings and the evidence placed before the Court, the claimant has failed woefully to establish her claim to entitle her to a favorable judgment of the Court. He further submitted that it is a well-established principle of law that in every civil case, the primary duty lies on the plaintiff or the claimant to prove his/her claim and unless he/she does this he/she cannot succeed. He cited Sections 131, 132, 134 and 136 of the Evidence Act, 2011 and the cases of Nkwo v Iboe [1998] 7 (NWLR) (Pt. 558) 354 at 363; C.D.C. (Nig.)Ltd v SCOA (Nig.) Ltd [2007] 6 NWLR (Pt. 1030) 300. Counsel argued that the claimant has failed to prove that her purported appointment as Chief Magistrate Grade II is in accordance with the relevant laws or enactment for that purpose. Counsel went on to submit that in the instant case, the claimant’s suspension was not on the basis of any misconduct but it was to allow the 1st defendant look into or investigate the circumstances surrounding the claimant’s appointment as Chief Magistrate and nothing more and they are empowered to so do vide Items 5 & 6 of Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and also Section 4 (a) of the Ondo State Judicial Service Commission Law, 2006. Continuing he posited that it was discovered that claimant’s appointment as Chief Magistrate in the Ondo State Judiciary was not done in accordance with the laid down procedure in the Ondo State Judicial Service Commission Law and Regulations Cap. 70, Vol. 2, Laws of the Ondo State of Nigeria, 2006. That the 1st defendant never by Section 13 of the JSC Regulations advertised for any vacancy for Chief Magistrates and never sat at any plenary to consider the claimant to be appointed as a Chief Magistrate and there is nothing on record to show that it did also the claimant merely stated under cross examination that she was informed by an unknown friend and the retired Chief Judge of Ondo State that there was a vacancy in the magistracy. He submitted that the above piece of evidence is clearly hearsay evidence and is trite law that hearsay evidence is not admissible to prove a fact of a matter. In Buhari v Obasanjo [2005] 2 NWLR (Pt. 910) 241 at 435 para C, the Court of Appeal held that
“The evidence relied upon is inadmissible being hearsay and need not be controverted before it is expunged from the record”
The defendant’s counsel submitted that this evidence of the claimant is not substantiated and therefore not credible and urged the Court to expunge it from the records. He relied on the cases of Kasa v The State [1994] 5 NWLR (Pt. 344); Arogundare v The State [2009] 1-2 SC 6; Ishola v Ishola [2015] All FWLR (Pt. 779) 1117.
Learned counsel submitted further that from the opening paragraphs of Exhibits WD1 and WD2, it was made clear that the Secretary of the 1st defendant ultra vires his powers appointed the claimant and not the 1st defendant. In his evidence, DW1 testified that the 1st defendant never invited the claimant for any oral or written interview before she was purportedly appointed as a Chief Magistrate. And it is in evidence that the 1st defendant did not at any of her plenary sessions deliberate on the appointment of the claimant as Chief Magistrate on or before the 5th of November, 2013 or adopt or ratify any special consideration or any special selection method for the claimant to fill any vacancy for Chief Magistrate. Learned Counsel also submitted that the claimant proceeded on maternity leave without following the due process of the law and that her suspension is regular and unlawful and is not a violation of her fundamental rights to Human Dignity and Freedom from Discrimination as guaranteed by Sections 34 and 32[sic] of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2, 5, 14 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, CAP. A9, Laws of the Federation of Nigeria, 2004 and the International Labour Organization’s Convention No. 111 of 1958 on discrimination.
With regards to claimant’s claims in the sum of One Million, Five Hundred and Fifteen Thousand, Five Hundred and Twenty Three Naira, Sixty Five Kobo (N1,515,523.65) only being her entitlements for the period of suspension. The defendants’ counsel submitted that by the provision of Regulation 49 (2) of the Ondo State Civil Service Commission Regulations Cap. 31, Vol. 1, Laws of Ondo State of Nigeria, 2006 that a Public Officer who is under suspension shall not, subject to the provision of Regulation 51 receive any salary during the period of suspension. He further submitted that non-payment of salaries and allowances for October, November, December, 2016 and January, 2017 is not peculiar to the claimant alone but to all workers. It is further submitted that the relief for an award for aggravated and exemplary damages against the defendants is highly punitive and goes to show the claimant’s disregard for constituted authority. He submitted that the claimant has failed to prove all her claims as stated in her complaint. He therefore urged the court to dismiss in its entirety this suit as lacking in merit.
On issue two the defendants’ counsel submitted that the issue in the defendants’ counter-claim is that the offer of appointment to a pensionable establishment and the letter of appointment dated 5th November, 2013 addressed to the claimant as a Chief Magistrate Grade II by one Ademola Enikuomehin, Esq., without the knowledge, consent, authority and directive of the 1st defendant/counterclaimant is illegal, unlawful, null and void and of no effect whatsoever. He also submitted that the law is trite and well settled that a party will not be allowed to take benefit from an illegality. He cited the cases of Agbareh v Mimra [2008] 2 NWLR (Pt. 1071) 378 at 438-439; B.M.N.L v Ola Ilemobola Ltd [2007] All FWLR (Pt. 379) 1340 at 1380 paras D-E. Continuing, he posited that the claimant is not entitled to the salaries, allowances, imprests and other emoluments attached to the office as Chief Magistrate Grade II having being appointed as such without the due process of the law. Furthermore, that the payment of monthly salaries and allowances to the claimant as Chief Magistrate Grade II by virtue of Exhibits WD1 and WD2 is illegal, unlawful and recoverable from the claimant as her appointment and right to these facilities were not procured by due process of the law.
