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MOHAMMED SALISU -VS- NIGERIA NAVY & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON WEDNESDAY 18TH DAY OF SEPTEMBER, 2019

       BEFORE HIS LORDSHIP: HON. JUSTICE  SINMISOLA  ADENIYI

SUIT NO: NICN/KD/55/2017

BETWEEN:

MOHAMMED SALISU…………………CLAIMANT

AND

  1. NIGERIAN NAVY
  2. CHIEF OF NAVAL STAFF…………..DEFENDANTS

 

J U D G E M E N T

The Claimant commenced the instant action vide a Complaint and Statement of Facts filed on 31/10/2017 wherein he claims against the Defendants the reliefs set out as follows:

  1. A declaration that the dismissal of the Claimant by the Defendants is unconstitutional, null, void and of no effect whatsoever.
  2. An Order directing the Defendants to reinstate the Claimant to his last rank of Seaman.
  3. An Order directing the Defendants to pay the Claimant all his salaries, emoluments and other entitlements from the date of his purported dismissal till the date of his reinstatement.
  4. The sum of N5,000,000.00 (Five Million Naira) only for the wrongful dismissal of the Claimant from the service of the 1st Defendant without following due process.
  5. Cost of Action.

Alternatively:

The sum of N10,000,000.00 (Ten Million Naira) only being damages for the wrongful dismissal of the Claimant as a Seaman.

  1. The facts culminating in this suit, as garnered from the Statement of Facts, in a nutshell, is that the Claimant was a seaman in the service of the 1st Defendant. While in service, the Claimant was alleged to have been absent from duty without leave. The Claimant contends that he was remanded on board for thirty – five (35) days with hard labour for the alleged offence. He further contended that after being remanded, he was again charged with the same offence and was summarily dismissed from the Nigerian Navy.
  2. The Defendants joined issues with the Claimant. Their contention, by their Statement of Defence filed on 05/01/2018 is essentially that the dismissal of the Claimant from the Nigeria Navy by the Commanding Officer was proper and in accordance with the Law.

The Claimant did not file a Reply to the Defendants’ Statement of Defence.

  1. At the plenary trial, the Claimant testified in person and called no witness. He adopted his Witness Deposition on Oath and tendered four (4) documents in evidence as exhibits to support his case. The case of the Claimant was closed after being cross – examined by the learned Defendants’ counsel.

The Defendants in turn called a sole witness, one Ikems Halima, a litigation clerk in the Office of Director, Legal Services of the Naval Headquarters. In like manner, she adopted her Witness Deposition on Oath and no document was tendered as exhibit. The witness was also cross – examined by the learned Claimant’s counsel.

  1. Thereafter, parties, through their respective learned counsel filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.

In the address filed on 28/02/2019, the Defendants’ learned counsel, Sabo Samaila, Esq., raised two issues as having arisen for determination in this suit, namely:

  1. Whether this Honourable Court can exercise its jurisdiction to hear or adjudicate on this matter that is stature barred?
  2. Whether the Claimant is entitled to the reliefs sought considering the gravity of offence committed by the Claimant in this suit.

In the address filed on 04/04/2019, by Safiya Mohammaed Esq., of counsel for the Claimant, he adopted the issues as raised by the learned Defendants’ counsel.

I should note at this point that in spite of the service of the hearing notices, the learned Defendants’ counsel refused and/or failed to attend Court to adopt his written address. Therefore, pursuant to Order 45 (7) of the Rules of this Court, the said written address was deemed adopted on 14/06/2019 and the case was adjourned for judgement.

  1. From my appraisal of the facts of this case set out in the foregoing, the question that seems to me to have arisen for resolution in the present suit can be distilled as follows:

“Whether the Claimant clearly established that the termination of his appointment from the employment of the 1st Defendant was unlawful to entitle him to the reliefs sought in this suit.”

In proceeding to determine this suit, l have had a good privilege of the written submissions of respective learned counsel for the contending sides. I shall endeavor to make reference to their submissions as l deem necessary in the course of this judgement.

