IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MARCH 20, 2019 SUIT NO. NICN/LA/288/2013
BETWEEN
Mr Eluyoye Joseph Oyewole – Claimant
AND
1. Lagos State Government
2. Attorney General Lagos State – Defendants
REPRESENTATION
Lanre Ogunlesi SAN, with Adeniyi Quadri, for the claimant.
A. S. Odugbemi, Assistant Chief State Counsel, with Mrs Ronke Oluokun, State Counsel, for the defendants.
JUDGMENT
1. The claimant filed this case on 4th June 2013 against the defendants vide a complaint together with the accompanying statement of facts, list of witness, statement on oath, list of documents and copies of the documents. By the complaint and statement of facts, the claimant is praying for the following reliefs:
(i) A declaration that the 1st defendant is lawfully bound to follow and apply the disciplinary procedure prescribed in the Civil Service Rules which regulates the claimant’s contract of employment by (sic) the 1st defendant.
(ii) A declaration that the claimant cannot be validly and lawfully suspended or dismissed from the employment of the 1st defendant except in accordance with the disciplinary procedure provided by the defendant’s Civil Service Rules which regulates the claimant’s contract of employment by (sic) the 1st defendant.
(iii) A declaration that the 1st defendant’s letter of suspension with Ref No. SHMB/888/S.l/VOL.IV/109 dated the 29th of November 2005 purporting to suspend the claimant indefinitely from the employment of the 1st defendant contravenes the 1st defendant’s Civil Service Rules as well as the rules of natural justice and is therefore null and void and of no effect whatsoever.
(iv) An order setting aside the letter of suspension.
(v) An order directing the 1st defendant to pay to the claimant the sum of N2,013,494.17 being the sum total of the claimant’s salaries, allowances and annual leave bonus unlawful withheld during the period of the purported indefinite suspension which commenced in October 2005 to May 2009 i.e. three years ten months.
(vi) A declaration that the 1st defendant’s letter with Ref No. P20.056/8(DSD) dated 12th February 2013 but served on the 5th March 2013, purporting to dismiss the claimant from the employment of the defendant contravenes the 1st defendant’s Civil Service Rules, the provisions of the Constitution of the Federal Republic of Nigeria, the Evidence Act, as well as the rules of natural justice and is therefore null and void and of no effect whatsoever.
(vii)An order setting aside the letter of dismissal.
(viii) An order directing the 1st defendant to the immediately reinstate the claimant into the position of Higher Executive Officer (Accounts), Grade Level 08 of its civil service.
(ix) An order directing the 1st defendant to pay to the claimant salaries unlawfully withheld in the sum of N60,085.085.39 per month commencing from January 2013 until find judgment in this suit.
(x) Interest on the above sums at the rate of 20% per annum from each due date.
(xi) An order directing that the accrued interest component of the above sums be computed up to and including the final determination of this suit by the Honourable Court and the final payment by the defendant.
2. In reaction, the defendants filed their defence processes, which defence processes were amended by order of this court made on 12th November 2014. In reply, the claimant filed a reply to the amended statement of defence and an additional statement on oath.
3. At the trial, the claimant testified on his own behalf as CW and his frontloaded documents were marked as Exhibits C1 to C14. The defendants’ frontloaded documents were marked as Exhibits D1 to D7. Both sets of documents were tendered from the Bar in accordance with Order 40 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). At the close of the claimant’s case, the defendants did not open their defence despite the opportunities afforded for this. They were accordingly foreclosed upon the prayer of the claimant. The application of the defendants to reopen their case was not opposed and so it was granted on 29th June 2017. Unfortunately, even at this, the defendants still failed to lead their witness. They were then, and for a second time, foreclosed. Filing of final written addresses was accordingly ordered. Another application by the defendants to reopen their case was withdrawn by them on 6th February 2019; and parties went ahead to adopt their already filed final written addresses. The claimant’s final written address was filed on 30th November 2018, while the defendants’ was filed on 20th December 2018. The claimant’s reply on points of law was filed on 6th February 2019.
THE CASE BEFORE THE COURT
4. To the claimant, he is a civil servant who joined the civil service of 1st defendant on 5/4/83 as a clerical assistant on Grade Level (GL) 03. He rose through the ranks and attained GL 08 in 2001. In 2003 he was posted to the Central Pay Office (CPO) of the Health Service Commission (HSC) of the 1st defendant. In 2005, investigations led to the discovery that fictitious accounts had been opened in certain banks by officials of the 1st defendant and payments made to impostors through the fictitious accounts. A fact finding panel visited one of the banks used to perpetrate the fraud and certain officials were identified as having facilitated the fraud. A panel was constituted by the HSC at the time to investigate the matter. The claimant was arrested with others but the police investigation was to the effect that there was no evidence that linked claimant to the fraud. Similarly, the HSC panel did not come up with evidence of indictment against the claimant bar the omnibus observation that “those who are not directly involved are remotely connected somehow” (Exhibits C4 and D1). That contrary to Civil Service Rules (CSR) 04307, in September 2005 the claimant was sent on indefinite suspension, not interdiction as required by the CSR. Furthermore, the claimant was not paid any salary during the indefinite suspension in contravention of Rule 04311(a). By the suspension, the claimant was denied salaries and allowances for three years and 10 months totaling N2,013,493.17 despite the fact that he was to be reinstated. That this is contrary to Rule 04311(b). After series of petitions, meetings and negotiations, the claimant was reinstated into the Civil Service of 1st defendant by a letter of 14/7/09 (Exhibit Cl0) and redeployed to the Ministry of Works and Infrastructure of the 1st defendant. That series of Personnel Management Board (PMB) disciplinary meetings regarding the allegation of fictitious accounts and illegal withdrawal of funds took place. In particular on 24/11/10, the PMB exonerated the claimant from “any specific act of fraud or misconduct”. That in spite of this, the defendants continued to make the claimant undergo further disciplinary hearings where the allegations against claimant could not be substantiated with documentary evidence as specifically required by defendants. That on 5/3/13, he was served a letter of dismissal dated 12/2/13 which stated that the dismissal took effect from 22/11/12. That the claimant had been working till that date and was paid salary for December 2012. It is thus the claimant’s case that his suspension without pay and dismissal contravene the defendant’s CSR which regulates the claimant’s employment and the rules of natural justice.
THE SUBMISSIONS OF THE CLAIMANT
5. The claimant submitted three issues for determination, namely:
(i) Whether the indefinite suspension of the claimant without pay from 1st defendant’s employment is a contravention of the 1st defendant’s Civil Service Rules regulating the claimant’s employment.
(ii) Whether the claimant’s dismissal from the 1st defendant’s employment is a violation of the 1st defendant’s Civil Service Rules regulating the claimant’s employment.
(iii) Whether the defendants have established any allegation of misconduct against the claimant to justify his dismissal from 1st defendant’s employment.