The claimant’s counsel filed its final written address on the 27th day of June, 2018 wherein he formulated the following issues for determination to wit:
1. Whether the claimant has established the existence of an employer/employee relationship between the claimant and the defendants,
2. Whether the employment of the claimant by the 1st defendant enjoys statutory flavour.
3. Whether the letter of suspension dated 14th September, 2017 given to the claimant by the defendants is not unlawful, illegal and irregular.
4. Whether from the circumstances of this case and the exhibits tendered, the defendants have established their counter-claim required by law.
On issue one, the counsel submitted that the existence of employment between the claimant and the defendant is to be established by the documents of employment issued by the 1st defendant to the claimant. The claimant pleaded and tendered in evidence, the following documents to establish her appointment as Chief Magistrates Grade II by the 1st defendant; her letters of appointment and confirmation as well as the official gazette, all admitted as exhibits WD1, WD2 and WD9.
Learned claimant’s counsel stated that the claimant having pleaded all these documents, the defendants are by Section 169 of the Evidence Act 2011, estopped from denying the employer/employee relationship between the claimant and the 1st defendant as relied on the cases of Udo V. Useji [1990]5 NWLR (Pt. 151) 488; Adone & Ors. V. Fiebudu & Ors [2001] 7 S. C. (pt. 111) 22 (cited in Bamgbose: Digest of Judgment of the Supreme Court of Nigeria Vol. 1 & 2 page 116.
With regards to issue two, learned counsel submitted that an employment enjoys statutory flavor when two main ingredients co-exist viz: that the employer is a body set up by statute and the statute must make express provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. He cited the cases of P.H.C.N. Plc V. Offoelo [2013] All FWLR (PT. 664) 1 at 30; Bamisile V. National Judicial Council [2013] All FWLR (Pt. 678)911 at 949 and Federal Medical Center, Ido-Ekiti & 2 Ors V. Kolawole [2012] All FWLR (pt. 653) 1999 at 2011. He also submitted that the claimant by her paragraph 48 of the statement of fact and evidence given in same of the statement on oath deposed to on 15th November, 2017 stated that her employment/appointment as Chief Magistrate Grade II is governed and regulated by the Magistrate Court Law of Ondo State, Judicial Service Commission Law of Ondo State and the Ondo State Judicial Service Commission Regulations. This is not only an agreement that the claimant’s employment enjoys statutory flavor but a further affirmation of existence of employer/employee relationship between the claimant and the defendants. Counsel urged the Court to so hold.
Next is issue three, It is the argument of learned claimant’s counsel that the defendants failed to tender the representation of the claimant as alleged by the defence witness and non-invitation of the claimant to the committee is against the proviso to Section 47 (iii) of the Judicial Services Regulations.
He argued that the claimant was never aware of nor had knowledge of the committee nor was she given an opportunity to state her defence before the committee or given an opportunity to state her defence in the plenary session of the 1st defendant which purported ratified the report of the committee and her suspension. The alleged suspension of the claimant was done by the defendants during the period of the claimant’s maternity leave and this is illegal. By the various statutes governing the claimant’s employment, disciplinary measure cannot be applied to a woman officer under maternity leave, Section 32 of the Judicial Service Commission Regulations provides:
“ any disciplinary proceedings against a female officer which would otherwise have taken during the period of her maternity leave shall be postponed until her maternity leave has expired”.
In law, the counsel reiterated that where the suspension of an employee is unlawful as it fails to be in line with the statute governing the employment (as in the instant case) the court will reinstate the employee and order the payment of the salaries and allowances to the employee during the period of the unlawful suspension. He relied on the cases of Mariam V. University of Ilorin Teaching Hospital Management Board (unreported) judgment in Suit No: NICN/LA/359/2012 delivered on June, 19, 2013 (referred to in Law and Practice of the National Industrial Court by Bamidele Aturu, Hebron Publishing Co. Ltd. [2013] page 297 and urged the Court to so hold.
Reacting to the defendants counterclaim, learned counsel contended that a counter-claim for all intent and purposes is a separate and independent action and it is joined to the main suit only for convenience and speed. He cited the case of Alhaji Haido & Anr. V. Usman [2004] All FWLR (pt. 201) 1765 at 1781. And the counter-claim is subject to the rules of pleading and proof, he also cited in support the case of Kalejaiye & Ors V. Ogundena [2002] All FWLR (pt. 85) 287 at 311.
