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Iringe-Koko Charles Olatundun -VS- Ondo State Judicial Service

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATE:  3RD DECEMBER, 2018                 SUIT NO. NICN/AK/35/2017

BETWEEN

IRINGE-KOKO CHARLES OLATUNDUN                             CLAIMANT

AND

  1. ONDO STATE JUDICIAL SERVICE COMMISSION
  2. ATTORNEY GENERAL & COMMISSIONER

      FOR JUSTICE, ONDO STATE                                              DEFENDANTS

  1. CHIEF JUDGE OF ONDO STATE
  2. SECRETARY, ONDO STATE JUDICIAL SERVICE

      COMMISSION

 

REPRESENTATION

  1. Udofot Esq. with him are Olaoluwa Umoru Esq, Olakunle Ajayi Esq, L.E. Udofot Esq. for the Claimant

A.A Adeyemi (Mrs) Assistant Chief Legal Officer, Ondo State Ministry of Justice with her is D.F.A Omoloye, Bode Aigbusi for the Defendants

 

 

JUDGMENT

The claimant approached this Court by a General Form of Complaint filed on 27th day of November, 2017, claiming against the defendants the following reliefs:

  1. A Declaration that the 1stand 4th defendants’ letters of suspension and termination of appointment dated 14/09/2017 and 08/11/2017 respectively are irregular, inappropriate, unlawful, unfair, unjust and unconstitutional thereby rendering same null and void and of no effect whatsoever.
  2. An Order setting aside the 1stand 4th defendants’ letters of suspension and termination of appointment dated 14/09/2017 and 08/11/2017 respectively.
  3. A Declaration that the claimant still remains in the employment of the 1stdefendant and entitled to the unimpeded payments of her salaries, allowances and entitlements enjoyed by other staff of the 1st defendant (of the claimant’s status) in the employment of the 1st  defendant.
  4. An Order of this Honourable Court reinstating the claimant to her position both as an employee of the 1st defendant and as a Magistrate Grade II forthwith or such other cadre or position where her colleagues/contemporaries are at the time of the judgment of this Court.
  5. An Order directing the defendants to pay to the claimant forthwith all her arrears of salaries, allowances and entitlements payable to her colleagues/contemporaries as at the date of judgment all of which the defendants have deprived the claimant by virtue of the purported termination of appointment.
  6. An Order of perpetual injunction restraining the defendants either by themselves or by their agents, officials, staff and any other person howsoever described but acting for or at the instance of the defendants from further interfering with or impeding the claimant’s functions as a Magistrate.
  7. An Order of perpetual injunction restraining the defendants either by themselves or by their agents, assigns, officials, workers and/or any person howsoever described acting for or at the instance of the defendants from further terminating the claimant’s employment.
  8. An Order directing the defendants to pay to the claimant the sum of Two Million Naira (N2,000,000.00) general damages for the emotional trauma, disorder and ridicule the claimant was made to suffer by the unconstitutional, illegal, unlawful, oppressive and null conducts of the defendants’ termination of the claimant’s appointment.

It is the case of the claimant that she was offered employment by the 1st defendant as a Staff Attorney vide a letter dated 24/11/2015. She stated that she along with five others got converted to the position of a Magistrate on 30/3/2016 which was to be effective from 1/1/2016. It is her contention that as a Staff Attorney, her grade level was Grade 12 step 2 as Senior Registrar 1 and on 29/3/2016 at the plenary of the 1st defendant as Senior Magistrate II, her Grade level was Grade level 13 and was on the level till her appointment was purportedly terminated. She stated that prior to the time she started sitting as a Magistrate, she, with other newly employed Magistrates were trained by the Chief Registrar, Deputy Chief Registrar (Establishment and Training) and also understudied some Chief Magistrates before she started sitting as a Senior Magistrate II in 2016. That she gave several orders and delivered judgments in several matters. That she wrote the test prepared by the 1st defendant and was sworn in by then Chief Judge of Ondo State Honourable Justice Olasehinde Kumuyi (as he then was).She averred that her employment was confirmed and gazetted and that same is pensionable and of statutory flavour. She pleaded that by a letter dated 14/9/2017, she was allegedly suspended by the defendants for what is termed: “Perceived Irregularities and Lack of Due Process in your Appointment as a Magistrate in the Ondo State Judiciary”. That prior and after the receipt of her suspension letter, she was not issued with any query and not paid her salary for the month of September, 2017 and that on 13/11/2017, that she received the letter terminating her employment dated 8/11/2017. She contended that the defendant did not give her opportunity to be heard and to defend herself for the alleged allegation, that the defendant did not request her attendance at plenary session of anywhere before deciding to suspend and subsequently terminate her appointment. That at the time of her purported suspension and the termination of her appointment with the 1st defendant, her monthly salary after due deductions is N132, 706.33k. She pleaded that she is also entitled to salaries, wardrobe allowance, monthly imprest and leave allowance as she has not been paid for October 2016 to January, 2017 and September, 2017 to the filling of this suit. That her employment is governed by the Judicial Service Commission Law Cap. 70Vol. 2, The Laws of Ondo State of Nigeria, 2006; The Judicial Service Commission Regulations Cap 70Vol. 2, The Laws of Ondo State of Nigeria, 2006; Civil Service Commission Law Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006 and Civil Service Commission Regulation Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006. She averred that her purported suspension and termination is unconstitutional and has subjected her to emotional trauma and disorder, shame and ridicule.

The defendants on the other hand in their amended statement of defence filed on the 28th June 2018 traversed that the 1st defendant is a statutory body vested with the authority to appoint, dismiss, promote and exercise disciplinary control over the High Court staff, Magistrates, President and Members of the Customary Court and all others staff of the Ondo State Judiciary and that all decisions touching on members of staff in Ondo State Judiciary are taken and implemented at the plenary session of the 1st defendant as a collective unit and not by a member and also that where a position in the State Judiciary is vacant, it is the prerogative of the 1st defendant to decide in her plenary whether or not the vacancy will be advertised and the modality in accordance with the extant law. The defendants averred further that sometimes in 2017, they observed irregular and indiscriminate appointment of the Magistrates and some Senior staff other staff into the Judiciary of Ondo State contrary to the Ondo State Judicial Service Commission Law and Regulations CAP 70, Vol. 2, 2006 between 2010 and 2016 and then it suspended some Senior officers including the claimant to review their appointments. They pleaded that the decision to suspend the claimant’s purported appointment among other affected officers was taken by the 3rd defendant and subsequently ratified at the plenary session of the 1st defendant and that the letter was only signed by the 4th defendant, also that the claimant was not properly appointed as Senior Registrar 1 as she was never invited for any oral or written interview before her purported appointment. Furthermore, they stated that no vacancy for the post of Senior Magistrate 1 was communicated in writing by the Chief Registrar to the 1st defendant and no record of any advertisement in whatever form for the said post and was never deliberated upon by the 1st defendant at any of her plenary meetings on or before the claimant’s purported appointment. The defendants stated further that the claimant was appointed by one Chief S.A. Akinrinsola himself as the Offer of the Appointment dated 23rd November, 2015, was done by him without the knowledge or directive of the 1st defendant and that her purported appointment as Senior Registrar 1 on GL 12 Step 2 on 23rd November, 2015 (not as a Staff Attorney) was not done in accordance with applicable law and regulations governing such employment. It is the averment of the defendants that the 1st defendant never considered the claimant for the position of a Magistrate and that for any officer to be considered for transfer from one cadre to another, the vacancy will be advertised while the 1st defendant shall instruct that a list of applicants be submitted to it for consideration at her plenary session. Furthermore, they argued that any officer employed into the Public Service in Ondo State is expected to be under probation for two (2) years or such longer period as may be deemed advisable, also that an officer seeking transfer from one cadre to the other must first be confirmed via a letter of confirmation after the two years’ probation period had elapsed, that in the instance of the claimant, she was under probation as the time she was purportedly converted, transferred or moved from the purported Registrar cadre to the Magistrate cadre and was not issued with any letter of Conversion. They argued further that the claimant cannot preside and not qualified to preside as a sitting Magistrate over any matter in any Court of law as her appointment is irregular and that her purported appointment in a Gazette is a mere notice to the general public which does not translate to a regular or lawful appointment. They averred that all other officers suspended alongside the claimant over same allegation were not paid their salaries and other entitlements during the period due to the recession in Ondo State and in the country as a whole but that subsequently, the claimant’s salary arrears of the months of September and October and the month of November, 2017 in lieu of notice had been paid. That the 1st defendant is at liberty to solely determine such case without hearing from the claimant since the issue of appointment of personnel, particularly the circumstances surrounding the appointment of the claimant is strictly an administrative matter as the 1st defendant can at any time during probation terminate the claimant’s appointment by a month notice in writing or by payment of a month salary in lieu of notice. It is further stated that the claimant’s suspension and subsequent termination of appointment were regular and not premeditated or prolonged and not vindictive or discriminatory or in breach of her right to fair hearing and that upon thorough review of the irregularities in the appointment of the affected officers, the 1st defendant recalled some suspended Magistrate having found that their appointment had followed due process upon perusal of their records. The defendants averred that the purported arrears of monthly salaries, allowances and other entitlement are unlawful and recoverable from the 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 IK1- IK9.  The defendants during trial testified through one Williams Adebisi Daomi, as DW. He adopted his statement on oath dated as his evidence in this case,he sought to tender some documents which were admitted in evidence by the Court and marked Exhibits D-D6.