6. For issue (i), The claimant referring to his letter of employment (Exhibit C1) and Okocha v. CSC Edo State [2004] 3 NWLR (Pt. 861) 582, Shitta Bey v. Federal Public Service Commission 1 SC 40 at 55-56 and Olaniyan v. Unilag and anor [1985] 1 NWLR (Pt. 1) 156 submitted that as a statutory employee subject to statutory regulation and whose conditions of employment is regulated by the Civil Service Rules, he cannot be suspended or dismissed unless the conditions are strictly complied with coupled with the observance of the rules of natural justice and for cause shown. That non-compliance makes such suspension or dismissal void; and in appropriate cases, re-instatement to the office or employment follows.
7. That the disciplinary procedure is regulated by Chapter 4 of the 1st defendant’s Civil Service Rules (CSR) 1982. By virtue of Rule 04101, disciplinary proceedings can be initiated in order to inter alia establish whether: “(a) his conduct in the matter has been, in any respect blameworthy”. That in this case, a panel was constituted to investigate the issue of fictitious accounts. The outcome of the investigation is recorded in Exhibits C4 and D1. that the claimant’s testimony before the panel is recoded at page 8 of Exhibit C4 and pages 31 to 32 of Exhibit D1. The panel’s observations are stated at page 37 of Exhibit D1. That part of the observation was that “Those who are not directly, involves (sic) are remotely somehow”. “The perpetrators capitalised on the weak internal control system of the Asst. Director of Account…” etc, referring to paragraph 17 of the claimant’s deposition of 4/6/13. That it was in the aftermath of the disciplinary hearing that the claimant was placed on indefinite suspension (Exhibit C5) and this was without pay, referring to paragraphs 21 and 23 of the claimant’s witness statement. That the CSR did not make any provision for such action or sanction; as such, the suspension meted out to him violated the CSR of the 1st defendant.
8. The claimant went on that the issue of suspension during disciplinary procedure is provided for under Rule 04307, to wit:
(a) When an officer’s conduct is under investigation and it is considered that the evidence available at the initial stage of such investigation does not warrant interdiction…but it is at the same time felt that in the public interest, he should not continue to discharge normal duties, he shall be sent on his annual leave.
(b) If at the expiration of his annual leave, the investigation has not been completed, the officer shall automatically proceed on interdiction on half pay if another assignment outside the scope of the investigation cannot be found for him.
(c) If an officer has no annual leave to his credit at the commencement of the investigation of his conduct, he shall be sent on interdiction straightaway if another assignment outside the scope of the investigation cannot be found for him.
Furthermore, that by Rule 04311:
(a) An officer who is under interdiction shall, subject to the provisions of rule 04314 receive such salary, not being less than half of his salary, or as the disciplinary authority shall think fit.
That the Supreme Court defined “interdiction” as the suspension of an interdicted officer from his lawful duties and placement on half pay, citing Garba v. FCSC [1988] 1 NWLR (Pt. 71) 499.
9. To the claimant, the defendants did not comply with any applicable provisions under Rules 04307 and 04311. That the defendants flagrantly breached the foregoing regulations when it placed claimant on “suspension indefinitely” (Exhibit C5) after the HSC PMB, which suspension lasted for all of three years and 10 months without pay. That the foregoing procedure adopted by the defendants is strange to the CSC Rules and, therefore, is perverse and arbitrary, citing AG, Kwara State v. Abolaji [2009] 7 NWLR (Pt. 1139) 199.
10. Furthermore, that the claimant was reinstated by virtue of Exhibit Cl0, referring also to paragraphs 9.6 and 9.7 of Exhibit C12. That by Rule 04311: “(b) If the disciplinary proceedings against such an officer result otherwise than in his dismissal, the whole of the salary withheld from him shall be restored to him when the final decision as to that result is taken”, referring to Effiong v. Ebong [2006] 18 NWLR (Pt. 1010) 109 and Government of Kwara State v. Ojibara [2006] 18 NWLR (Pt. 1012) 645 That despite the fact of reinstatement, the claimant was not paid salaries withheld during the indefinite suspension, citing ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169. The claimant then urged the Court to hold that this is a strong point in favour of the claimant’s reinstatement into service, which will be in accordance with the decisions of superior courts in this country.
11. On the issue of the implication of the limitation law regarding the claim for unpaid salaries during the illegal suspension, the claimant conceded that the general principle is that where the law provides for bringing of action within a prescribed period, in respect of a cause of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute. However, that there is an exception to this general rule, citing Hassan v. Aliyu [2010] LPELR-1357(SC), which relied on Lagos City Council v. Ogunbiyi [1969] All NLR 297 at 299 i.e. where the public officer concerned fails to act in good faith or acts in abuse of office or maliciously or with no semblance of legal justification. To the claimant then, where public officers (such as defendants) acted outside the scope of their authority or power, the limitation law cannot avail such officers, citing AG, Adamawa v. AG, Federation [2014] LPELR-23221(SC) and CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488. The claimant then urged the Court to hold that the defendants cannot rely on the limitation in the circumstance, there being no legal justification for the indefinite suspension of the claimant without pay; and then answered issue (i) in the affirmative, submitting thereby that his indefinite suspension without pay was a violent breach of the statutory provisions regulating his employment.
12. The claimant argued issues (ii) and (iii) together. The claimant first went into an excursion of the concept of dismissal. he then submitted that the genesis of his problems started with the discovery that fictitious accounts had been opened by duplication of salary accounts and illegal withdrawal of funds therefrom. Exhibit C2 is the query issued to him regarding the allegation. It required him to explain his role during the March 2015 “salary payment processing i.e. writing cheques, posting to the register, sorting salary schedules etc”. That Exhibit C2 was not about “duplication of accounts” or “withdrawal of funds” from such accounts; these are allegations of gross misconduct bothering on crime. That the issues for which the claimant was queried were not necessarily so. That he led evidence in Court to the effect that a panel was constituted by the HSC to investigate the matter. One of the terms of reference of the HSC panel was to identify culprits, referring to item number (ii) at page 2 of Exhibit C4 and NEPA v. El-Fandi [1986] 3 NWLR (Pt. 32) 884, which held that all that the employer is to establish to justify the dismissal or termination of the appointment is to show: (i) that the allegation was disclosed to the employee, (ii) that he was given a fair hearing, and (iii) that the panel believed he committed the offence after hearing witnesses.
13. To the claimant, the question of “fair hearing” and “belief” are objective and not subjective. That to justify the claimant’s eventual dismissal based on the PMB of the HSC, Exhibits C4 and D1, the defendants must show that in giving the claimant “fair hearing” they complied with the rules of natural justice and that their “belief” was based on cogent and credible evidence which inculpated the claimant, citing Mohammed v. Kano NA [1968] 1 All NLR 424 and Kotoye v. CBN [2001] FWLR (Pt. 49) 1600 at 1667. That Exhibits C4 and D1 are minutes of the PMB (disciplinary) meeting held at the HSC. At pages 2 and 3 of Exhibit D1, the Assistant Director, Personal Management briefed the PMB panel on his discovery when he visited some of the banks used to perpetrate the fraud. He gave details of modus operandi and mentioned names. That the claimant’s testimony before the panel is at page 8 of Exhibit C4 and pages 31 and 32 of Exhibit D1. The observations of the PMB panel are contained in paragraph 17 of the claimant’s deposition of 4/6/13, referring also to page 16 of Exhibit C4 and pages 36 and 37 of Exhibit D1. That the said observations were nothing but conjectures/speculations and unsupported assertions.