It is counsel’s contention that defendants’ counterclaim seeks to declare the letter entitled Offer of Appointment to Pensionable Establishment” as illegal, unlawful, null and void as same was issued, according to the counter-claimant “by one Ademola Enikuomehin, Esq, without the knowledge, consent, authority and directive of the 1st defendant/counterclaimant. He also pointed out that the witness of the 1st defendant also agreed that both Chief S. A. Akinrinsola and Ademola Enikuomehin are still employees of the 1st defendant. The action of Ademola Enikuomehin in signing Exhibit WD1 is an official act in line with his duty to signify all decisions of the defendant to the affected person(s). Also that the defendants’ failure to call these witnesses and adduce evidence in this regard, should be construed against the defendants. He cited Section 167 (d) of the Evidence Act 2011. Continuing, he submitted that upon the assumption of office by the claimant she has been posted to several magisterial districts by the defendants, and severally sent the claimant for training both in-house and outside training, assigned administrative duties, and including the claimant’s name in the protocol list of magistrates as shown in Exhibit WD11 (2015/2016 legal year brochure). All these activities spanned from January 2014 up to September, 2017 when the defendants unlawfully and illegally suspended the claimant and none of the defendants in all these years ever raised that the letter of offer of appointment, letter of appointment, the letter of confirmation of appointment of the claimant were address to the claimant as a Chief Magistrate Grade II by one Ademola Enikuomehin Esq. without the knowledge, consent, authority and directive of the 1st defendant/counter-claimant.” There is no evidence adduced by the defendants to show that any of these officers had ever been queried or punished by the defendants for signing exhibits WD1 and WD2 without the consent, authority, approval and directive of the 1st defendant. In support he cited the cases of Anyawu V. Uzowuaka [2009] All FWLR (pt. 499)411 at 439 paras. A-D; Azeudu V. Obiawu [1986] 2 NWLR (pt. 21)208; Abubakar V. Yar’Adua [2009] All FWLR (PT. 457)1 AT 129-130 PARAS.H-B and urged the Court to dismiss this relief.
In response to reliefs two, three and four of the defendants/counter-claim, counsel posited that it is most preposterous and unconscionable for the counter-claimant to contend that the claimant’s appointment and right to salaries, allowance and imprest were not procured by due process of the law knowing fully well that it is the duty of the defendants to follow the due process and the defendants cannot rely on their wrong doing to seek to fault the procedure adopted by them and that it is unfair labour practice for an employer to seek to recover salaries, allowances, imprest or entitlements from an employee which were duly and lawfully earned consequent upon the appointment of an employee and services duly rendered by the employee.
Counsel further submits that relief five of the counter claim of the defendants is an ancillary relief of injunction, the failure or success depends on the success of relief 1 and 2 of the counter claim. He therefore urged the Court to dismiss the counter claims of the defendants/counter-claimant.
The defendants filed a reply on point of law to the claimant’s written submission on the 3rd day of July, 2018 in response to the claimant’s submission and counsel argued that exhibits WD1, WD2 and WD9 have established an employer/employee relationship between the claimant and the 1st defendant and the said exhibits are official acts by virtue of Section 168(1) of the Evidence Act 2011, and that there is a presumption of regularity in that regard. The defendants’ counsel submitted that the above contention by the claimant’s counsel is grossly misconceived. She submitted that Section 168 (1) of the Evidence Act, 2011 is applicable only if it is shown by the claimant that the act was done in a manner substantially regular, then it would be presumed that the requisites for its validity were complied with. Reliance was placed on the Supreme Court’s decision in the case of Amako v The State (1995) 6 NWLR (Pt.399)11 where the Supreme Court held that although this presumption is sometimes conclusive, it is generally rebuttable and that the burden of rebutting it is on the party who asserts otherwise. In other words, the claimant has not proved that her appointment was substantially regular and that formal requisites as laid down in the relevant Law and Regulations were complied with. He stated that the defendants on the other hand have in their evidence before this Court shown exhaustively that Exhibits WD1 and WE2 were issued irregularly having not followed the procedure as laid down in the relevant Laws and Regulations governing the appointments of magistrates into the judicial service of Ondo State. He further submitted as regards Exhibit WD9 that notification in the gazette of an otherwise invalid appointment would not cure the legal defect in the appointment. He cited the case of Gbafe v Gbafe [1995] 6 NWLR (Pt. 455)417 at 434 SC. That the publication of a Government Notice in an official gazette is only the Government’s way of bringing its activities to the attention of the public. He relied on the case of Jegede v. Citicon Nigeria LTD [2001]3 WRN 1 at 28.
On the issue of estoppel by conduct raised by the claimant’s counsel on behalf of the claimant, submitted that the principle of estoppel by conduct cannot rightly be founded upon having regard to all the facts of this case. He cited the case of Nsirim v Nsirim [2002] 2 SCNJ 46 at 60 and argued that the claimant was suspended due to perceived irregularities in her appointment as magistrate. The suspension was to enable the defendants investigate the propriety or otherwise of these irregularities, but the claimant protested and was invited to attend an interview but she failed to attend. It was further submitted that if the claimant had attended the said interview the issue would have been resolved.
On the issue of waiver, it is submitted that a waiver is the intentional and voluntary surrender of a private right and not of a public right which is intended for public or administrative affairs. The waiver must be in respect of a private right for the benefit of a particular party in contradistinction to a public right or statutory function. See the case of Fasade v Babalola [2003]4 SCNJ 287. Falowo Esq further reiterated that evidence has been established that the procedure for the appointment of the claimant as chief magistrate is irregular and therefore invalid being in contravention of the provisions of relevant statutes governing such an appointment. He therefore submitted that appointment of magistrates is a public function derived from statute and the statutory procedure for such appointment cannot be waived as it is not in respect of the private rights of the defendants but of a public right intended for public affairs and administration.