On the 20th July, 2018, the defendants filed their final written address wherein they raised four issues for the determination of this suit, which are:

  1. Whether from the totality of the evidence adduced by the Claimant before this Court, the Claimant has proved her case on the balance of probability in order to be entitled to judgment.
  2. Whether the 1stDefendant does not have a right to terminate the Claimant’s appointment.
  3. Whether the Suspension Letter dated 14thSeptember, 2017 is not valid.
  4. Whether the Claimant is entitled to the salaries, Allowances, imprest and other Pecuniary benefit as senior Magistrate II, Grade level 13, having acted without due process of law.

As regards issue one, learned counsel to the defendants submitted that for the claimant to succeed in her claim in this suit, she needs to prove the following:

  1. The validity of the claimant’s employment as a Senior Registrar 1
  2. The validity of the claimant’s conversion into Magistracy

iii.   The effect of Official Gazette in this suit

  1. On inference to be drawn from certain alleged wrongly admitted inadmissible document.

On the validity of the claimant’s employment as a Senior Registrar 1, it is the argument of counsel as earlier stated above, that the appointment of the claimant as Senior Registrar 1 vide Exhibit IK1 signed by one Chief S.A. Akinrinsola without recourse to due process of law is not regular and invalid and that the claimant did not prove otherwise, counsel continued to argue that according to the provisions of the Ondo State Judicial Service Commission Law and Regulations, an applicant must fulfill and satisfy the stated conditions or requirement for appointment in the service of the 1st defendant, whether for fresh appointment on inter-cadre transfer of service, before he or she could be appointed. Relying on Regulation 13(1) of the Ondo State Judicial Service Commission Regulation, Vol 2, Laws of Ondo State, 2006, counsel submitted that the evidence of the claimant on 2nd July 2018 that, she became aware of the vacancy from a friend and then called the then Chief Judge of Ondo State, is clearly hearsay evidence and that it is settled law that, hearsay evidence is not admissible in law. The cases of JAMB v. Orji [2008]2 NWLR (Pt. 1072) 552 and Buhari v.Obasanjo [2005]2 NWLR (Pt. 910) 241 was cited. Counsel submitted also that the evidence of the claimant is not substantiated and therefore not credible and urged the Court to discountenance the evidence of the claimant in that regard as the case of Ishola v. Ishola [2015] All FWLR (Pt. 779) 1117, was equally cited. It is the submission of learned counsel that a careful look at Exhibit IK1 shows that the letter was not authorized by the 1st defendant but by Chief S. A. Akinrinsola who was the Secretary of the 1st Defendant and that by the provision of Section 1 (2) of Judicial Service Commission Laws of Ondo State CAP 70, Vol 2, 2006, the Secretary is not a member of the 1st Defendant and does not have the power to appoint the claimant into the 1st Defendant. Counsel therefore urged the court to hold that Exhibit IK1 is irregular and invalid.

On the validity of the claimant’s conversion into Magistracy, it is the contention of counsel that the claimant did not follow the procedure clearly set out in Regulations 12 – 17 of the Ondo State Judicial Service Commission Regulation, Cap 70, Vol 2, Laws of Ondo State, 2006 and that of Civil Service Rule 1999 as contain in the Laws of Ondo State, 2006, particularly Section 6 Rule 02601, paragraphs a and b as well as Section 3, Rule 02301 of the Civil Service Rules 1999 as contained in the said law, CAP 31, Vol 1, 2006, in her conversion to Magistrate Cadre. Counsel went on to argue that it is trite that the express mention of one thing in a statutory provision automatically excludes others which otherwise would have been excluded by implication and also that probationary appointment does not confer the rights conferred on confirmed employees of the same organization as reliance was placed on the cases of A.G. Lagos State v. A.G Federation [2015] 62 (pt. 2) NSCQR 1155 at p. 1242; Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 and Bashir Alade Shitta-Bey v. Federal Public Service [1981]1 SC 41. Furthermore, it is argued that the claimant who had spent just 4 months in the employ of the 1st defendant cannot possess a satisfactory Annual Performance Report for two years and neither could she also possess record of service showing clearly her career progression, the Court was urged to so hold. Reliance was placed on the cases of Mbang v. Guardian Newspaper Ltd &Anor [2010] LPELR – CA/C/100 and Dambam v. Lele [2000] 11 NWLR (pt.678) 413.

Regarding the effect of Official Gazette in this suit, counsel argued that the position of the claimant that her appointment being gazetted, amounts to her confirmation, is wrong and not supported by any law as gazette cannot take the place or supersede the law and more so, that notification in the gazette of an otherwise invalid appointment would not cure the legal defect in the appointment. See Gbafe v. Gbafe [1990] 6 NWLR (pt.455) 417 at 434 SC and Nwosu v. Imo State Environmental Sanitation Authority [1990] 1 NWLR (pt. 688) 621. Learned counsel submitted on this point that the claimant’s conversion to Magistrate cadre in a letter dated 30th March, 2016 is void ab initio.

On inference to be drawn from certain alleged wrongly admitted inadmissible document, learned counsel submitted that Exhibit D6 which was admitted in evidence by the Court on 3rd July, 2018, was wrongly admitted and urged the Court to expunge same in evidence. Counsel went on to argue that in civil cases, parties to an action are always bound by their pleadings and without proper and well informed pleadings, any evidence given goes to no issue as reliance was placed on it. He cited the case of Olusanya v. Osinleye [2013]54 (pt.2) NSCQR 932 at p. 957. It is submitted also that the said Exhibit was neither pleaded in the amended statement of facts nor was it frontloaded as specified in Order 30 Rule 1(1) of National Industrial Court Rules. For the reasons highlighted above, counsel submitted that this Court cannot draw any inference from Exhibit D6 as same obviously offends the rule of pleading and therefore the evidence led concerning the said Exhibit on fact not pleaded, goes to no issue and that it is liable to be expunged or discountenanced. As the cases of Mani v. Shanono [2007] All FWLR (pt. 345) 303 at 318 Paras F-G and Buhari v. INEC [2008] All FWLR (Pt. 437) 42 at 83, para E were referred to, the Court was urged to expunge Exhibit D6.