14. The claimant continued that the revelations in the aftermath of the alert from officials of Eko International Bank were that original payroll bank schedules were duplicated and manipulated; while the originals were sent to the banks of the officers of commission, the manipulated copy was forwarded to banks where the perpetrators already opened accounts by impersonating genuine names of high earning employees e.g. doctors, referring to pages 4 and 5 of Exhibit C4. That according to Exhibit D1 (page 3 paragraph 2) it was discovered at the LBIC, Tejuosho that eight different accounts were fraudulently opened at the bank by some people said to have been introduced by an employee of 1st defendant, Mr Tajudeen Awosanya (alias fine boy). That one of the eight mandate cards used for the fraudulent act has the picture of Mr Tajudeen Awosanya. He was said to have absconded on the day staff of the LBIC were invited to identify him as a culprit. That none of the cards was traced to the claimant. That going by pages 5 and 6 of Exhibit D1, the claimant worked under supervision of an Assistant Director of Accounts, Mrs Kassim, and one Mr Okuyemi. At page 6 of Exhibit D1, it will be seen that the head of variation was one Mr Jegede whose duty at the time was to collect salary schedules and analyse same. That the claimant worked under the supervision of all these officials. That the evidence of the Assistant Director of Accounts at page 7 paragraph 5 of Exhibit Dl showed how complicated the process was, involving Medical Director, Hospital Secretary, Internal Auditor and Variation Officer. That in the last paragraph of page 9 of Exhibit D1, the Permanent Secretary remarked that “it has been that there had been some lapses in the leadership of the Account and that people (staff) were not given specific assignment”.
15. The claimant proceeded that his interrogation is at pages 31 and 32 of Exhibit D1, the gist of which was about whether he could identify “…who made alterations on…vouchers”. He did not know, and stated that “All these vouchers were not altered at the CPO” (where he worked). That in paragraph 2 of page 11 of Exhibit D1, the meeting observed that a lot of staff (outside the CPO) in the last few months especially had their banks changed unsolicited through Oracle and that it seemed a deliberate act by staff of Oracle to perpetrate fraud. That the observations of the PMB are at pages 36 and 37 of Exhibit D1; and this is as stated by claimant in paragraph 17 of the statement on oath of 4/6/13. That in spite of the foregoing revelations and even though the panel observed that all officers in CPO were culpable, the claimant and two others were singled out for punishment maybe “as scape goats”. The claimant then submitted that the panel’s action in this regard was biased against him. For example, that the Assistant Director of Accounts on whose table the bulk stopped was only reprimanded (referring to Exhibit C6); and just like Miss Otunniyi, both were signatories to all cheques unlike claimant. That the PMB recommendation at page 39 Exhibit of D1 is thus: “All account staff in CPO at the Board Secretariat are to be dismissed from service for gross misconduct; evidence available revealed that they are all culpable and neglect. They are to be issued with letters of suspensions without pay”.
16. To the claimant, according to Rule 04501 of 1st defendant’s CSR, misconduct is defined as a specific act of serious wrongdoing susceptible of investigation and proof. It includes:
(i) Wilful act or omission or general misconduct to the scandal of the public or to the prejudice of discipline and proper administration of the State, Government e.g. corruption, dishonesty, drunkenness, false claims against the state Government etc.
The claimant referred to Nwobosi v. African Continental Bank [1995] LPELR-2121(SC). The claimant then asked what/where the ‘evidence available’ of ‘gross misconduct’ is against him to justify the recommendation for dismissal. That there was no scintilla of evidence to link him with “duplication of accounts” or “withdrawal of funds” to justify his dismissal on the ground of misconduct not to mention gross misconduct. That the report of the PMB, it would seem, formed the basis of the eventual dismissal of the claimant in 2013. That the question to ask is: what formed the basis of any “belief” which warranted the claimant’s dismissal in the absence of any inculpatory evidence? Could it then be said that the claimant was afforded “fair hearing” in the circumstance? The claimant cited NEPA v. El-Fandi (supra). That fair hearing means “fair trial”. The issue then is not whether the claimant was heard, but whether there had been a breach of natural justice i.e. whether there had been some failure to comply with the requirements of natural justice in the present case, citing Kenda v. Government of Malayar [1962] AC 322. That the right to fair hearing imposes an implied duty on each person to act fairly in all circumstances, citing Re H. K (an infant) [1967] 2 QB 617 at 630.
17. The claimant went on that he testified in paragraph 27 of the witness deposition of 4/6/13 that after reinstatement, he was served series of invitation letters to PMB disciplinary meetings; and in paragraph 28, he stated that one of such meeting was held on 24/11/10. Exhibit C12 is the minutes of the PMB meeting that was presided over by one Mr Akinwunmi Ambode. That it was also stated in paragraph 9.7 (page 8) that “the State Treasury Office (STO) conduct another PMB (Discipline) whereby the Health Service Commission (HSC) was to prove their (including Claimant’s) culpability by proving documentary evidence of the involvement of the three Accounts Officers (including Claimant’s) in the alleged case”. The record of the claimant’s interrogation is at pages 9 and 10 of Exhibit C12. The observation, conclusion and recommendation of the PMB are at paragraph 11.1 (pages 11 and 12) of Exhibit C12, referring also to paragraph 28 of the claimant’s witness deposition. That in paragraph 12.0 (page 12) of Exhibit C12, the PMB recommended thus:
(i) The Board recommended that the three officers should be immediately deployed back to the State Treasury Office which is the parent Office of the Officers.
(ii) The Board further recommended that in view of Paragraph 11, item(i) above which simply means that there were no documentary evidence that the alleged officers perpetrated the fraud, but the fraud was actually perpetrated by the Accounts Department of the Health Service Commission of which they are members. Hence the Board recommends that the three alleged officers be issued strong warning letter.
That the disciplinary proceedings did not unveil any conduct in respect of which the claimant could be held blameworthy as required by Rule 04101.
18. That this was the outcome of the PMB of the STO 1st defendant held on 24/11/10 after the claimant’s reinstatement. It was the correct reflection of all that transpired regarding duplications of accounts and illegal withdrawal of funds. There was no evidence for which the dismissal of claimant for gross misconduct could be justified as required by Rule 04501 and the rules of natural justice, citing UBA Plc v. Oranuba [2014] 2 NWLR (Pt. 1390) 1 and Udoh v. Civil Service Commission Akwa Ibom State & ors [2013] LPELR-21849(CA).