Based on the above, the defendants’ counsel urged the Court to discountenance the submission of the claimant’s counsel and dismiss the suit and grant the defendant’s counter-claim.
I have carefully gone through the processes filed by parties in this suit, the written submission and arguments canvassed by counsel on both side of the divide in support of their respective case before this Court, it is my considered view that the issues that require determination of this Court to arrive at a just decision are;
1. Whether or not the appointment of the Claimant on the 5th of November, 2013 is valid.
2. Whether or not the suspension of the claimant is lawful.
3. Whether or not the claimant is entitled to her claims.
4. Whether or not the defendants counterclaimants are entitled to their claims.
On issue one; parties are on the same page that all appointments of judicial staff including Magistrates are regulated vide; the Ondo State Judicial Service Law and Regulations and the Ondo State Civil Service Rules and Regulations. This automatically vests in the claimant a higher statutory legal status than that of the master servant relationship and in effect, all disciplinary actions must of course comply with the statutory provisions stated supra. See the case of Okocha v. CSC Edo State [2004] 3 NWLR (Pt. 861) 58. The claimant’s relief 1, is seeking the Court’s declaration that her appointment by the first 1st defendant to the position of Chief Magistrate grade 11 vide a letter of appointment dated 5th of November, 2013 is valid, legal and subsisting. The claimant by her pleadings and testimony on record had stated that she was offered an appointment and was appointed by the 1st defendant vide exhibit WD1 and WD2 on the 5th of November, 2013, that the letters were signed by the Secretary of the 1st defendant. She equally averred that her appointment was confirmed by the 1st defendant, was published in the official gazette and she resumed duty as Chief Magistrate at the 1st defendant and therefore her appointment as a Chief Magistrate 11 should be declared valid by this Court. Obaseki JSC (of blessed memory) in Bello v. Eweka [1981] 1SC, 101 @ 102 -103, succinctly put the postion of the law regarding declaration thus-
It is true as was contended before us by the appellant counsel that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of the claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA, 336 @ 337….
The Rt Hon Lord Denning MR, in his book “The due process of Law” Oxford University Press 1980, at page 60 beautifully captured the duty/conduct expected of a Judge, in this words-
… a Judge is not a mere umpire to answer the question “How’s that?” his object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honorable and necessary role.
Having stated the duty of the judex as well as the advocate as espoused by the above two great jurists, what is then the reaction of the defendants to the claimant’s relief 1, vis a vis the provision of the law. It is the contention of the defendants’ by paragraphs 18 and 22 of their joint statement of defence that despite the claimant’s irregular appointment she stayed away from her duties after being appointed on the 5th of November, 2013 and resumed in January, 2014, this was because she was still in the employment of the First Bank Of Nigeria Plc[hereafter called FBN] as at the 5th of November, 2013, and also that she received her November, 2013 salary from FBN the same time she was already an employee of the 1st defendant. This was confirmed by the claimant at paragraph 14 of her statement of facts that she resumed duty as a Chief Magistrate at the 1st defendant’s in January 2014. She corroborated this under cross examination by stating that she resigned her appointment with FBN on the 31st of December, 2013, when she was already an employee of the 1st defendant. She equally admitted that she received her November, 2013 salary from the FBN and this is evinced by exhibit WD8, i.e. her payslip from FBN. It is the law of common that admitted facts need no further proof. A pertinent question that needs to be answered here is, the proprietary or otherwise of her appointment with the 1st defendant whilst still in the employ of FBN? This is in view of the fact as revealed by claimant’s testimony that she resigned her appointment with FBN on the 31st of December 2013, almost 2 months after her appointment by the 1st defendant as a Chief Magistrate 11. It is trite and this accords with statutory provisions that an employee of government should not be engaged in dual employment on full time basis. This is a Constitutional provision entrenched in Part 11 of the 5th Schedule to the 1999 Constitution as amended which listed Public officers for the purpose of the code of conduct to include Judicial officers and all staff of Court of law in this clime. By Section 6(b) of the Code of Conduct Bureau and Tribunal Act, Cap. C15, LFN, 2007, a Public Officer shall not except where he is not employed on full time basis engaged or participate in the management or running of any business, profession or trade. I find from the Constitutional provisions captured supra vis a vis the testimony of the claimant on record corroborated by exhibit WD10, that she resigned from FBN on the 31st of December, 2013, whilst already a Chief Magistrate 11 at the Ondo State Judiciary, that claimant’s employment is fundamentally flawed ab initio, because Constitutionally, a person cannot be engaged in double employment. This in effect makes claimant’s appointment as Chief Magistrate 11 on the 5th of November, 2013, at the time she was in the employment of FBN null and void, this is because by the provisions of the Constitution ditto the Code of Conduct Act supra, claimant has no employment with the 1st defendant for which she could claim validity.