On issue two, it is the submission of counsel that with regard to Exhibits IK1, IK 2, IK 3, IK4 and IK6, the 1st defendant in this suit has the right to terminate the claimant’s appointment for being irregular and as such not valid as it is trite that contract of service is the bedrock upon which an aggrieved employee must found his or her case, therefore, in written or documented contract of service, the Court will not look outside the terms stipulated or agree there in deciding the rights and obligations of the parties. Cited in support is the Modu Aji v. Chad Basin Development Authority & Anor [2015] 61 (Pt.3) NSCQR 1817 at p. 1848–1849. SC. It is also submitted that the comparison of Exhibits IK1 and IK4 dated 23rd November, 2015 and 8th November, 2017 respectively, show that the claimant’s Appointment was not up to two years at the point of the termination of her appointment, meaning that she was still under probation at the time her employment was terminated, as such, her termination is not one of procedure and it is entirely within the discretion of her employer to determine if there is a good cause for the termination and that it does not require hearing from the claimant. The authorities of Dr. Ajewunmi Bili Faji v. OAU [2014] 4 LPELR – 22088 C.A; Ihezukwu v. University of Jos [1990] 7 SC (pt. 1) 421; Wayo v. Judicial Service Commission, Benue State & Anor [2006] All FWLR (Pt. 303) 66 @ 78-9. CA and Kusamotu v. Wemabod Estates Ltd [1976] 11 SC 279 were relied upon. Learned counsel therefore urged the Court to hold that Exhibit IK4, issued to terminate the claimant’s appointment is proper, valid and regular.

It is the position of counsel on issue three that Exhibit IK 3 issued to the claimant was not a disciplinary measure but to allow the 1st defendant look into the circumstances surrounding the purported appointment of the claimant as a Senior Magistrate in the 1st Defendant after which the 1st defendant at her Plenary, resolved to terminate her appointment as Regulations 28 and 71 of the Ondo State Judicial Service Commission Regulation empowers the 1st defendant has the discretion to adopt any proceedings in relation to her staff as it seems desirable in any circumstance in line with the regulations. Counsel submitted further that the disciplinary procedure provided for in the Judicial Service Commission Regulations only applies to a situation of an alleged misconduct of an officer in the course of discharging his or her duties and does not relate to issues arising from the procedure for the appointment of an officer as it is in the instant case. The Court was urged to so hold and also hold that the suspension of the claimant between 14th September, 2017 and 8th November, 2017 is valid and justifiable.

On issue four, counsel submitted that the 1st Defendant, in fulfillment of her statutory right, paid the claimant all her entitlements including November salary for the year, 2017 to fully discharge her once, the testimony of the claimant on 2nd July, 2018 that she had been paid her salaries for the month of February – November, 2018 was referred to and that her pay slip also shows that the 1st defendant is not owing her any dime. It is the further submission of learned counsel that having canvassed before the Court that, the 1st defendant reserves the statutory right to disengage the claimant who was yet to be confirmed as a permanent staff, he urged the Court to hold that the claimant is not entitled to reinstatement as prayed and discountenance the order for same, reliefs sought and dismiss this case. Conclusively, it is submitted that from the totality of the evidence before the Court, the claimant has no cause of action and as such, the Court was urged to uphold defendants’ counsel submission and dismiss this suit for being frivolous, gold digging and misconceived.

The claimant on the other hand raised three issues for determination in her final written address filed on the 29th August, 2018, which include:

 

  1. Whether the claimant has established the existence of an employer/employee relationship between the claimant and the 1stdefendant.

 

  1. Whether the appointment of the claimant by the 1stdefendant enjoys statutory flavour.

 

  1. Whether the letter of suspension dated 14/9/2017 as well as the letter of termination of appointment dated 8/11/2017 both given to the claimant by the 1stand 4th defendants are not unlawful, illegal, unjust and arbitrary.

 

In addressing issue one, learned counsel to the claimant argued that the existence of employment i.e. employer/employee relationship between the claimant and the 1st defendant is discernible from or to be established by the documents of employment issued by the 1st defendant to the claimant (A letter of offer of appointment dated 23rd November, 2015 – Exhibit IK1, Letter of conversion dated 30th March, 2016 – Exhibit IK2 and Ondo State Official Gazette – Exhibit IK6). Arguing further, counsel posited that the effect of the publication of the name of the claimant in Exhibit IK6 is a fulfillment of the requirement of Rule 02303 of the Ondo State Civil Service Commission Rules, CAP. 31, Laws of Ondo State, 2006 and not a mere notice to the general public. To further buttress the existence of an employer-employee relationship between the claimant and the 1st defendant, counsel posited that parties herein agreed in their pleadings and evidence that the person who signed both Exhibits IK1 and IK2 i.e.  Chief S.A. Akinrinsola, was at the material time, the Secretary of the 1st defendant and it is palpable and crystal clear that in signing these letters, he (Chief S.A Akinrinsola) acted in an official and not personal capacity, counsel referred to paragraph 17 of the consequential amended statement of defence and Regulation 5 of the Ondo State Judicial Service Commission Regulations Cap.70, Laws of Ondo state of Nigeria, 2006. Submitting further, counsel contended that the defendants are estopped from denying the employer/employee relationship between the claimant and the 1st defendant by virtue of Section 169 of the Evidence Act, 2011 and the authorities of Ude v. Useji [1990] 5 NWLR (Pt. 151) 488; Adone & Ors. v. Fiebudu & Ors. [2001] 7 S.C. (pt. 111) 22.

 

In view of the foregoing, the Court is urged to resolve this issue in favour of the claimant.

 

On issue two, counsel relied on the authorities of PHCN Plc. v. Offoelo [2013] All FWLR (pt. 664) 1 at 30; Idoniboye – Obu v. NNPC [2003] 1S C 40; Imoloame v. WAEC [1992] 9 NWLR (pt. 265) 303; Bamisile v. National Judicial Council [2013] All FWLR (Pt. 678) 911 at 949; F.C.M.B. Ido-Ekiti v. Olajide [2011] All FWLR (pt. 593) 1944 at 1963 and Federal Medical Center, Ido-Ekiti & 2 Ors. v. Kolawole [2012] All FWLR (pt.653) 1999 at 2011 and submitted that an employment enjoys statutory flavour when two main ingredients co-exist viz: that the employer is a body set up by statute and the stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. It is argued further that the defendants by paragraphs 3, 13 and 58 of the consequential amended statement of defence, agreed that the 1st defendant is a statutory body and that the claimant’s appointment is governed by the Judicial Service Commission Law and Regulations CAP.70, Vol. 2, 2006, meaning that the defendants are taken to have admitted that the employment of the claimant by the 1st defendant is of statutory flavour as it is trite that any material fact not traversed or properly traversed is taken to have been admitted. He relied on the case of Allison v. Clever [2016] ALL FWLR (pt. 855) pg. 166, para. G.

 

From the foregoing as well as the facts and evidence before the Court, it is the position of counsel that it is immutable that the claimant was employed by the 1st defendant which is a creation of statute/law which statute/law clearly provides and spells out the procedure for the suspension and termination of the claimant’s appointment thus making the claimant’s employment with the 1st defendant one which has statutory flavour and therefore urged Court to so hold and to also resolve this issue in the claimant’s favour.

The learned counsel, while addressing issue 3, contended that the earlier unilateral decision/directive of the 3rd defendant suspending the claimant is arbitrary and unlawful and same applies to the 1st defendant’s purported ratification of the said unlawful decision as there is no provision in the extant Judicial Service Commission Law and Regulation of Ondo State as well as the Ondo State Civil Service Commission Law, Regulations and Rules which empowers the defendants to suspend the claimant for perceived irregularities or lack of due process in her employment when no query or allegation of misconduct or general inefficiency has been levelled against her. On the issue of advertisement of vacancy, counsel argued that the intention for Regulation 13 (1) of Judicial Service Commission Regulations is not to make advertisement of vacancy mandatory but at the 1st defendant’s discretion and urged the Court to so hold as the case of Kraus Thompson v. N.I.P.S.S[2004] All FWLR (pt.218) pg.809, paras. F-G was commended to the Court.