  1. The first port of discourse is the determination of the issue of jurisdiction raised by the learned Defendants’ counsel in his written address. It is settled law that the issue of jurisdiction is of such a fundamental nature that once it is raised it must be considered and disposed first since any adjudication without jurisdiction would amount to a nullity. See A.N.P.P. & Anor Vs P.D.P & Ors [2006] LPELR 7588

In his oral submission, the learned Claimant’s counsel had argued that the issue of statute bar must be specifically pleaded as a special defence and he therefore urged the Court to discountenance the objection. With due respect to learned Claimant’s counsel, this argument is misconceived. The law is well-settled that a question of jurisdiction can be raised anyhow and at any stage of the proceedings. It can even be raised for the first time on appeal. See Enugwu Vs Okefi [2003] 3 NWLR (Pt 650) 620; Akere & Ors Vs Governor of Oyo State & Ors [2012] LPELR 7806. Therefore, the objection on jurisdiction as canvassed by the Defendants without it being pleaded is competent.

  1. Now, the contention of the Defendants on the issue of jurisdiction is that the limitation law, that is, Section 2 (a) of the Public Officer’s Protection Act 2004 (POPA) caught up with the suit, in that the Claimant commenced the action after the time permitted for filing an action against the acts of a public officer complained of had lapsed. The Defendants’ counsel argued that, the Claimant’s cause of action as disclosed in the Statement of Facts arose on 12/12/2014, the date the Claimant was served with the Defendants’ reply to the Claimant’s letters of appeal for reinstatement.

Citing inter – alia the cases of Eboigbe Vs NNPC [1994] 5 NWLR (Pt 347) 649; A. G Lagos State Vs Dosunmu [1989] 3 NWLR (Pt 111) 552; Etuk Vs Nkop NWLR (Pt 984) 81; Olagunju & Anor Vs PHCN Plc [2001] LPELR 2556, the Defendants’ learned counsel further submitted that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Learned counsel submitted further that the action is statute barred having been instituted on 31/10/17 which was outside the three (3) months allowed by the POPA that is, from the date of the accrual of the cause of action. He finally urged the Court to dismiss same for want of jurisdiction.

  1. The principles that guide the Court in determining whether an action is statute barred are well settled and well too known. These principles have also been adequately captured and canvassed by learned counsel on both sides in their respective written addresses. Without having to recapitulate these principles, it suffices to restate that the overriding factor or consideration is that the essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute-barred if legal proceedings are not commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and thus could not give rise to a cause of action. See Yare Vs National Salaries, Wages and Income Commission [2013] LPELR 20520 (SC)
  2. Now, I should remark that the authorities of Egboigbe Vs NNPC (supra); Olagunju & Anor Vs PHCN (supra) relied upon by learned counsel for the Defendants to convince this Court that the Claimant is totally barred from proceedings against the Defendants who are public officers no longer represent the current or correct position of the law on the issue. This is in view of the more recent decision of the Apex Court in the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors Vs Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 at 270 which is applicable to the circumstances of the present case.

The current position of the Apex Court per Ariwoola JSC at Page 271 is stated as follows:

“I have no slightest difficulty in holding that the Appellants are not covered by the provisions of the Public Officers Protection Act as to render the Respondents’ action statute barred. In sum, I hold that the learned Justices below are right in holding that the Appellants do not enjoy the umbrella of Public Officers’ Protection Law in the contract of service involving the Respondents…”

(Underlined portions for emphasis)

  1. It is perhaps significant to state that by reviewing the previous position of law as it relates to the application of the POPA, it is the view of this Court that it is in order to prevent the untold hardship inherent in the application of the POPA that precipitated the current position that the POPA does not apply to or does not provide a shield for public officers and/or institutions from liability for their acts.

Therefore, being the most recent decision of the Apex Court on the application of the POPA to employment contracts, the contention by learned counsel for the Defendants that the Claimant’s suit is incompetent on the ground that it is statute barred no longer represent the current legal position. I so hold.