It is the claimant’s repeated argument that her appointment letters were signed by One Ademola Enikuomehin, hence her appointment is legal, valid and that all procedure leading to her appointment was followed, hence it is subsisting. The defendants on the other hand pleaded that after a thorough review of the claimant’s appointment, it was discovered that her appointment as Chief Magistrate in the Ondo State Judiciary was not done in accordance with the laid down procedure in the Ondo State Judicial Service Commission Law and Regulations Cap. 70, Vol. 2, Laws of Ondo State of Nigeria, 2006. They averred further that the purported offer of appointment to a Pensionable Establishment which is dated 5th November, 2013, appointing the claimant as a Chief Magistrate Grade II was offered by one Ademola Enikuomehin, Esq without the knowledge, consent and authority of the 1st defendant, they referred to paragraph 1 of the letter of appointment wherein the said Enikuomehin wrote “… I have the honour to offer you appointment as Chief Magistrate Grade 11 …”. Now, an indepth examination of Part IV of the Ondo State Judicial Service Commission Law and Regulations Cap. 70, Vol. 2, Laws of Ondo State of Nigeria, 2006 (hereafter called ‘Regulation’) particularly at Sections 12, 13 and 16 provides for the Appointment of Judicial Officers. For ease of reference I reproduce same as follows.
“12; the Commission shall exercise supervision over and approve all methods of selection for appointment to the offices to which this part of these Regulations applies including the procedure of any Selection Board that may be constituted.
13 (1); where vacancies are not to be filled solely by persons already in the service of the Judiciary, the public shall, unless the Commission otherwise directs, be informed by advertisement of the existence of such vacancies in time to enable candidates to make their applications.
(2)The Commission shall accord to the claims of meritorious officers in the Judiciary of the State to fill vacancies precedence over any comparable claims of the State unless the Commission otherwise directs in any particular case
16. The following provisions shall apply to the filling of a vacancy in an office to which this part of these Regulations applies;
a. As soon as it is known that a vacancy will occur or has occurred in the relevant office, the Chief Registrar shall on the direction of the Chief Judge communicate to the Commission in writing proposals regarding the filing of the vacancy. Such proposals shall indicate the methods to be employed in filling the vacancy and whether or not the vacancy should be advertised and if so, the recommended means of advertisement if other than publication in the Gazette of the various Governments of the Federation of Nigeria. Where necessary the Chief Registrar shall submit with proposals a draft advertisement. Where it is proposed that the Vacancy should be filled by promotion within the judiciary or by transfer or secondment within the Judiciary, the recommendation to that effect in accordance with these Regulations in respect of a named person may be included in the proposal or made separately;
b. The Commission shall decide whether or not a vacancy shall be advertised and if the Commission decides that the vacancy shall be advertised, it shall arrange for the publication of the advertisement;
c. where a vacancy is advertised, the Commission may direct that a short list be prepared and submitted to the Commission for consideration.
Now, a common cord that runs through the above provision is that the 1st defendant is vested with the power to appoint Judicial officers by following the above highlighted procedure. That upon vacancy (ies) in position(s) and where such position is not to be filled by persons already in the service of the Judiciary, it shall be advertised to the public by the Chief Registrar on the recommendation of the Chief Judge in the Gazette of the various Governments of the Federation of Nigeria to enable candidates apply. The defendants denied making any advertisement on the position which allegedly brought the claimant into the service and the claimant under Cross examination stated that she got a wind of the vacancy from a friend and also that the retired Chief Judge, Hon. Justice Olasehinde, confirmed same to her. The law is notorious that he who asserts must prove, the burden of proving that claimant’s employment is regular and therefore valid lies on her. The claimant in her attempt to prove the fact that her employment was done regularly tendered her appointment letters and all the documents stated supra in this judgment. As reiterated earlier the defendants in their pleadings averred that after a thorough review of the claimant’s appointment, it was discovered that her appointment as Chief Magistrate in the Ondo State Judiciary was not done in accordance with the laid down procedure stipulated in the Ondo State Judicial Service Commission Law and Regulations supra. In the instant case, the defendants have vide paragraphs14 and 15 of their statement of defence pleaded that the claimant’s appointment to the Position of Chief Magistrate Grade II was done by one Ademola Enikuomehin Esq. without the knowledge, consent and authority of the 1st defendant. They also argued that claimant’s appointment was never ratified at any of the plenary of the 1st defendant. To the defendants, the argument of the claimant that, having sat as a Magistrate, or her name published in the state gazette, salaries paid to her and other actions of hers cannot cure the legal defect in her appointment. Now an appropriate question to ask is has the claimant proven on a balance of probability that her appointment is regular, ratified and valid. I find no evidence documentary to substantiate the claimant’s assertion that her appointment was ratified at the plenary of the 1st defendant. This is because usually an appointment ratified by an appropriate body is evinced by a letter of ratification of appointment issued to the staff concerned. It is in the light of all the above reasoning that I find and hold that claimant have failed to prove that her appointment is legal and valid, and as held supra she has breached a Constitutional and fundamental provision of the law, consequent upon which claimant’s relief 1 is discountenanced.