19. That more germane is the fact that the defendants have also woefully failed to present any evidence (proof) of misconduct i.e. that the claimant opened fictitious accounts, or illegally withdraw funds or even that he was inefficient. That this is so because the 1st defendant put in place regulations to guide activities on its accounts. It is titled the Lagos State Government Financial Regulations. Some of the pertinent provision are:
R109 (iii) The Accounting Officer shall be held personally pecuniarily responsible for all wrongdoings in his Ministry/Agency. However, this does not absolve any officer from liability in the performance of his duties.
R110 The term Sub Accounting Officer shall include the Director/Heads of Account offices in all State’s Agencies.
R115 Any Accounting Officer, Officer Controlling Expenditure, State Agencies Heads of Accounts, Pensions Pay Officer having financial monetary responsibilities directly connected with, or arising from his official duties, in so far as the following requirements may be applicable to his particular duties must:
(a) See that the proper system of account prescribed by or under the authority of the Accountant-General is established and maintained;
(e) Exercise supervision over all officers under his authority entrusted with receipt and expenditure of public money, and take precautions, by maintenance of efficient checks; against the occurrence of fraud, embezzlement of fund or carelessness;
(f) Supervise the expenditure of the government; take care that no payment is made which is not covered by proper authority, expressed or referred to on the voucher relating to it; and, in any case of any apparent extravagance or of any apparent defect in the provision for a charge owing to the exhausting or absence of a vote, call attention of the appropriate officer to the matter in writing.
(g) Promptly charge in his accounts under the proper Accounts Code Combination, all disbursements whether expenditure or other payments;
(h) Check all cash (Physical verification) in his charge and verify the amounts with the balance shown in the cash book;
(i) Promptly bring to account as a receipt any cash found in excess of the balances shown in the cash book or stamp register;
(j) Promptly make good any minor deficiency not caused by theft or fraud in the cash or stamps for which he is responsible and report in writing details of any such deficiency to the appropriate officer. This provision is without prejudice to chapter 19 of the Financial Regulations;
(k) Promptly prepare such Financial Statements as are required by Law and/or by the Accountant General of the State;
(l) See that all books are correctly posted and up-to-date;
(m) See that the authorized maximum cash balance that may be held at one time is not exceeded;
(n) Report apparent defect in the procedure of revenue collection which comes to his notice in the course of his accounting duties.
20. To the claimant, the foregoing regulations are a clear pointer that in the absence of direct proof of misconduct against the claimant, any allegation of inefficiency in the circumstance ought to be directed at the Head of the CPO and Assistant Director of Accounts at the time in the person of Mrs Kassim. That while Mrs Kassim was merely given “a tap on her wrist” (referring to Exhibit C6), the claimant was treated with bias and unjustifiably dealt a hammer blow via letter of dismissal (Exhibit C14). That this is contrary to section 36(1) of the 1999 Constitution, which requires that in the process of adjudication, the principle of natural justice, prescribing open and fair hearing, availing all parties equal opportunity to be heard, guaranteeing absence of bias in the constitution of the court or the person of the judge (or jury) are obviously essential for the correct application of the law. It is in this light that the claimant answered issue (ii) in the affirmative. That his dismissal from the 1st defendant’s employment is a violation of the 1st defendant’s Civil Service Rules regulating his employment.
21. The claimant answered issue (iii) in the negative. That the defendants have not established any allegation of misconduct against him to justify his dismissal from the defendant’s employment. Therefore, his dismissal was wrongful. That where an employee is qualified by employment to a permanent and pensionable position, he is entitled to be reinstated to the employment if it is found that he was wrongfully dismissed from employment, citing Ondo State University v. Folayan [1994] 7 NWI.R (Pt. 354) 1 at 34. That the aggrieved employee will be entitled to reinstatement to his office in addition to damages representing salaries during the period of his purported dismissal, citing CBN v. lgwillo [2007] All FWLR (Pt. 379) 1385 at 1401, Okocha v. C.S.C Edo State (supra), Shitta Bey v. Federal Public Service Commission (supra) and Olaniyan v. Unilag and anor. (supra).
22. Before drawing the curtains, the claimant drew attention to the documents tendered by defendants from the bar. That relevance is the basic consideration for admitting evidence in court including documentary evidence, citing Abubakar v. Chuks [2007] 18 NWLR (Pt. 1066) 386. That the admissibility of a document is different from the weight or probative value to be attached to the document, citing Asuguo v. Eyo [2013] LPELR-20199(CA). That after documents are admitted in evidence, the duty of the court to evaluate and determine their probative value is only triggered if the party seeking to rely on the document demonstrated the correlation between the document and the fact or point sought to be established in open court. That this the defendants failed to do. That a court is precluded from considering or evaluating a document where the party who tendered the document in evidence did not show the manner in which the document proves or disproves a contested fact, citing Mohammadu Dariminiya v. COP [1961] NRNLR 70 at 73-74, Onibudo v. Akibu [1982] 7 SC (Reprint) 29 at 46, Uche v. Elechi [2012] 3 SC (Pt. I) 26 at 60 and Terab v. Lawan [1992] 3 NWR (Pt. 231) 569 at 590. Since documents are not to be dumped on the Court, the claimant urged the Court to discountenance documents admitted as Exhibits D2, D3, D4, D5, D6(a), D6(b) and D6(c). In conclusion, the claimant prayed the Court to grant all the reliefs he seeks in this suit.
THE SUBMISSIONS OF THE DEFENDANTS
23. The defendants submitted two issues for determination, namely:
(1) Whether the claimant has discharged the onus of proof that the procedure stipulated under the 1st defendant’s “Civil Procedure Rules” regulating the claimant’s employment has been breached to justify that the punishment of dismissal meted on the claimant was unlawful thereby qualifying him to obtain the reliefs sought in this case.
(2) Whether the claimant has discharged the onus placed on him to prove the claim for special damages being the accrual right allegedly flowing from the indefinite suspension without pay from the 1st defendant’s employment in the circumstances of this case.
24. On issue (1), the defendants affirmed that the terms and conditions of the employment is regulated by the 1st defendant’s Civil Service Rules 1982. In other words, the employment of the claimant with the 1st defendant falls within category of employment covered with statutory flavor. That the implication of this is that the employment of the claimant cannot be properly or legally terminated or considered as being dismissed until the rules are strictly complied with, citing Okocha v. CSC Edo State [2004] 3 NWLR (Pt. 861) 582. That in the Civil Service Rules 1982 guiding the claimant’s employment with the 1st defendant, the procedure for the disciplinary actions against an erring officer is provided for under Rule 04508. That a review of the claimant’s pleadings revealed that the claimant has sought for declaratory reliefs among others in his complaint filed on 4th June 2013. That a relief for declaration is a judicial statement confirming or denying a legal status of the applicant. It is a discretionary remedy and to be entitled to it, an applicant must establish that he is entitled to the reliefs claimed; and the power to grant a declaration should at all times be exercised with caution. That declaration should only be made when the Court is satisfied that the party seeking it is entitled to have the Court’s discretion exercised in his favour, citing Ogundalu v. Macjob [2015] 8 NWLR (Pt. 1460) 91. That the success of a party seeking a declaratory relief depends on the strength of the applicant’s case and not on the weakness or lack of defence of the defendant, citing AG, Cross Rivers State v. AG of the Federation [2012] 16 NWLR (Pt. 1327) 425. The onus is on the claimant to satisfy the Court that he is entitled to the declaration and if he fails, his action will be dismissed, citing Kodinlinye v. Odu [1935] 2 WACA 336 and Abisi v. Ekwealor [1993] 6 NWLR (Pt. 302) 643.