Without any further ado, the result is that, the issue of jurisdiction raised by the learned Defendants’ counsel although well taken is unsustainable and same is accordingly discountenanced.

  1. I shall now determine the issue whether the Claimant clearly established that the termination of his appointment from the employment of the 1st Defendant was unlawful to entitle him to the reliefs sought in this suit.

The relevant testimony of the CW1, the Claimant, is to the effect that he joined the 1st Defendant as an ordinary seaman in 2001. He served in the Calabar, Sapele, Ojo and Ohowey offices of the 1st Defendant. The Claimant further testified that the last place he served was at Calabar before he was posted to Lagos; that his salary for the months of January 2010 to April 2010 was not paid and that he had to travel to Calabar to obtain his emolument form to process the payment of his outstanding salaries. He further testified that he sought and obtained the approval of his officer- in – command (OIC), Sub Lt Lawal before he travelled to Calabar.

The Claimant further testified that he was alleged to have committed the offence of absence without leave and that he served the punishment of being on board for thirty – five days with hard labor for the alleged offence. He also testified that after serving the punishment, he was instructed to appear before the Commanding Officer Ojo, Lagos and that he was subsequently dismissed.

  1. The Claimant testified further that he has not been paid all his entitlements after he was dismissed; that he caused his solicitors to write to the Defendants to demand for the payment of his entitlements and that the Defendants replied his solicitors. The Claimant’s solicitors’ letters dated 11/05/2010, 09/05/2012 and 18/06/2014 and the Defendants’ reply dated 12/12/2014 were admitted in evidence as Exhibit C1, Exhibit C2, Exhibit C3 and Exhibit C4 respectively.

As further garnered from the testimony of CW1, his grouse against the Defendants is that he was not given fair trial and that his dismissal after being punished for the same offence amounts to double jeopardy which violates his constitutional rights.

Under cross-examination by the Defendants’ learned counsel, the Claimant admitted that he did not obtain the permission from the relevant authorities before he travelled to Calabar. He further testified that the emolument form which he travelled to collect from Calabar can be obtained from Lagos where he served.

  1. The Defendants, on the other hand, disputed the claim of the Claimant. The testimony of the sole witness DW1, Writer Ikems Halima is to the effect that the Claimant was charged for the offence of absence without leave that is, embarking on a trip to Calabar without permission. She further testified that whenever the Defendants issued leave of absence, the leave of absence is documented as an official document. The DW1 also denied the fact that the CW1 was remanded for 35 days and that the Commanding Officer is statutorily empowered to summarily dismiss the CW1.
  2. As it is well settled, the general principle is that where the conditions for appointment or determination of contract of service are governed by the pre-conditions of an enabling statute, so that a valid appointment or determination is predicated on satisfying such statutory provisions, such contract is one with statutory flavour. Oloruntoba-Oju Vs Abdulraheem [2009] ALL FWLR (Pt 497) 1 at 42; Olaniyan Vs University of Lagos [1985] 2 NWLR (Pt. 9) 599

The contract is determinable not by the parties, but only by statutory pre-conditions governing its determination See Fakuade Vs O.A.U.T.H [1993] 5 NWLR (Pt. 291) 47; Idoniboye-Obu Vs N.N.P.C. [2003] 1 SCNJ 87 at 111.

There is no dispute between the parties that the Claimant was employed by the 1st Defendant. There is also no contention on the fact that the 1st Defendant is an establishment of statute that is, The Armed Forces Act Cap A20, Laws of the Federation of Nigeria 1990 (as amended) – (AFA).

It is also settled law that an employee who alleges wrongful termination of employment or wrongful dismissal has the onus to prove his claim.  See Morohunfolu Vs Kwara State College of Technology [1990] 4 NWLR Pt 145 Pg 506

  1. As I had earlier stated, the Claimant in the instant case have sought from this Court, among others, an order for immediate re-instatement and the payment of all salaries and allowances due to him after his dismissal.