Assuming, but I am not conceding that claimant’s appointment with the 1st defendant was proper for which she would want the Court to declare as valid. I must state unequivocally here and now that, this Court is not imbued with the power to verify/regularize the process of an employee’s employment, this power is vested statutorily in the 1st defendant, i.e. the body empowered by statute to verify and regularize the claimant’s employment. It is defendants’ pleadings that the claimant subsequent upon her suspension, was by Exhibit WD7 a letter dated November, 8th 2017, invited to attend an interview before the Judicial Service Commission and also she was informed to come along with her academic credentials and letter of referral from her last employer. The claimant in response to this assertion admitted that she received the defendants’ notification of interview but stated that she was still on maternity leave and thus could not attend same. She also stated that for fear of imminent harassment from the defendants she had to run to Court to seek redress. What is the propriety of the claimant’s act of not complying with the invitation of the defendants to an interview dated 8th of November, 2017? By Sections 10 and 11 of the JSC regulations supra, the 1st defendant has an unfettered power to invite any of its officers to attend and give evidence before it concerning any matter which it is required to consider in the exercise of its functions and may require the production of any official documents relating to any such matter and by Section 11 of the same regulation, the officer in question on being so required shall attend before the commission and shall ensure that all relevant documents and papers are made available to the commission. It is therefore obvious from these provisions that the 1st defendant has the statutory powers to have invited the claimant for an interview as they did vide exhibit WD7. Now, what is the implication of claimant’s failure to attend the interview or present any documents for the commission’s consideration? The Ondo State CSR under Rule 04102, states that a misconduct consists of a wilful act or omission which prejudices the proper administration of the department of government for which the 1st defendant is one, in which an officer as in the case of the claimant is employed or prejudices the order and discipline of the civil service or which brings the service into disrepute, (VI) disobedience of a lawful order. I find it apparent from this that claimant’s action for failing to appear before the commission is a misconduct as enshrined in Rule 04102 of Ondo State CSR. DW on record, one William Adebisi Daomi stated by paragraphs 37 and 38 of his sworn deposition and confirmed under cross examination that claimant was invited for the interview by the 1st defendant with two others and while the two other Magistrates complied with the directive of their employer, i.e. the 1st defendant in this case, the claimant failed or refused to obey. He went on to state that the two Magistrates that responded to the invitation of the 1st defendant verified their documents they presented and allowed them to continue with their job, given credence to the fact that claimant would have equally been recalled. The learned claimant’s counsel, Udofot Esq, requested on the 8th of March 2018, that the Court should direct that the two Magistrates referred to by DW appear before the Court to evince that they have actually been recalled by the 1st defendant. The learned defence counsel Falowo Esq did not object to this request, hence the Court ordered the 1st defendant to produce the two Magistrates namely, HW Taiwo Lebi and HW Manuwa in Court on the 23rd of April, 2018 being the date adjourned for continuation of hearing. In compliance with the Order of Court made on 8th March, 2018, the defendants produced in Court both Magistrates Lebi and Manuwa who confirmed in the open Court that they have been recalled and are still in the employ of the 1st defendant. The reason the claimant gave for her failure to obey the call made by her employer was because she was afraid of harassment by the 1st defendant, also that she did not know whether the interview was for her promotion or fresh appointment by the 1st defendant, hence she rushed to Court. Whatever, the case is she did not border to attend to the 1st defendant’s invitation. By the authority of C.C.B (Nig ltd) v. Nwankwo [1993] 4 NWLR (PT.286) 159 CA, an act which amounts to misconduct is generally an act of wilful disobedience to lawful and reasonable orders of the employer by the employee. The apex Court in Nwobosi v. ACB [1995] 6NWLR (PT.404) 658SC, the Court placing reliance and adopting the position of Obaseki JSC ( of blessed memory), Iguh JSC at pages 49-50 paragraph G-C of this judgment restated the position of the law on the legal effect of disobedience by an employee of his employers order thus-
The legal effect of disobedience in a master and servant relationship was considered by this court and Obaseki, J.S.C., put the matter as follows:- “When a servant grows too big to obey his master, the honourable cause open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience. Both common law and statute law brook no disobedience of lawful order from any servant, high or low, big or small. Such conduct normally and usually attracts the penalty of summary dismissal. Disobedience ranks as one of the worst form of conduct in any establishment.” I must, with very great respect, fully endorse the above view.
I have no hesitation in placing reliance on the statutory provisions as well as the case law authorities captured above with regards to the failure of the claimant to obey her employer the 1st defendant’s invitation, in finding that the claimant’s action constituted a misconduct in breach of Rule 04102 of the Ondo State CSR. This is so because the procedure for the verification of claimant’s appointment by the 1st defendant was truncated, she equally failed in her duty to the 1st defendant by her failure to appear before the commission with her credentials. Instead she rushed to this Court because according to her she does not want to be harassed by the 1st defendant. She however, failed to canvass evidence on record in prove of her claim of an imminent suspicion of harassment by the 1st defendant. That to me is a mere speculation and the law is certain that Courts are not given to conjecture or speculations but facts and law. By the case law authority of Orisa v. State [2018] LPER-43896SC, the apex Court reiterated the position of the law as follows-
It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and Laws. They decide issues on facts established before them and on laws. They must avoid speculation. See Oguonzee vs. State (1998) 5 NWLR (Pt.551) 521; Ikenta Best (Nig) Ltd v. A.G. Rivers State (2008) LPELR 1476; Galadima v. The State (2012) LPELR 15530
See also the case of Agip (Nig.) Ltd. v. Agip Petroli Int’l [2010] 5 NWLR; where the Supreme Court again held that Courts of law do not decide a case on conjecture or speculation but on facts and laws presented before them. It is in the light of this that I find that the filing of this process by the claimant is premature. She ought to have responded to the invite of her employer the 1st defendant and obey its instruction before seeking further redress on the validity or otherwise of her appointment. As it is the law which has gained notoriety and accords with sound reasoning that he who comes to equity must come with clean hands. I must say, that the hands of the claimant in this regard is not clean, this is in view of her disobedience to constituted authority. She does not therefore, deserve the exercise of the Court’s discretion in making a declaration as to the validity of her appointment by the 1st defendant.