25. To the defendants, in a claim for wrongful termination or dismissal from employment, the onus is always on the employee to: a) place before the Court the terms of the contract of employment, and b) prove in what manner the terms were breached by the employer. That there is no doubt that the contract of service is the bedrock upon which an aggrieved employee must found his case. He will only succeed or fail upon the terms thereof. He must plead and prove the said contract of service; it is not for the employer to prove any of this,citing Federal Medical Centre Ado-Ekiti v. Alabi [2012] 2 NWLR (Pt. 1285) 411 and Imasuen v. University of Benin [2010] 3 NWLR (Pt. 1182) 591. That a careful analysis of the claimant’s evidence tendered at the trial for the alleged wrongful dismissal by the 1st defendant clearly shows that the conditions stipulated in Imasuen were never established in totality. That to satisfy the conditions, the claimant tendered his letter of appointment issued to him by the 1st defendant to show that he was duly employed by the 1st defendant (Exhibit C1 dated 5/4/83 appointing him as a Clerical Assistant). Again, in satisfaction of the second condition, the claimant in paragraphs 34 and 35 of his sworn deposition adopted at the trial established the fact that his employment was governed by the Civil Service Rules albeit 1982 Rules. However, that in contradiction to the Civil Service Rules, and the third and fourth conditions of Imasuen v. University of Benin (supra), the claimant did not either in his pleadings or admitted evidence including exhibits establish any facts as to who can lawfully appoint or remove him from the office. Again, that no evidence was led by the claimant to show what circumstance his employment can be determined under the Civil Service Rules, which guided his employment that the defendants have breached. That the non-fulfillment of the third and fourth conditions of Imasuen is fatal to the claimant’s case and the Court should so hold.
26. The claimant continued that the law is clear that he who asserts must prove, citing Dekom v. JSC, Plateau State [2010] LPELR-4031(CA). That in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed therein in deciding the rights of obligations of the parties, citing Katto v. CBN [1000] LPELR–1677(SC) – wrong year of the citation. Meanwhile, that there is enough evidence placed by the claimant himself which clearly show that the defendants followed the stipulated procedures under the Civil Service Rules 1982 under its Rule 04508 in determining the disciplinary action against the claimant before he was removed as an officer of the 1st defendant. That a chronicle of the procedure adopted by the 1st defendant in line with the Civil Service Rules before dismissing the claimant from the employment of the 1st defendant were established by the following admitted evidence:
(1) Exhibit C2 was issued to the claimant to inform him of the nature of the misconduct that was alleged against him.
(2) The required disciplinary committee i.e. the PMB was set up, referring to Exhibit C12. It needs to be pointed out that the report of the previous PMB, that is, Exhibit C4 set up to look into allegation against the claimant was nullified by Exhibit Cl0, which provided in its paragraph (1) that: “A new personnel management board (Disciplinary) will be convened by the State Treasury Board investigate the allegation against you”.
(3) Hence, the board that was constituted in Exhibit C12 in compliance with the 1st defendant’s letter to the claimant in Exhibit Cl0 and the Civil Service Rules invited, sat and considered the claimant’s case before its report was finally considered and determined by the approving authority in the person of the Civil Service Commission which has mandate to issue Exhibit C14.
(4) Again, Exhibit Cl0 in its paragraph (1) stated: “The Civil Service Commission at its policy meeting of Thursday 11th June 2009 considered and approved your reinstatement into the State Civil Service with effect from 11th of June 2009”. The effect of the reinstatement of the claimant back to his office is nullification of the earlier indefinite suspension he was placed by virtue of Exhibit C5.
27. It is the defendants’ submission that the re-instatement conveyed to the claimant by Exhibit C10 has the effect of nullifying the period of indefinite suspension the claimant underwent, which invariably means that those period of indefinite suspension could no longer be reckoned as having been in existence or occurring both as a matter of fact and/or in the eyes of the law. That nowhere in the pleading of the claimant or any adduced evidence or exhibits admitted at the trial that it was established by the claimant that the procedure adopted by the defendants as chronicled above were not the stipulated procedure in the 1st defendant’s Civil Service Rules, which guide the employment of the claimant. The defendants then urged the Court to hold that the claimant has not discharge the onus that the procedure in the 1st defendant Civil Service Rules was not complied with contrary to the established evidence which affirmed that the procedure was strictly followed, citing NEPA v. El-Fardi [1986} 3 NWLR (Pt. 32) 884, which held that all that the employer is required to establish to justify the dismissal or termination of the appointment is to show that the allegation was disclosed to the employee; he was given a fair hearing; and the panel believed he (the employee) committed the offence after hearing the witnesses. That in compliance with the 1st requirement, the Court should examine Exhibit C2, which is the query given to the claimant, and see that the 1st defendant disclosed the allegation committed by the claimant to him and which he later answered. That in satisfaction of the requirement of giving fair hearing to the claimant, there is evidence before this Court that he was given a query (Exhibit C2) to which he replied promptly; and the required PMB to look into his case in line with the 1st defendant’s Civil Service Rules requirement under Rule 04508 was set up (Exhibit C12), clearly showing that the defendant (sic) was duly invited and he gave evidence of what he knew about the case against him during the panel’s sitting.
28. The defendants went on that the outcome of the 1st panel’s report i.e. Exhibit C4 was cancelled by the Civil Service Commission of the 1st defendant, being the approving agency upon the findings of wrongful action in the 1st PMB’s report as indicated in Exhibit C10. That this cancellation necessitated the Civil Service Commission reinstating the claimant back to his office, with a caveat in paragraph (1) of Exhibit C10 that a new PMB will look into the case of the claimant. Finally, a new PMB was set up as clearly established in Exhibit C12 where the claimant was duly invited and he again testified at the PMB about what he knew about the case. The approving authority i.e. the Civil Service Commission finally considered the report of the PMB in Exhibit C12 before arriving and issuing its final decision as indicated in Exhibit C14. To the defendants, nowhere in the claimant’s pleading or adduced evidence at trial of this case was it established that the 1st defendant did not comply with the conditions required or rules stipulated under the 1st defendant’s Civil Service Rules. In other words, there is no credible evidence placed before this Court by the claimant that he was not heard by the required PMB set up in consonance with the Civil Service Rules to look into his case. That since the claimant testified before the panel set up in consonance with the 1st defendant Civil Service Rules, the claimant does not need to be at the meeting when deliberation of the Civil Service Commission would determine his case. That where an employer accuses an employee of misconduct and allows the employee to answer the query before the employer takes decision, that in itself satisfies the requirement of fair hearing, citing lmonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) at 624.