 

Learned counsel finally submitted that the claimant has convincingly established her case against the defendant on the preponderance of evidence adduced by both parties in line with the pleadings, and that she is consequently entitled to all the reliefs sought. Based on this, counsel urged the Court to resolve all the issues formulated for determination by the claimant in her favour and grant all the reliefs sought against the defendants.

The defendants’ vide their reply on point of law filed on the 11th October, 2018 in response to the claimant’s written submission argued that Section 168 (1) of the Evidence Act, 2011, is applicable only if it is shown by the claimant that the judicial or official act was done in a manner substantially regular and then, it would be presumed that the formal requisites for its validity were complied with. To support this position, counsel placed reliance on the cases of Amako v. The State [1995] 6 NWLR (Pt. 399) 11; Jalingo v. Nyame [1992] 3 NWLR (Pt. 231) C.A; Ondo State University v. Folayan [1994] 7-8 SCNJ (Pt. 1) 186; Nigeria Air Force v. James [2003] FWLR (Pt. 143) 257 SC and Torri v. N.P.S.N. [2011] ALL FWLR (Pt. 601) 1388 SC. To buttress the earlier contention of the defendants that Exhibits IK1, IK2 and IK6 were issued irregularly having not followed the procedure as laid down by the relevant Laws and Regulations governing the employment/appointment in the judicial service of Ondo State, counsel commended to the Court the provisions of Rule 02303 of the Ondo State Civil Service Commission Rules, Cap 31 Laws of Ondo State, 2006 and submitted that the claimant’s appointment cannot be confirmed via a gazette publication and certainly cannot be the evidence of her confirmation in a government establishment, the Court was urged to so hold.

 

Furthermore, learned counsel submitted in regard to the validity of Exhibit IK3, that the claimant was not in any way alleged of any misconduct and so the procedure adopted was not to discipline her but to correct the abnormality, illegality and irregularity in the process of her Conversion into the Magistracy of the 1st Defendant and that the 1st defendant has a right to suspend the claimant for proper investigation into the perceived irregularities. Reference was made to the cases of Udemah v. Nigerian Coal Corporation [1991] 3 NWLR (Pt. 180) 479 at 486 and Lewis v. Heffer [1978] 3 ALL ER 354 at 364 and counsel urged the Court to hold that Ex IK3 was valid and that the procedure adopted by the 1st defendant to enable proper investigation into the perceived irregularity of the claimant’s appointment was proper and regular. It is however submitted that there was no vacancy for the position a Registrar as at the time the claimant was employed and that the 1st defendant did not waive the requirement to advertise any vacancy/position in the judiciary of Ondo State. As to the argument of the claimant’s counsel that the claimant was interviewed by the then Chief Judge, Hon. Kumuyi in the presence of one Alhaji R.O. Kazeem amongst others, counsel submitted that Hon. Justice Kumuyi and Alhaji R.O Kazeem do not form quorum and do not constitute the Judicial Service Commission of Ondo State and therefore urged the Court to hold that Exhibit IK1 is invalid, irregular and void abi initio. Leaned Counsel further urged the Court to discountenance the position of the claimant’s counsel as to the plenary session of 29th March, 2016 as the document was never pleaded nor tendered in evidence before this Court and that the defendants was not given any notice to produce same in this suit. See Comrade I.L Onah V NLC & or [2013] NLLR (Pt. 94) p. 164 para E-F. While citing the case of Nsirim v.Nsirim [2002] 2 SNCJ 46 at 60, learned counsel submitted that the principle of estoppel cannot rightly be founded upon having regards to all the facts of this case. It is also submitted that the appointment of Magistrate is governed by Statute and failure to follow the laid down procedure in the said relevant statutes renders such an appointment invalid and irregular and the defendants cannot be estopped from making such an assertion and moreso, notwithstanding that a party should not benefit from his own wrong.

Learned counsel also urged the Court to discountenance the submissions of learned Counsel for the claimant and hold that Exhibit IK4 issued to the claimant on the 8th November, 2017 is proper, regular and valid and finally, to dismiss this suit in its entirety.

Having carefully considered the originating processes filed in this suit, the evidence of parties therein and the written submissions of counsel, it is in my calm view that the issues that will decide this suit in the interest of justice are;

  1. Whether or not the suspension of the claimant is lawful.
  2. Whether or not claimant’s employment was lawfully terminated.
  3. Whether or not the claimant is entitled to her claims.

 

On the preliminary issue before the Court, it is the argument of the defence counsel that Exhibit D6 admitted by the Court ought to be expunged as it was not pleaded nor frontloaded by the defendants. Counsel argued further that in civil cases, parties are at all times bound by their pleadings and without which any evidence given goes to no issue. Learned claimant counsel in response contended that the said Exhibit D6 was tendered by the claimant through DW1 during cross examination to buttress the fact that her termination was discriminatory given the fact that one Ajiboye Fatai who was equally suspended alongside with her was recalled as a Magistrate. It is clear that the document sought to be expunged by the defendants is Exhibit D6; is a minute of the plenary of the 1st defendant held on the 12th of October, 2017 tendered through the DW1 who confirmed it to be the document of the 1st defendant and he as the Secretary in whose custody all plenary documents resides can tender same. It thus emanates from a proper custody. The document in question is significant to the decision of the Court in this suit, as it is relevant in all intent and purposes. The position of the law is that relevancy is the antecedent or forerunner/heralds admissibility, it is apposite to mention that the defendants during trial had earlier objected to the admissibility of this document on the ground that it is a photocopy of a Certified True Copy. The claimant counsel argued that Exhibit D6 is before the Court to prove that claimant’s termination was discriminatory when from her testimony on oath that one of her contemporaries was reinstated back as a Magistrate. The Court in its decision admitted Exhibit D6 as a true copy of the document emanating from the office of the 1st defendant. Now, should the Court now expunge such document on the ground that same was neither pleaded nor frontloaded by the defendants when the document is relevant in establishing the case of the claimant? I answer in the negative because to so do will cause grave injustice on the part of the claimant which the law enjoins the Court to refrain from a fortiori Section 12 (2) (b) of the National Industrial Court Act, 2006 provides that the Court shall be bound by the evidence act, but may depart from it in the interest of justice. It is not at all times that documentary evidence must be tendered by the maker or, as the person to whom it is made can also produce it in Court. See the cases of Alaribe v Okwuonu [2016] 1 NWLR (Pt. 1492) 41. This document as stated supra, is admissible as it is relevant for the purpose of administering the justice in the course of the determination of this suit. See the cases of Rinco Const. Co. v. Veepee Inds. & Anor. [1990] 6 NWLR (Pt. 158) 630 at 641; Agunbiade v Sasegbon [1968] NMLR 223 SC. It is upon this basis that I discountenance the argument of the defendants and also dismissed same as lacking in merit. I so find and hold.