Regarding issue two, it is the claimant’s contention that the letter of her suspension dated 14th September, 2017 issued by the 1st defendant, on the instructions/directives of the 2nd defendant, when she was on maternity leave is illegal, unlawful, null and void and constitutes a violation of her fundamental rights to human dignity and freedom from discrimination as guaranteed by Sections 34 and 32[SIC] of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Articles 2, 5, 14 and 19 of the African Charter on Human And People’s Rights (Ratification And Enforcement) Act, CAP. A9, Laws of the Federation, 2004 and the International Labour Organization’s Convention No. 111 of 1958 on discrimination. The defendants on the other hand averred that in a bid to sanitize the irregular appointments of some Magistrates and other senior officers in the State Judicial Service, some officers including the claimant were suspended to enable the 1st defendant review and regularize their appointment. The position of the law on suspension is that an employer has the right to discipline an erring staff by issuing him suspension letter in the interest of the organization or institution, as it is also the law that it is a disruption of an ordinary employer’s business to fetter an employer with an injunction not to discipline its servant. The Apex Court per Adekeye J.S.C (As she then was) in the case of Longe vs. F.B.N. Plc supra, at 60 paragraph C – D held that:-
Suspension is usually a prelude to dismissal/termination from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee but there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.
See also the case of NEPA v. Olagunju [2005] 3 NWLR (Pt 913) 602. From the above stated suspension is neither a termination of the contract nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other as the employee is deemed to be in the continuous employment of the employer. While an employer has the rights to suspend an employee for the purpose of investigation or disciplinary action, however in doing that, the employer must comply with any existing regulation governing such procedure. Such a power can only be the creation of either a statute governing the contract or of an express term in the contract itself. See the cases of Boston Sea Fishing Co v Ansell [1886-90] All ER 65 at 67; University of Calabar v. Esiaga [1999] 4 NWLR (Pt 502) 719 AT 739; Ayewa v. University of Jos [2000] 6 NWLR (Part 659)142; Mrs Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & Anor, supra; Binos Dauda Yaroe v. The Nigerian Stock Exchange [2014] 46 NLLR (Pt. 147) 45. From the above, it is obvious that the defendants have unfettered right to discipline the claimant and it includes to suspend her. The law is equally settled that an employer’s right to suspend its employee is a right that inures in the interest of the organization or institution. I need to state here that a party alleging that his suspension is unlawful must show that his suspension was unnecessary, unreasonable, and invalid. The 1st defendant is empowered constitutionally to exercise disciplinary control over its staff. See Items 5 & 6 of Part 11 of the 3rd schedule to the 1999 Constitution as amended, as well as the Ondo State Judicial Service Commission Law and Regulations supra particularly at Part VI and the Ondo State Civil Service Rules Cap 31, the Laws of Ondo State of Nigeria, 2006 particularly at Chapter 4 evince that there are disciplinary procedure to be taken against a Public officer. These statutory provisions empowers the 1st defendant to appoint, promote and discipline its staff. The law is that there are two types of suspension: ‘suspension pending enquiry’ and ‘suspension as a punishment’. Suspension pending enquiry is not a punishment per se, for if the employee is not found guilty, the suspension has to be lifted and he has to be paid full wages for the period, as if he was never suspended. On the other hand, suspension imposed on the establishment of guilt is in the nature of punishment; it can have adverse impact on the career prospects of a staff. In the case of Udemah v. Nig. Coal Corp. [1991] 3 NWLR (Pt. 180) 477 CA, the Court held that an employer has the right to suspend an employee for the purpose of investigation or disciplinary action. It is on record that on the 14th of September, 2017 when the 1st defendant issued the claimant a letter of suspension, she alleged that she was on maternity leave and thus her suspension is unlawful. In prove of this assertion claimant tendered Exhibit WD3 her application for maternity leave dated the 5th of September, 2017. The defendants contrary to the pleadings of the claimant averred that the claimant’s application for maternity leave was supposed to have been made twelve (12) weeks before delivery as required by law, but was made after the delivery of her baby. And prior to the claimant’s alleged application for maternity leave, no medical certificate was presented to the 1st defendant twelve (12) weeks before, showing the prospective date of confinement and the claimant never sought or obtained any approval from the 1st defendant but proceeded on self-approved maternity leave as they are not aware of the leave. By the Ondo State CSR 03301, a woman who becomes pregnant shall proceed on 12 weeks maternity leave with pay to be taken at a stretch, counting from the date the officer commences the maternity leave. A medical certificate showing the prospective date of confinement must be presented not less than 3 months before that date. No woman shall be permitted to resume duty until she has exhausted her 12 weeks maternity leave. It is the defendants’ contention by paragraph 39 of their joint statement of defence as stated earlier in this judgment that there was no approval for maternity leave for the claimant in view of her failure to follow the procedure. This according to them is because the maternity leave application ought to have been made 3 months before her due delivery date with a medical report evincing her EDD date. The claimant indeed, under cross-examination admitted that she applied for maternity leave after the birth of her child which the defendants received on the 5th of September, 2017. Aside exhibit WD3, which is the claimant’s application letter for maternity leave dated 5th of September 2017, there is no other document evincing the fact that the 1st defendant approved the maternity leave. This is in clear breach of her contract of employment, specifically Rule 03301 of the CSR. Now, having failed to comply with the terms of her contract binding on her before proceeding on maternity leave, would it be lawful for the claimant to take advantage of the provision of Section 32 of the JSC regulation? The law is long settled that a party should not benefit from his own wrong. See Mr. P.T. Adedeji v. Dr. Moses Obajimi [2018] LPELR- 44360SC. This is well represented in a latin maxim, ex turpi causa non oritur actio. This was well couched by a chief Justice of England about a hundred years ago in the English case of Collins v. Blatern, decided in 1867 by Lord Chief Justice Wilmot who held inter alia thus-
You shall not stipulate for enquiry no polluted hand shall touch the pure fountain of justice. You shall not have a right of action when you come into a Court of Justice in this unclean manner….Procul! Procul este profani
This maxim was applied by Akpata JCA ( as he then was) in Adedeji v. N.B.N. Ltd [1989] NWLR (PT. 96) 212 @ 226, where his Lordship quoted the dictum of Widgery, LJ. In Buswell v. Godwin [1971] 1 All E.R, 421 thus-
The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse.