29. The defendants continued that there is abundant evidence at trial of this case that the claimant was issued Exhibit C2, the query, which informed him of the misconduct he was alleged to have committed and also it was apparent in both Exhibits C10 and C12 that the claimant gave testimony at the sitting of the panels which confirmed the fact that the claimant was duly invited to the panel’s sitting in satisfaction of the fair hearing requirement of the Civil Service Rules. The defendants then urged the Court to hold that there is nothing in both the claimants’ pleading as well established evidence to indicate that the requirement of fair hearing in the disciplinary procedure against the claimant was not duly followed as required by the 1st defendant Civil Service Rules.
30. Lastly, on the third condition stipulated in NEPA Vs EL-Fandi (supra) i.e. that the panel set up should believe that the claimant committed the offence after hearing the witnesses, the defendants submitted that there is no evidence placed before this Court that the panel set up did not believe that the claimant committed the offence. That there is ample evidence in Exhibit C14, which confirmed that the approving authority i.e the Civil Service Commission considered the case of the claimant based on the outcome of the PMB panel reports and decided to dismiss him from the employment of the 1st defendant. To the defendants, the Civil Service Commission, an agency of the 1s defendant, is the authority that has the final say to determine the employment of the claimant in accordance with the Civil Service Rules and its position on the culpability of the claimant is clearly expressed in Exhibit C14.
31. Finally, that the claimant has not discharge the onus of proof that his employment with the 1st defendant was unlawfully terminated. That it can be gleaned from the claimant’s final address that all what he was pursuing as being unlawful was a review of the PMB panel’s basis of reasoning and action during the PMB sittings before arriving at its decision. The defendants urged the Court to hold that it does not lie in the mouth of the claimant to state that the reasoning of the 1st defendant’s PMB panel in arriving at the disciplinary punishment or any other action against him was improper. Furthermore, that in any case the reviewing steps being undertaken by the claimant in his final written address would be contrary to the nature of action initiated by the claimant in this Court which is grounded on the writ of complaint and not writ of prerogative under which this Court would have jurisdiction to review the action and steps taken at the PMB or any other panel set up to determine the case of disciplinary administrative procedure against the claimant, urging the Court to so hold.
32. For issue (2), the claimant had in addition to his claims for declaratory reliefs in his pleadings also sought for the payment of his salaries and entitlement, which accrued to him during the period he was placed on the indefinite suspension arising from Exhibit C5. To the defendants, admittedly, the 1st defendant on its own found that Exhibit C5 was issued by the 1st defendant in contravention of the provisions in the 1st defendant’s Civil Service Rules guiding the claimant’s employment but there is also in evidence before this Court in Exhibit C10 issued and served on the claimant by the 1st defendant which has the effect of correcting the 1st defendant’s error in issuing and serving Exhibit C5 on the claimant by reinstating him back into his office. That the error committed in Exhibit C5 has been cured by Exhibit C10 such that it becomes apparent in the eyes of the law that the claimant was never suspended from the office in the first place.
33. The defendants, however, asked whether there is enough material evidence tendered before the Court showing that the claimant is entitled to the salaries and entitlement arising during the period the indefinite suspension lasted. That the claim for salaries and entitlement falls within the purview of what is known as special damages and the onus is on the claimant to particularize and strictly prove it, citing Cameroon Airlines v. Otutuizu [2011] 4 NWLR (Pt. 1238) 514. That the only evidence tendered before this Court by the claimant is mere deposition on oath of certain amount being the alleged salaries and entitlement the claimant purportedly was entitled to as contained in paragraph 23 of the claimant’s deposition on oath. That there must be material evidence to strictly prove that the claimant is entitled to such salaries and allowances mentioned as heads of special damages in his pleadings, referring to Olafosoye v. Fakorede [1993] NWLR (Pt. 272) 747. That that the claimant has not discharged the onus placed on him to strictly prove his entitlement as pleaded, urging the Court to so hold.
34. The defendants went on that assuming but not conceding that the claimant succeeded in placing enough material before the Court for his entitlement to special damages claimed as his entitlement during the period of indefinite suspension as stated in his pleading, the failure to enforce his right by seeking legal redress within reasonable time has made entitlement to the salaries and allowances, if any, being caught up by the Limitation law. That there is evidence before this Court in paragraphs 44 and 45 of the amended statement of defence of the defendants that the claimant’s claim for special damages during the period of indefinite suspension has been statute-barred, citing Olagunju v. Power Holding Plc [2011] 10 NWLR (Pt. 1254) 113 at 116. That a quick glean on the claimant’ statement of the facts as well his deposition on oath revealed that he was placed on indefinite suspension by a letter (Exhibit C5) in 2005. However, that it is obvious from the claimants’ writ of complaint and pleadings that the claimant did not take action on his purported right of accrual right until year 2013 when he finally filed the present suit. That having to wait for 8 years contrary to 6 years provisions in the Limitation law of Lagos State has effectively foreclosed or extinguished any claimant’s claim to such special damages, if at all such right exists, citing Nasir v. Civil Service Commission Kano State [2010] 6 NWLR (Pt 1190) 253.
35. The defendants urged the Court to discountenance Exhibit C13 written and authored by the claimant himself, as having no probative value since no evidence of acknowledgement or exchange of correspondence on the content of the exhibit by the defendants or any of his agents is placed before the court.
36. Admittedly, that there are exceptions to the general rule that a cause of action must be instituted in Court within the limited time stipulated by statute of limitation, citing Akibu v. Azeez [2003] 5 NWLR (Pt. 814) 643 and Hassan v. Aliyu [2010] LPELR SC (incomplete citation). That the there is clear evidence that the Civil Service Commission as well as other PMB panels are public officers authorised to investigate of misconduct levied the claimants were all creation of Civil Service Rules of the of the 1st defendant, a law enabled by the Lagos State legislative power as enshrined in the 1999 Constitution. Also, that the action taken by the defendants were actions duly taken in consonance with the disciplinary procedure stipulated by the Civil Service Rules, a pubic law.
37. That Exhibit C2, the query issued to the claimant, was issued pursuant to the Public Service Rules. In addition, Exhibits C4 and C12 were the panels set up pursuant to the same law. Admittedly, that Exhibit C5, the letter of suspension, was wrongly served on the claimant in contravention of the Civil Service Rules; but the anomaly it occasioned was cured by Exhibit C10, the letter of restatement to office served on the claimant by the defendants. It is the defendants’ submission that there is no other element of evidence established during the trial where any malicious, fraud, illegality can be grounded on Exhibit C5, the letter of suspension, as being insinuated by the claimant in his written address to warrant the conclusion that the Limitation Law would not be applicable in defence of the defendants. That there is no iota of evidence established by the claimants that the defendants are not public officers and/or acted outside its authorised public duties; the slightest evidence being branded by the claimant is Exhibit C5 the letter of indefinite suspension. In conclusion, the defendants urged the Court to hold that not only did the claimant fail to strictly prove his heads of special damages as required by the judicial authorities but the claims for such special damages are statute-barred under the circumstances of this case.