On issue one, it is claimant’s contention that the 1st and 4th defendants’ letters of suspension is irregular, unlawful, unfair, unjust and unconstitutional thereby rendering same null and void and of no effect whatsoever. The defendants on the other hand stated that sequel to the discovery of the irregular appointment; the 3rd defendant suspended some senior officers including the claimant to review their appointments. It is pertinent to discuss the nature of claimant’s employment at this stage. It is the claimant’s averment that her employment is governed by the Judicial Service Commission Law Cap.70 Vol. 2, The Laws of Ondo State of Nigeria, 2006; The Judicial Service Commission Regulations Cap 70 Vol. 2, The Laws of Ondo State of Nigeria, 2006; Civil Service Commission Law Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006 and Civil Service Commission Regulation Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006. The defendants pleaded that due to the alleged irregularity of appointment of the claimant and some other staff contrary to the Ondo State Judicial Service Commission Law and Regulations CAP 70, Vol. 2, 2006. The claimant while in the purported service of the defendants was offered an appointment as a Senior Registrar 1 on the 23rd of November, 2015 which later converted to the position of Senior Magistrate vide a letter dated March, 30 2016 Exhibit IK2. A keen perusal of Exhibit IK1 at clause ‘(f)’ provides that “that you will be subject in all respects to all conditions of service stipulated from time to time in Civil Service Rules 1999 and other government regulations and instructions” The Supreme Court in the case of Comptroller General of Customs v Gusau [2017] LPELR 42081 SC held that an employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulation derived from statutory provisions. More specifically, an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or by a section(s) of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. See the case of Elizabeth Modupe Oyeduntan v WAEC & Anor [2015] 194 NLLR(Pt. 194) 64. Also the Apex Court in the case of Oforishe v Nigerian Gas Ltd [2017] LPELR 42766 SC, a Contract is one with statutory flavour where the conditions for appointment, remuneration and termination of the contract are governed by an enabling statute.  The 1st defendant in this suit was established by a law of the House of Assembly of Ondo state. It is a body set up by statute the Judicial Service Commission specifically at Section 1(1) of the Judicial Service Commission Cap 70 Laws of Ondo State 2006. In all, it is clear from the reasoning above that claimant’s employment is one of statutory flavour and as such he enjoys a special status over the ordinary master and servant relationship. See the cases of Ujam v I.M.T [2007] 2 NWLR (Pt 1019) 470; Bamishile v.National Judicial Council {supra} [2013] All FWLR (Pt. 678) 911; FMC Ido-Ekiti& 2 Ors v.Kolawole [2012] All FWLR (Pt. 653) 199.

With regards to the issue of suspension, the Black’s law Dictionary 9th Edition, Edited by Bryan A Garner defines suspension at page 1584 as “the act of temporarily delaying, interrupting, or terminating something… the temporary deprivation of a person’s powers or privileges especially of office or profession.”Suspension is an aspect of the discipline of a staff by an employer and by Imonikhe v.Unity BankPlc [2011] 12 NWLR (Pt.1262) 624 SC at 649, an employer has the right to discipline any erring employee in the interest of the organization or institution, although the Court in NEPA v. Olagunju [2005] 3 NWLR (Pt913) 602 held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. The employer accordingly has the right to suspend an employee when necessary. It functions to put on hold the contract rather than terminate the contractual responsibilities of the parties and the employee is deemed to be in the uninterrupted employment of the employer. While an employer has the right to suspend an employee for the purpose of investigation or disciplinary action, the employer must however, adhere with any existing regulation governing such procedure. Such a power can only be the creation of either a statute governing the contract or an express term in the contract itself. See the cases of Longe vs. F.B.N. Plc[2010] 6 NWLR (Pt.1189) 1; INEC v Okoronkwo [2009] All F.W.L.R [Pt. 488] Pg 227;Mobil Producing Nig Unlimited &Anor v Udo Tom Udo [2009] All FWLR [Pt 482] 1177; Aloysius v Diamond Bank [2015] 58 NLLR (Pt 199) p.92; Hotel Imperial v Hotel Workers Union [1995] 1 LLJ 544 (SC); Lewis v Heffer&ors [1978] 3 All ER 354.

From the above, it is apparent that an employer has the unconstrained right to discipline any erring employee in the interest of the organization or institution. See the case of Atoki v Ecobank Nigeria Limited Plc [2014] 47 NLLR (Pt 151) P.135. The law is long settled as evinced in plethora of case law authorities that where an employee is complaining of wrongful suspension from service, the terms and conditions governing his employment has to be construed to determine the rights and obligations of the employee and the employer. See Ezenwa v K.S.H.S.M.B [2011] 9 NWLR (Pt 1251) P.89. The legal consequence of suspension is determinable from the terms of employment in that suspension must be in accordance with the dictates of the condition governing the employment as stated supra in this judgment. It is the argument of claimant that she was suspended without recourse to the provision of Section 31(1) of the Judicial Service Commission Regulations and the Civil Service Rules/regulation as no misconduct was alleged against her. The defendants in their written address has submitted that the issue of Exhibit IK3 (the letter of suspension) was to allow the 1st defendant look into the circumstances surrounding the purported appointment of the claimant as a Senior Magistrate in the 1st defendant.

An indepth examination of the Ondo State Judicial Service Commission Law and Regulations supra, particularly at Part VI; Section 46(2) of the Civil Service Regulations Cap 31 the Laws of Ondo State of Nigeria, 2006 and the Ondo State Civil Service Rules Cap 31, the Laws of Ondo State of Nigeria, 2006 specifically at Chapter 4 reveals that there are disciplinary procedure to be taken against a Public officer. Also worthy of mention is Items 5 & 6 of Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) empowers the state judicial service commission at item 6 (c) “to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal, Magistrates, judges and members of Area Courts and customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this Constitution.” (Underline mine for emphasis). The defendants as rightly stated in their argument suspended the claimant on the 14th of September, 2017 on the grounds of. “Due to perceived irregularities and lack of due process in your appointment as a Magistrate in the Ondo State Judiciary, within the Judicial Service of the State, the Honourable Acting Chief Judge/Chairman of Judicial Service Commission has directed your immediate suspension from the Judicial Service pending Plenary consideration and review of the propriety of your appointment process…” and not on the ground of misconduct. Now can the defendants so suspend the claimant even when it is not on the ground of misconduct? My answer to this question is, Yes! they can, as they are constitutionally empowered to so do by Item 5 & 6 of Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).The law is trite as stated in the case of Olu Ibirogba v. The Council ‘The Federal Polytechnic Yaba’ otherwise known as ‘Yaba College of Technology Yaba Lagos. [2015] 63 NLLR (Pt 223)343 where my learned brother Per. B.B Kanyip J at pages 389-390, Paras E-A held that thus-

Now, whether the suspension in question is one pending enquiry or one that is a punishment is actually immaterial in the determination of the case of the claimant. This is because irrespective of the answer to that question i.e whether the suspension is one pending enquiry or one that is a punishment, the central issue (hence the second question) before the Court is whether the suspension is necessary and complied with the exiting regulation governing such action(Udemah v Nig Coal Corp. [1991] 3 NWLR (Pt 180) 477 SC; Longe v FBN Plc [2010] 6 NWLR (Pt. 1189) 1; Amadiume v Ibok [2006] 6 NWLR (Pt. 975) 158 CA. In other words, in suspending the claimant did the defendant act reasonably and on good grounds? Suspension, whether for enquiry or as a punishment, is qualified by the rule that it must be necessary and done reasonably and on good grounds, if it is to be legal and valid.

Applying the Court’s sound and firm position in the above stated case to this instance, a germane question to ask is, was the suspension of the claimant in this case necessary and reasonable in the circumstance, I answer in the affirmative, for the reason that the 1st defendant is constitutionally vested with the powers to discipline or make enquiry into the claimant employment. Secondly, to avoid any interference with its enquiry with respect to claimant’s employment. It is also noteworthy that the period which the claimant was suspended and purportedly terminated was not unreasonable. The law is of common that suspension of an employee when necessary cannot amount to breach of employee’s fundamental or common law rights. Differently put, the right of suspension cannot breach a person’s fundamental right as it has no nexus with issue of fundamental right under the Constitution. See the cases of Akinyanju v University of Ilorin [2005] 7 NWLR (Pt. 923) 87; Longe v First Bank Nig. Plc supra; OluIbirogba v The Council ‘The Federal Polytechnic Yaba’ otherwise known as ‘Yaba College of Technology Yaba Lagos supra. ACB v. Ufondu [1997] 10 NWLR (PT. 523) 169 CA; By Yussuf v. VON Nig. Ltd [1996] 7 NWLR (PT. 463) 746CA, suspension cannot be questioned on the ground that it could not be done unless the employee is given a notice of the allegation and the opportunity to defend himself, in other words the rules of natural justice do not apply in cases of suspension. It is consequent upon this reasoning that I find that claimant’s suspension was not unlawful. I so find and hold.