In employment founded by statute, the staff cannot be validly removed from the employment unless the provisions provided in the statute for removing the staff is followed strictly. See Adeniyi Vs Governing Council of Yaba College of Technology [1993] 6 NWLR (Pt. 300) 426; Oloruntoba-Oju Vs Abdul-Raheem (supra) at 42.

The general principles guiding the proof of a claim for termination of employment have remained sacrosanct. For the Claimant to succeed in his claim, he must prove that the Defendants did not comply with the procedure stipulated by law for his removal. The case put forward by the Claimant from his evidence is that due process was not followed by the Defendants in dismissing him from service and the law requires him to prove his case. It is trite that the duty to prove the wrongfulness or nullity of the summary dismissal rests with the Claimant, not the Defendant. See Ziideel Vs RSCSC [2007] 3 NWLR (Pt. 1022) 554 SC, Morohunfolu Vs Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 SC, Ningi Vs FBN Plc [1996] 3 NWLR (Pt. 435) 220, Katto Vs CBN [1999] 6 NWLR (Pt. 607) 390 SC.

  1. Now, the Claimant’s testimony is that he was alleged to have committed the offence of absence without leave and that after he was punished by being on board for 35 days with hard labor he was summarily dismissed by the Commanding Officer.

Contrary to the case put forward by the Claimant, the evidence on the record of the Court by the Defendants is that the Claimant was not remanded for 35 days as alleged but that he was charged and summarily dismissed by the Commanding Officer who had the authority and power to dismiss him. Furthermore, the Claimant had admitted under cross – examination that he did not obtain approval for his leave of absence to travel to Calabar. This explains the fact that no document was tendered in prove of his earlier claim that he sought and obtained approval before he embarked on his journey. The Claimant did not establish that he was remanded in the 1st Defendant’s custody before he was dismissed from service.

It is trite that mere averment in pleadings without proof by evidence of the pleaded facts cannot take the place of the proof required by law and that pleadings are not a substitute to evidence. – See Kalio Vs Woluchem [1985] 1 NWLR (Pt 4) 610; Okagbue Vs Romaine [1982] 5 SC 133; Adegbite Vs Ogunfaolu [1990] 4 NWLR (Pt 146) 57.

In the present case, the Claimant who pleaded that he was remanded in the 1st Defendant’s custody for 35 days which was specifically denied by the Defendants has the burden of adducing oral evidence to prove his assertion

I hold the firm view that the Claimant did not establish or prove that he was remanded by the Defendants for 35 days. In other words, the Claimant has failed to discharge the burden required by law.

  1. Now, the question to determine is whether the Claimant was lawfully dismissed and whether his claims thereon for his reinstatement and unpaid salaries can be granted by this Honourable Court?

Learned Claimant’s counsel in arguing this issue referred to Exhibit C4 and submitted that the Claimant, was tried under Section 59 (a) AFA. He further argued that there is no record that the Claimant was tried and convicted by a Court martial before he was dismissed as stipulated in Section 59 (a) AFA.  Citing the provision of the said Section 59 (a), learned Claimant’s counsel further submitted that the punishment for the offence of absence without leave alleged to have been committed by the Claimant is: “imprisonment for a term not exceeding two years or less punishment”. Learned counsel for the Claimant argued that by the AFA (supra) the punishment of dismissal from service is awarded to officers who were tried and were convicted by Court martial. He finally submitted that the Claimant was unlawfully dismissed from the service of the 1st Defendant as the due process was not followed by the Defendants.

The submission of the learned Defendants’ counsel on the other hand is that the Defendants complied with the procedures for dismissing the Claimant as stipulated under Section 116 (c) (i) AFA

19. In view of the relevance of Section 59 (a) and Section 116 (1) (c) (i) AFA, I take liberty to reproduce the salient portions of the sections.