THE CLAIMANT’S REPLY ON POINTS OF LAW
38. In replying on points of law, the claimant submitted that it amounts to riding roughshod for the defendants to argue that the claimant failed to show who can appoint and remove him from service. That it is trite that he that has the power to appoint also has the power to remove. The claimant has shown by his letter of employment i.e. Exhibit C1 that it was the 1st defendant that appointed him. The contention of the claimant in this case is that the purported exercise of the power to remove him from the service of the 1st defendant did not comply with the rules governing his employment with the 1st defendant. That the claimant sued the 1st defendant for unlawful suspension cum dismissal shows that the 1st defendant employed him in the first place and that it was upon the order of the 1st defendant that he was illegally dismissed. It cannot be the law, therefore, that the claimant is required to differently establish who can appoint and remove.
39. The claimant also submitted that the argument of the defendants that the claimant failed to show the circumstances under which his employment can be terminated is a red herring and an attempt to obfuscate the suit of the claimant as presented before the Court. The claimant has shown by evidence, both oral and documentary, that it is the Civil Service Rules (CSR) of the 1st defendant that governs his employment with the 1st defendant and that the 1st defendant failed to comply with the provisions of that Rules (e.g. interdiction) in the bid to purportedly sanction him for whatever infraction he was alleged to have committed. It is left for the defendants to show the Court that they complied with the provisions of the CSR governing the employment of the claimant and the rules of natural justice in dismissing him, which they failed to do, citing Mohammed v. Kano NA [1968] 1 All NLR 424, NEPA v. El-Fandi [1986] 3 NWLR (Pt. 32) 884 and Kenda v. Government of Malayar [1962] AC 322.
40. The defendants had argued that Exhibit C10 nullifies the period of indefinite suspension thereby having the effect that the claimant at all times, until Exhibit C10 was issued, was in the employment of the 1st defendant. After this submission, however, the defendants then went ahead to argue that the claimant is not entitled to be paid, salary for the period he was purportedly suspended which they claimed Exhibit C10 nullified. It is the defendants’ argument that the claimant’s reinstatement cured the ‘error’ created by Exhibit C5 (letter of suspension) i.e. it indicated that claimant was never suspended until C10 was issued and another PMB constituted which led to the issuing of Exhibit C14. To the claimant, the question then is: if the claimant was never suspended, as envisaged by Exhibit C5, should the claimant not be paid his salary and entitlement for the period of the non-existing suspension when he was reinstated? The claimant answered that he deserves to be paid his salary for this period especially when the defendants have accepted that the claimant was not suspended. Furthermore, that since Exhibit C10 nullified Exhibit C5 and its effect, defendants cannot be heard to rely on Exhibit C2, which was the query initially issued to the claimant before Exhibit C5 was issued. That if the defendants agree that Exhibit C10 nullified the period of indefinite suspension of the claimant, then they cannot rely on anything done before the issuance of Exhibit C5, which they have now agreed was issued in error.
41. The defendants also argued that the claimant was notified of the offence via Exhibit C2 and by this he was given fair hearing in the process leading to the termination of his employment. To the claimant, assuming without conceding that the claimant was indeed given fair hearing, then it is not just that the claimant was given fair hearing, but he must be found guilty of the offence complained against him by the panel set up to investigate the allegation. That after the hearing by the PMB held on 24th November 2010, Exhibit C14 was produced. The recommendation by the panel was that the claimant alongside two others investigated in the allegation was to be deployed back to his post at the time the issues leading to the allegations against him came up and that he be issued A strong letter of warning since the panel could not find anything against him indicating that claimant or the two others perpetrated the alleged fraud, referring to page 12 of Exhibit C14. The claimant then asked the basis of the punishment (dismissal from service) meted out to him if the panel set to investigate the allegation against him found him not guilty of the alleged offence.
42. The claimant went on that the argument of the defendants that the claimant should have instituted this suit by way of writ of prerogative is preposterous to say the least, urging the Court to discountenance same. That the defendants have not establish that this suit does not fall within those provided for by section 7 of the National Industrial Court (NIC) Act 2006. That the claimant approached this Court to seek redress against the unlawful termination of his employment; as such, it is beyond comprehension that someone will argue that the claimant’s complaint is against the reasoning and conclusion of the panels set up by the 1st defendant to determine any blameworthy conduct against the claimant and that such complaint can only be instituted by way of writ of prerogative before this Court can be conferred with requisite powers to determine the claimant’s case.
43. That the defendants’ submission that salaries and entitlement are special damages and the claimant is required to strictly prove same is not only disingenuous, it is without legal basis. The defendants also submitted that the claimant failed to prove his actual salary and entitlement and that even if he proved same his entitlement to the outstanding salaries and entitlements for the period of his indefinite suspension as claimed in this suit cannot be granted to the claimant by this Court because it has been caught up by limitation law. To the claimant, firstly, the law is that where one of the contending parties calls no evidence at all on an issue, the evidence called by the other party ought to be accepted, unless it is of such a quality that no reasonable tribunal shall accept it, citing Nwcibuoku v. Ottih [1961] All NLR 487. Secondly, that this Court has held severally e.g. John Ovoh v. The Nigeria Westminster Dredging & Marine Ltd (unreported) Suit No. NIC/9/2002 the ruling of which was delivered on 1st April 2008 and Captain Tor Oghide & ors v. Shona Jason (Nigeria) Ltd (unreported) Suit No: NIC/3/2008 delivered on July 18, 2008 that labour disputes associated with salaries or payments for work done cannot be caught up by the limitation laws. Similarly in Okuyemi v. Lagos State Govt. & anor (unreported) Suit No. NICN/LA/222/2013 delivered on 19/1/16, this Court granted the claimant’s prayer for salaries during an “indefinite suspension without pay”. The claimant then urged the Court to discountenance the defendants’ argument in this regard. In conclusion, the claimant urged the Court to grant all his reliefs, citing New Nigeria Newspapers Limited v. Mr Felix Atoyebi [2013] NGSC 2 at 41 and Adejemiwa v. Ogun State College of Education [2000] All FWLR (Pt. 456) 11804.