Now to issue two, it is claimant claim that the 1st and 4th defendants’ letters of termination of appointment dated 08/11/2017 is irregular, inappropriate, unlawful, unfair, unjust and unconstitutional thereby rendering same null and void and of no effect whatsoever. It is the claimant’s position that she was appointed by the 1st defendant as a Senior Registrar 1 on the 23rd of November, 2015. She asserted that after due consideration by the plenary of the 1st defendant, the claimant along with five others were converted to the positions of a Magistrate on the 30th of March, 2016 to take effect from 1st of January, 2016, however her appointment was unlawfully terminated by the 1st defendant on the 8th of November, 2017 without due recourse to the statute governing her appointment. The defendant denying the assertion of the claimant posited that the 1st defendant never at any point in time considered the claimant for the purported conversion to the position of a Magistrate as under no circumstance will a probationary staff expected to be under probation for two years or for such longer period be converted to the position of a Magistrate. Defence counsel contended that an officer seeking transfer from one cadre to the other must first be confirmed via a letter of confirmation after the compulsory two years’ probation period had elapsed. Defence counsel further argued that the termination of the appointment of a probation member of staff is not one of procedure and it is entirely within the discretion of the employer to so determine. Claimant in response stated that an officer employed by Ondo State Government may be on probation for a period less than two years before confirmation as confirmation of appointment is at the discretion of the employer consequent upon the employer’s satisfaction with the conduct, work and efficiency among others of the employee also her appointment was duly confirmed vide its publication in the Ondo State Official Gazzette.

In contract of employment or service generally, where an employee alleges wrongful termination of the employment by the employer, the onus lies on him/her, in law to prove that the termination of his/her appointment was wrongful in order to succeed in the claims he/she makes against the employer. To discharge the burden, he/she must prove that:-

( a) He/she is an employee of the employer

(b) Place before the Court the facts by way of pleadings, the terms and conditions of the employment,

(c) Who can appoint and who can terminate the appointment,

(d) In what situations or circumstances the appointment can properly be determined.

See the cases of Okomu Oil Palm Co. Ltd v. Iserhienrhien [2001]21 WRN, 161; Emokpae v. UNIBEN [2002] 17 NWLR (795) 139.Mighty Plastic Industries Limited v. Okeke [2016] LPELR-41034, NRW Industries Limited v. Akingbulugbe [2011] 11 NWLR (pt. 1257) CA, Nitel Plc v. Akwa [2006] 2 NWLR (Pt.964) 391, Ogbonna v. Neptune Software Limited [2016] 64 NLLR (Pt228) P. 518. It is pertinent to state that the claimant in this suit failed to tender the laws that regulates her employment, that is the Ondo State Judicial Service Law and Regulations and the Ondo State Civil Service Rules and Regulations which she placed reliance on to seek justice in this suit. However, the defendants tendered only the Ondo State Judicial Service Law and Regulations. As a Judex, one of the inherent powers which are constitutionally protected in our existence, and powers is to conduct the business of the Court in such a way that the rights of all parties/suitors before it are safeguarded. It is in the light of this and the overall interest of the justice of this case, that I take judicial notice of the Ondo State Civil Service Rules and Regulations in the determination of this suit. My position is further strengthened by the fact that the defendants did put it to the claimant under cross examination that her employment is subject to the Civil Service Rules and Ondo State Judicial Service Commission Law 2006, to which she answered in the affirmative. It is also evident by paragraph (f) of claimant’s offer of appointment letter exhibit IK1 thus; “That you will be subject in all respect to all conditions of service stipulated from time to time in Civil Service Rules 1999 and other government regulations and instructions”. I have stated supra that claimant’s employment is one clothed with statute and it is a basic principal of law which has gained notoriety, that employment under statue, cannot be terminated or determined lawfully unless in accordance with the precincts of the statute. This is premised on the principle of fair hearing. The right to fair hearing is founded mainly and solely on the rules of natural justice. The right to be heard is an important, radical and protective right that the Courts strain every nerve to uphold and even to imply it in some cases, where a statutory form of protection would be less effective if it did not carry with it the right to be heard. See the cases of Achu Takim Achu v. Civil Service Commission of Cross River State &Anor [2015] NLLR (Pt. 197) 511; Mahmud  Bayo Alabidun v. President of the Federal Republic of Nigeria & Anor [2015] 57 NLLR (Pt. 197) 567; Tionsha v. J.S.C, Benue State [1997] 6 NWLR (Pt. 508)307.

Now, to the argument of the defendants that claimant was on probation before her termination and hence not subjected to the procedure for termination accorded to confirmed staff. Now, it is pertinent to ask whether or not the employment of an unconfirmed staff can be determined by the defendants without following proper procedure as enshrined in their laws. Before answering this question, I wish to give an academic background into what Probation entails. The Black’s Law Dictionary supra at page 602 defines a probationary employee as “a recently hired employee whose ability and performance are being evaluated during a trial period of employment.” In the case of Al-Bishak v National Productivity Centre & Anor [2015] 57 NWLR (Pt. 194) 1 CA, the appeal Court drawing from the definition in the Black’s law Dictionary gave a judicial teeth to the meaning of the word ‘Probation’ as the initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position’. It is settled law that probation is the testing of a person’s abilities or behaviour for a specified period to find out if he or she is suitable. It is a suspension of a final appointment to an office until a person temporarily appointed has by his conduct proved himself to be fit to fill it. Thus a probationary employee must know that he is on trial and his employment is put in abeyance subject to meeting some certain standard as stipulated by the employer hence he must therefore establish his suitability for the post. However an employer must give the employee a proper opportunity to prove himself, as a probationary employee is still an employee and is therefore entitled to have appropriate guidance and advice. But, the test which are applied to a probationary employee are not necessarily the same as those which apply to confirmed appointment as for instance, in the termination of the appointment of an employee on probation, no particular procedure needs be followed once the master/employer is satisfied that there is good cause for the termination as a probationary appointment can either expressly or impliedly be lawfully terminated within the probationary period on conditions of a reasonable notice being given. See the cases of Ogbonna v. Neptune Software Limited [supra]; Simeon Ihezukwu v. University of Jos & 2 Ors [1990] 4 NWLR (Pt 146) 598 SC; NITEL Plc v. Akwa [2006] 2 NWLR (Pt 964) 391; L.C.R.I v. Mohammed [2005] 11 NWLR (Pt 395) 1 CA. On the nature of employment under probation generally, an officer on probation does not enjoy the same condition of service with an officer whose appointment has been confirmed. His status in the establishment is more or less temporary during the period of probation hence the process of his removal is not subjected to strict adherence to the rules provided that there is a good cause for termination as it is with a confirmed employee. See the cases of Al Bishak v. National Productivity Centre & Anor supra; Igwilo v CBN [2000] 9 NWLR (Pt. 672) 302; Alhassan v ABU Zaria [2011] 11 NWLR (Pt. 1259) 417; Simeon v. College of Education Ekiadolor- Benin [2014] LPELR 23320 CA. It is noted that parties are in agreement that the terms of their relationship is regulated by the Ondo State Civil Service Rules and the Ondo State Judicial Service Commission Law as stated supra in this judgment. The import of this is that claimant’s appointment is regulated by all the laws, rules and regulations stated earlier. 