It is my firm view placing reliance on the above maxim and the case law authorities cited and in the circumstances of this case, that to allow the claimant who finds it difficult to comply with simple procedure in obtaining approval for her maternity leave, to benefit from her own breach by acceding to her claim for unlawful suspension because she was on maternity leave, will amount to turning the law over its head and occasion injustice. Claimant is also contending that her suspension is in breach of her fundamental right to fair hearing. Case law authorities are clear that question of fair hearing and or natural justice is immaterial, when it comes to suspension. For instance, the Supreme Court in Longe v. FBN Plc (supra) held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. See also Ayewa v. University of Jos supra, Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Shell Pet. Dev. Co. v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249. It is equally the law by the authority of University of Calabar Teaching Hospital & Anor v. Juliet Koko Bassey [2008] LPELR-8553CA, that where an employee is suspended all his rights, privileges and powers attached to the employment cease until he or she is cleared. It therefore flows from this that claimant’s claim under the African Charter on People’s Rights as well as the ILO Convention cannot be sustained. It is noteworthy that the claimant was invited by the 1st defendant to an interview vide exhibit WD 7, but failed to do so. She cannot therefore complain of an infringement on her fundamental right. It is in consequence of the failure of the claimant to seek for and obtain approval for her maternity leave 12 weeks before her delivery date that I find that claimant breached Rule 03301 of the Ondo State CSR, supra, she has therefore failed to show that her suspension is unreasonable, unnecessary, invalid and hence unlawful. Accordingly, I hold that claimant’s suspension is lawful. Therefore, claimant’s reliefs 2, 3 and 4 are hereby discountenanced.
Regarding reliefs 5, 6, 7, of the claimant, it goes without saying that having held that claimant’s appointment ab initio is void, and also that she is in breach of Constitutional provision and the JSC regulations, she is not entitled to these reliefs. Consequent upon which claimant’s reliefs 5, 6, 7 and 8 are hereby discountenanced and thus dismissed.
With regards to the claimant’s claim for perpetual injunction restraining the defendants whether by themselves, agents or privies from further suspending or tampering with the employment/appointment, salaries, allowances or other entitlements on the alleged irregularities of her appointment. I find this to be an equaitable relief and as held above in this judgment, he who comes to equity must come with clean hands and that the claimant has not approached this Court with clean hands having disobeyed the 1st defendant. She is on this basis not qualified to be granted this relief. Accordingly, relief 9 is unmeritorious and thus dismissed.
Regarding, the defendants’ counterclaims, having held supra in this judgment that claimant’s appointment by virtue of the reasons given supra, was null and void ab initio. Consequently, claimant’s letter of appointment dated 5th November, 2013 and all subsequent letters are null, void and thus set aside. I therefore, make an order ordering the claimant to refund all salaries she received in this regard from November 2013 to September, 2017 when she was lawfully suspended by the 1st defendant. Claimant is equally restrained from acting on the letter of appointment dated 5th November, 2013 issued to the claimant by one Ademola Enikuomehin Esq.
In conclusion, it is obvious that the claimant’s claims failed in its entirety and the defendants’ counter claims succeed. For the avoidance of doubt, I declare and order as follows;
1. That the Offer of Appointment to a Pensionable Establishment letter dated 5th November, 2013, addressed to the claimant as a Chief Magistrate Grade II is null and void and thus set aside.
2. That the suspension of the claimant by the defendant is not unlawful.
3. That the defendants’ counterclaims succeed.
4. That the claimant is to refund all salaries she received pursuant to the letter of appointment dated 5th November 2013 to the 1st defendant, from November 2013 to September 2017.
5. That the claimant is restrained from acting on the letter of appointment dated 5th November 2013.
6. No order as to costs.
Judgment is entered accordingly.
Hon. Justice Oyebiola Oyejoju Oyewumi
Presiding Judge