Section 59 (a)

“A person subject to service Law under this Act who:

a. absent himself without leave; or

b. Persuades or procures any other person subject to service law under this Act to absent himself without leave, is guilty of an offence under this section and liable on conviction by a Court Martial, to imprisonment for term not exceeding two years or any less punishment provided by this Act”

Section 116

“(1) Subject to the provisions of this section, a warrant or petty officer, non-commissioned officer, soldier, rating or aircraftman who is charged with an offence which may be summarily tried under Part XIV of this Act, may be summarily tried and punished to the extent permitted and in accordance with the following provisions of this section by the officer in command of the unit, ship or establishment to which that person belongs either at the time of the commission of the offence or at the time of the trial of the offence, that is-

(c)

Where the accused is below the rank of warrant officer class one or chief petty officer, the battalion commander or his equivalent may summarily deal with the charge by either dismissing the case or awarding any of the following punishments, that is-

(i) dismissed regiment to the rank of corporal, able rate or below…”

(Underlining for emphasis)

Part XIV of the AFA provides for trial procedure and Section 124 thereof deals with charges or offences to be dealt with summarily or by Court martial. Of particular relevance to the instant case is Section 124 (1) and (6) of the AFA which provides that a Commanding Officer of a battalion (such as the Claimant’s unit) has the power to summarily try a service personnel alleged to have committed any offence except offences under Section 124 (6) (a) of the AFA.

Section 124 (1) provides:

“After investigation, a charge against an officer below the rank of lieutenant colonel or its equivalent or against a warrant or a petty officer may, if an authority has power under this provision of this Part or Part XXXIII to deal with it summarily…”

The offence of absence without leave under Section 59 of the AFA is not listed as one of the offences which shall not be summarily dealt with by a commanding officer under Section 124 (6) (a) of the AFA.

20. The learned counsel for the Claimant had made heavy weather on the interpretation of Section 116 of AFA as it relates to the punishment of dismissal that was awarded by the Commanding Officer against the Claimant. The learned Claimant’s counsel submission is that Section 116 (1) (c) (i) AFA only empowers the Commanding Officer to “dismiss regiment to the rank of corporal, able rate or below” and that punishment under the section does not include dismissal.

My understanding of the Section 124 (1) and Section 116 (1) (c) (i) when read together is that the Commanding Officer has the power to dismiss offences not listed under Section 124 (6) and that for all other offences not listed under Section 124 (6), the punishment  are prescribed under Section 116 (c) (i) AFA. To put it differently, by Section 124 (1) AFA, the Commanding Officer has power to summarily dismiss the Claimant for the offence of absence without leave which was not listed under Section 124 (6). I so hold.

21. The learned Claimant’s counsel had tried strenuously to convince this Court in his written Address that the Claimant was not given fair hearing in the proceedings leading to the termination of his appointment. There is however no proof on record to support learned Claimants’ submission other than the allegation made. It is imperative at this point to restate the trite position of law that no amount of brilliance in a written Address can make up for the lack of evidence; a written Address cannot be a substitute for evidence. Elumeziem & Ors Vs Amadi [2014] LPELR 22459; Ekpeyong Vs Etim [1990] 3 NWLR (PT 140) 594

22. In the circumstances therefore, I hold the firm view that the Claimant has not established the fact that he was unlawfully dismissed from the service by the Defendants. Based on the foregoing therefore, I am of the firm view that the Claimant’s dismissal was not unlawful. I so hold.

The Claimant also claims for salaries, allowances and the alternative claim for damages. I am also of the view that these reliefs cannot be granted since these reliefs are hinged on the wrongfulness of his dismissal.

23. In the final analysis, what the Court had demonstrated, through the evidence led on record and the totality of the circumstances of this case is that the dismissal of the Claimant from service by the Defendants is valid. The final result therefore is that the case of the Claimant must and hereby fails in its entirety. It is hereby accordingly dismissed.

Parties are to bear their respective costs.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

18/09/2019

Legal representation:

Safiya Muhammed Esq for Claimant

Sabo Samaila Esq. for Defendant
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