Now, by paragraphs (a), (b) and (c) of claimant’s letter of appointment, exhibit IK1, claimant was placed on probation specifically for two years and went further to state that her appointment may be terminated at anytime whilst still on probation by giving a month notice or a month salary in lieu of notice. Paragraph (d) equally gives the claimant the right to terminate her employment by a month notice in writing or with the consent of her Head of Department by the payment of a month salary in lieu of notice. By regulation 29 of the Judicial Service Commission Regulations, the 3rd defendant may terminate the appointment of an officer as stated hereunder thus-

“29(1)Where an officer holds an appointment on probation and the Chief Judge at any time during the period of probation is of the opinion that the officer’s appointment should be terminated, the Chief Judge may direct the Chief Registrar subject to paragraph (3) of this regulation, to make recommendation to the Commission accordingly

(3) Where the Chief Registrar proposes on the direction of the Chief Judge to recommend to the Commission that the appointment on probation of the officer should not be confirmed but be terminated, the Chief Registrar shall inform the officer of his intention and shall afford him an opportunity of submitting representations, if any before transmitting such representations, with his observations to the commission, or if the officer does not avail himself of the opportunity to submit representations before a date specified by the Chief registrar (which date shall allow a reasonable interval for the purpose) he shall report the fact to the Commission”

While the Civil Service Regulations Regulation 40 (1) and (3) which provision is impairi materia with that of the JSC regulations provides thus-

“40 (1)where a public officer holds an appointment on probation and the Head of department at any time during the period of probation is of the opinion that the officer’s appointment should be terminated, the head of department shall, subject to paragraph (3) of this Regulation, make a recommendation to the Commission accordingly, if the officer is in category 1 or 2, or terminate the appointment if the officer is in category 3.

(3) Where the Head of Department proposes to recommend to the Commission or to decide, as may be appropriate to the category of the officer concerned, that the appointment on probation of that officer should not be confirmed but should be terminated, the Head of department shall inform the officer of this intention and shall afford him an opportunity of submitting representation, if any, before making his decision, or transmit such representations with his observations to the Commission, accordingly as is appropriate, or ,if, in any case where the head of department proposes to make recommendations to the commission as aforesaid, the officer does not avail himself of the opportunity to submit representations before a date specified by the head of department (which date shall allow a reasonable interval for the purpose) he shall report the fact to the Commission”

It is a trite position of the law that where there are different statutes regulating an employment, it must be read holistically together and not in part or in isolation so as not to render any provision or term superfluous, ambiguous or meaningless. See R.T.E.A.N. & Ors v. Ajewole & Ors [2016] LPELR -41271CA. In consideration of the issue at hand, there is nowhere in my respectful view, paragraphs (b) and (c) of exhibit IK1, can be read, without reference to and anchoring it on the above two regulations stated to be binding on the parties. It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it. Therefore, a community reading of the two regulations and the rules guiding the claimant’s employment, evince that before the employment of the claimant although, on probation can be terminated she must be notified by either the Chief registrar or the Head of her department of the employer’s intention to terminate her appointment and be given an opportunity to make representation before such an appointment can be terminated. I observed from the final written address of the learned claimant’s counsel, where he argued that claimant is a confirmed employee in view of her name having been published in the State official gazette. If I may ask, was the claimant’s employment confirmed by the publication in the State official gazette before the termination of her appointment? It is evident in claimant’s letter of employment that she was employed on the 23rd of November, 2015 as a Senior Registrar 1 Grade level 12 step 2 (exhibit IK1), she was converted on the 30th of March, 2016 to the position of a Senior Magistrate II Grade level 13 with effect from the 1st of January, 2016 sequel to the plenary session held by the 1st defendant on the 29th of March, 2016 (Exhibit IK2). The defendants have argued supra that under no circumstance will a probationary officer who has not spent up to the requisite two years be converted to the position of Magistrate. This argument accords with sound reasoning as it is clear that within three months of the appointment of the claimant into the 1st defendant as Senior Registrar 1, her appointment was converted to the position of a Magistrate, and this can never be the case in an employment statutorily governed. The claimant in defence stated that her employment was confirmed vide its publication in the Ondo State Official Gazette. It is the law that he who asserts must prove the existence of such facts asserted and in this instant case, I find no documentary evidence in this regards credibly substantiating that the claimant’s appointment was duly confirmed. She failed to tender any letter of confirmation before the Court. Also the defence of claimant that her appointment was duly confirmed by the publication of her name in the defendants’ official gazette for the year 2017, is misplaced, this is because by exhibit IK6, id est the Ondo State Official gazette 2017, which is titled “ New appointment and other staff matters”, and was equally stated thereon, that it was for general information, at page 7 has the claimant’s name listed as number 191 as a Senior Registrar 1, GL 12 Step 2 and stated her date of appointment as 1/12/15 and nothing more. Noteworthy is the fact that the claimant’s name was published for the first time in the official gazette of the State as an appointee of the Judicial Service of Ondo State and not as a confirmed staff of the 1st defendant. It is in the light of this that I discountenanced claimant’s position that by the publication of her name in the official gazette, she was a confirmed staff or that the publication should be deemed as having confirmed her appointment. To do so is to add the Court’s words to the plain status and meaning/purport of an official gazette. Learned claimant’s counsel also argued by paragraph 3.04 of his final written address, that the provision of the civil service Rule 02303 which is to the effect that name of a confirmed staff should be submitted on monthly basis to the civil service commission for gazette publication is equally misinterpreted. I say so in view of the unambiguous provision of Rule 02303 supra, which presupposes that the name of a confirmed staff is to be sent for publication, this cannot be overstretched to mean that the publication of names of new appointments in the government service confirms those appointment as of cause. Exhibit IK6, is specific in its intent and content, this Court, I wish to reiterate, is not allowed to read into exhibit IK6, what it does not purports. Also, Rules 02302 of the Civil Service Rules, provides that to be eligible for confirmation in the permanent establishment, an officer on probation is required to pass the prescribed examination appropriate to his appointment. Learned claimant’s counsel however, deliberately failed to espouse that part of the Rules cited by him, this is in view of the fact that claimant clearly could not canvass any evidence either oral or documentary to prove that she sat for and pass the required Examination for which her appointment ought to have been confirmed. There is nothing on record evincing so and the publication of her name in the official gazette is a mere notification to the general public of the names of its newly appointed staff at the period so published and should not be misinterpreted or deemed as confirmation of appointment of the claimant by the 1st defendant. It is in the light of all stated in respect of the publication of the name of the claimant in the official gazette, that I find and hold that the publication of the claimant’s name in the Ondo State Official gazette is to inform the general public officially that claimant has newly been appointed as a Senior Registrar 1 and nothing more

Now, having held supra, that claimant’s appointment was not confirmed before her termination, what is the procedure for termination of her employment? I have taken the liberty earlier in this judgment of reproducing the procedure for termination of an employment under probation as stated in the contract regulating claimant’s employment. A holistic or community reading of the contract of claimant’s employment evinces that before the termination of claimant’s employment she is to be given a notice of the 1st defendant’s intention to terminate her employment, to enable her make representation as stated above. It is on record of Court that claimant’s appointment was terminated vide exhibit IK4, dated 8th November, 2017. She was suspended on the 14th of September, 2017 as stated supra, prior to her termination. I find no expression or statement in her suspension letter connoting a notice of the 1St defendant intention to terminate her appointment. This Court in the case of Fasilat Olayinka Lawal & anor v. Dr O. O. Odunubi, (the Medical Director, National Orthopaedic Hospital) and 5 ors [2015] 57 NLLR (Pt 195) 227. Per Hon. Justice Kanyip B.B held that; “Where an employee’s appointment is under the statute and not under a common law contract of master and servant, the employee’s appointment even though on probation cannot be terminated without fair hearing. The employers are expected to comply with the procedure for termination as provided by the Public Service Rules.” See also FMC, Ido-Ekiti v Alabi [2012] 2 NWLR (Pt. 1285) 411 CA. The import of the above provisions is that before the employment of an employee on probation as in this instance is terminated, he/she must be afforded an opportunity of submitting representation before the defendants can terminate the appointment. In this instant case and from the record of the Court, the claimant vide Exhibit IK3 was issued a letter of suspension dated 14th of September, 2017 and her employment terminated on the 8th of November, 2017. There is nothing on record evincing the fact that she was invited by the defendants to make representations in defence of the allegation against her, rather her employment was terminated without compliance with the position of the law governing her employment. It is the position of the law that a breach of a statutory provision in the procedure for the determination of an employment renders the act ultra vires and void. This is because, the appointment of the claimant cannot be determined other than in the way as prescribed and agreed to by parties as in this instance, and any manner of termination that is inconsistent with the provision of the statute or conditions of appointment captured above in this judgment is null and void. See the cases of Federal Polytechnic, Ede & Ors v. Alhaji Lukeman Ademola Oyebanji [2012] LPELR 19696 CA; Osuah v. Edo Broadcasting Service [2005] AFWLR (Pt. 253) 773 @ 787.

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 Senior 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, supra. It is trite that the onus of proving this assertion or this burden of proof lies on the defendant to so prove. It is the established and firm position of law that the burden of proof lies on the party who alleges the affirmative. The burden of proof lies on the party who will fail in the case where no evidence is given. The imperative position of the law remains that he who asserts must prove and when he fails to prove, he cannot be entitled to judgment as civil cases are decided on preponderance of evidence. See Section 131 of the Evidence Act, 2011; Fabian Tommy Osukpong & 3 ors v Raymond Etukudo Eduoika & Anor [2016] 1 NWLR (Pt. 1493) 329; Al Bishak v. National Productivity Centre & anor, supra;  N.N.P.C v. Lutin Investments [2006] 1SC (Pt III) 49, [2006] 2 NWLR (Pt.965) 506. The defendants have vide paragraphs 23-24 of their statement of defence pleaded that the claimants appointment to the Position of Magistrate was done by one Chief S.A Akinrinsola without the knowledge, consent and authority of the 1st defendant. A keen perusal of Exhibit IK1, Offer of Appointment to the Pensionable Establishment dated 23rd of November, 2015 and the letter of Conversion dated 30th of March, 2016 exhibit IK2, discloses that it was signed by one Chief S.A Akinrinsola. Now an appropriate question to ask is have the defendant proven on a balance of probability that the appointment of the claimant was done irregularly and ultra vires the powers of Chief S.A Akinrinsola who was the 1st Defendant’s Secretary at the material time claimant was appointed? In answering this question I must state that the defendants in establishing their case failed to call as a witness the said Chief S.A Akinrinsola to substantiate their claims. It is plain on exhibit IK2, that claimant’s conversion was effected at the plenary of the 1st defendant. DW on record who is also the current Secretary of the 1st defendant admitted on record that decisions of the 1st defendant are taken at its plenary and same communicated to third parties by the Secretary. The functions and duties of the Secretary of the 1st defendant are as stated by Regulations 4 and 5 of the JSC Regulations, which includes functions that may be assigned to him by the 1st defendant and carrying out other functions assigned to the 1st defendant by the 1999 Constitution or under the Regulations. It is therefore, beyond any argument that by issuance of exhibit IK2 and signing same by the Secretary the approval of the 1st defendant at its plenary the conversion of the claimant to the post of Senior Magistrate 11 is within his scope of statutory functions. The defendants have neither faulted this position of the law in any way nor tendered any document to the contrary of the said Chief Akinrinsola’s function under the law. They equally failed to contradict the fact that the 1st defendant at its plenary of 29th March, 2016 approved the conversion of the claimant to the post of Senior Magistrate. It is the law that in the absence of any evidence given in respect of an averment in a pleading, such averment will be deemed abandoned. This is simply because pleadings do not constitute or amount to evidence. See the cases of Ayanwale v Odusami [2011] LPELR 8143 SC; Inua v First Bank of Nigeria Plc [2016] 2 NWLR (Pt. 1495) 89 CA. It is in the light of all stated that I find that the defendants have failed to prove that claimant’s conversion/appointment as a Senior Magistrate 11 was obtained irregularly. It is in consequence of all stated above in this judgment that I find and hold that the claimant’s letter of termination dated 8th of November, 2017 is unlawful, null and void and thus set aside.

On issue three, it is claimant’s contention that she is entitled to be reinstated to her position both as an employee of the 1st defendant and as a Magistrate Grade II forthwith or such other cadre or position where her colleagues/contemporaries are at the time of the judgment of this Court and also that she is entitled to be paid forthwith all her arrears of salaries, allowances and entitlements payable to her colleagues/contemporaries as at the date of judgment all of which the defendants have deprived the claimant by virtue of the purported termination of appointment. Having held that the Claimant’s termination was unlawful, it is trite that when the termination of an employment with statutory flavour has been declared unlawful, the effect is as if the employee never left the said employment and as such the employee is expected to be placed back into his position that is to status quo ante bellum. See the cases of Bassey v. Akwa Ibom & Ors [2016] LPELR-41244, Effiong v. Ebong [2006] 18 NWLR (Pt. 1010) 109 CA. It is in the light of this, that I find that the Claimant’s is entitled to be reinstated back to her position as a Magistrate Grade II and entitled to be paid all her arrears of salaries, allowances and entitlements payable to her colleagues/contemporaries as at the date of judgment to date of her reinstatement.

 

With regards to the claimant’s claim for perpetual injunction restraining the defendants whether by themselves, agents or privies from further interfering with or impeding the claimant’s functions as a Magistrate and from further terminating the claimant’s employment. The law in labour jurisprudence is that, it would be iniquitous to attempt as the claimant would want the Court to do in this case, to fetter the rights/obligations of an employer under the contract with injunctions. The rights and obligations of parties under a contract of employment cannot be impugned by the Court. Put in another way, parties’ right to determine their relationship under the contract of an employment cannot be restrained by the Court. This is in view of the fact that both parties in an employment contract have the right to walk out of the relationship anytime they so wish, but that has to be done of course in accordance with the terms of the contract. It goes without saying that in view of the rights and obligations of parties to the contract, this Court cannot restrain the exercise of the right of any of the parties in this case under the contract. I therefore, find claimant’s claim for injunction lacking in merit and discountenanced same.

It is the claimant’s claim that the defendants should pay to her the sum of Two Million Naira (N2,000,000.00) general damages for the emotional trauma, disorder and ridicule which she suffered by the unconstitutional, illegal, unlawful, oppressive and null conducts of the defendants’ termination of her appointment. First, it is trite that when a person whose employment is unlawfully terminated is reinstated, he/she cannot get both re-instatement and damages at one and the same time, it must be one of the other he stands to enjoy see Kabelmetal Nig. Ltd V. Ativie [2002] 10 NWLR (Pt. 775) 250 CA. The law frowns at double compensation in award of damages to a successful litigant; the award of damages in a wrongful or unlawful termination of employment is designed to putting an injured party at the position he ought to be before the breach of contract occurred, Texaco Nig. PLC v. Alfred Adegbile Kehinde [2001] 6 NWLR (Pt. 708) 224. Also, the law is trite that no compensation/ damages can be claimed for injury done to an employee’s feelings by his termination/dismissal. Such claims are not recoverable in a suit for wrongful termination of employment. See the case of Shenaike v Bras Ventures Limited [2016] 64 NLLR (Pt. 225) 45. Moreso, in this case the claimant has failed to substantiate her claim with any credible evidence. It is in this light that I find the Claim for general damages for the sum of Two Million Naira (N2, 000, 000) Naira as being frivolous and thus dismissed. I so hold.

 

In conclusion, it is obvious that the claimant’s claims succeed in part. For the avoidance of doubt, I declare and order as follows;

  1. That the suspension of the claimant dated 14th of September, 2017 is lawful.
  2. That the claimant was on probation at the time her employment was terminated.
  3. That the termination of the Claimant’s appointment from the 1st defendant is unlawful.
  4. The Letter of Termination dated 8th November, 2017 is hereby set aside.
  5. That the 1st Defendant is ordered to forthwith reinstate the Claimant back to its employment, and be paid all her arrears of salaries, allowances and entitlements payable to her colleagues/contemporaries as at the date of judgment.
  6. That claimant’s claims 6, 7 and 8 fail.

 

Judgment is entered accordingly

 

                                   

                                     Hon. Justice Oyewumi O.O

 

                                               Presiding Judge

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