COURT’S DECISION
44. I have carefully considered the processes filed and the submissions of the parties. I start of with the admissibility of some of the documents tendered. Exhibit C3 is a comprehensive report of the irregularities in the salary account of Health Service Commission (HSC). It is unsigned. As a report, it is a document that ought to be signed. Exhibit C4 is a report of the Administrative Panel constituted to investigate the irregularities in the salary account of HSC between January to March 2005. It is also unsigned. As a report, it is a document that ought to be signed. Exhibit C6 dated 25th October 2006 is a letter addressed to Mrs I. K. Kassim, wherein the addressee was informed of being found culpable of misconduct. Exhibit C6 is not referable to the claimant. Exhibit D7 is a document that has no source. It is not known who authored it or where it came from. The law is that a document which ought to be signed, if not signed has no evidential value. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 and Sarai v. Haruna [2008] 23 WRN 130. In this wise, Exhibits C3 and C4, not signed, have no evidential value and would be discountenanced for purposes of this judgment. I so find and hold. Since Exhibit D7 has no source, it too would be discountenanced. I so find and hold. Exhibit C6 is not referable to the claimant. Its weight/probative value would be determined in terms of the merit of the case. I so hold.
45. The defendants argued that relief (v), the claim for N2,013,494.17 being salaries and allowances for the period the claimant served the indefinite suspension from October 2005 to May 2009, is statute-barred and so not recoverable by the claimant. The rule by AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 is that once there is periodicity of payment, the question of the limitation law coming into play does not arise. To the claimant, relief (vi) was dismissed when the letter of dismissal was served on him on 5th March 2013. This means that he was as an employee, the claimant retained the right to periodic payment of salary up to when he was dismissed. As soon as the claimant was dismissed, that is when the period of limitation started to count for him. He filed this suit on 4th June 2013 i.e. a day less than 3 months from 5th March 2013 when the letter of dismissal was served on him. So as far as this case is concerned, the claimant is within the limitation period in making the claim for his salaries and allowances due to him for the period he served the indefinite suspension. I so find and hold.
46. By Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 SC, an employee on suspension remains an employee. And the suspended employee is entitled to his emoluments unless the conditions of service provides otherwise. The English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653 have it that employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it up upon itself to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. See Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. The defendants in their final written address acknowledged that they made an error in suspending the claimant indefinitely. It is even the submission of the defendants that the reinstatement of the claimant vide Exhibit C10 was to cure the error they made in suspending the claimant. So if the defendants made an error in suspending the claimant, then they must pay for the period that the claimant served out the indefinite suspension. It is not enough rectitude that they reinstated him; this must be marched with due financial recompense.
47. The only argument of the defendant here is that the claimant did not specify how he came by the N2,013,494.17 he claims since that claim is one for special damages. I must state here that the argument of the claimant that relief (v) is not a claim for special damages is wrong and cannot be sustained by case law authorities. 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) made it very clear that claims for gratuity, pension, housing fund, salary are all special damages and must be strictly proved. The claimant gave the particulars of the N2,013,494.17 he claims as relief (v) in paragraph 24 of his statement of facts and paragraph 23 of his statement on oath of 4th June 2013. In each of the particulars, he merely claimed for “salaries and allowances” and then gave the period he was claiming each sum. The question is: what is the salary of the claimant? What are his allowances? What instruments give him the salary and allowances as entitlements? Within the structure of the particulars he gave in arriving at the sum he claims, the claimant used different sums depending on what was his monthly salary for purposes of calculating the sum he claims. In paragraph 34 of his statement of facts, the claimant also gave a different sum as monthly salary in his claim for salary and allowances for the period January 2013 to date of final judgment for purposes of relief (ix). The question still remains: which instrument granted the claimant the exact salary and allowances he claims? Proof of salaries and allowances cannot be the ipse dixit of the claimant. The claimant supplied no document evidencing the respective salaries and allowances upon which he calculated his claims. Exhibit C1, his letter of offer of employment does not bear any of the sums he used as salaries and allowances. As it is, the claimant cannot be said to have proved how he came by the sum he claims as to be entitled to reliefs (v) and (ix). See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017, Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017, Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017, Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39 and Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Reliefs (v) and (ix) in terms of the quantum of the sums claimed cannot be granted. This being so, reliefs (x) and (xi) being claims for interest on these sums cannot even be considered. I so hold.
48. In reliefs (ii), (iii) and (iv), the claimant prayed that his suspension should be declared null and void and hence set aside. In reaction, the defendants in their final written address submitted thus: “admittedly, the 1st Defendant on its own found that Exh. “C5” was issued by the 1st Defendant in contravention of the provisions in the 1st Defendant’s Civil Service Rules guiding the claimant’s employment but there is also in evidence before this court in Exh. “C10” issued and served on the Claimant by the 1st Defendant which has the effect of correcting the 1st Defendant’s error in issuing and serving Exh. “C5” on the claimant by reinstating back into his office”. In addition, the defendants still submitted thus: “the error committed in Exh. “C5” has been cured by Exhibit “C10” such that it becomes apparent in the eyes of the law that the claimant was never suspended from the office in the first place”. Given this admission of the wrongfulness of the defendants’ act in suspending the claimant, I need not say anything else other than that reliefs (ii), (iii) and (iv) as they deal with suspension are granted. I so hold.
49. Reliefs (ii), (vi), (vii) and (viii) in dealing with the dismissal of the claimant pray for the dismissal to be declared null and void, set aside and hence the reinstatement of the claimant. Exhibit C5 dated 29th November 2005 suspended the claimant with immediate effect i.e. from 29th November 2005. Exhibit C10 dated 14th July 2009 reinstated the claimant with effect from 11th June 2009. I already held that the defendants acknowledged that they erred in suspending the claimant. This means that the claimant remained an employee of the defendants for all intents and purposes up to when Exhibit C10 was issued to him. However, in Exhibit C10, the defendants went on to state thus: “A new Personnel Management Board (Disciplinary) will be convened by the State Treasury Board to still investigate the allegations leveled against you”. Can the defendants blow hot and cold as they seem to do here? Now, in law it is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or as punishment for an infraction. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 and Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. The defendants suspended the claimant in 2005 and then recalled him in 2009, acknowledging thereby that they erred in suspending him in the first place. So what investigation are the defendants still conducting? A key principle in industrial relations law and practice is that the disciplinary process must not run slowly and sluggishly, or be unnecessarily prolonged; for otherwise, the employer stands the risk of an adverse verdict. From this principle, two rules are evident: one, the right to suspend an employee available to an employer is not a right that inures in perpetuity or eternity. And two, where there is an infraction, an employer who allows the disciplinary process to run very slowly and sluggishly stands the risk of being read to have condoned the said infraction.
50. Illustrating these two rules, this Court frowns on prolonged suspensions; and indeed had struck against them. See Mrs. Dayo Buluro v. Nigerian Institute of Public Relations unreported Suit No. NIC/LA/23/2009, the judgment of which was delivered on 14th April 2011, Mrs Dayo Buluro v. Nigerian Institute of Public Relations [2013] 30 NLLR (Pt. 85) 121 at 132 (a motion for the enforcement of the judgment as delivered on 14th April 2011) and Sergeant Nte Ibada v. The Inspector-General of Police & 2 ors unreported Suit No. NICN/LA/91/2013, the judgment of which was delivered on 30th March 2017. In Sergeant Nte Ibada this Court expressed its displeasure at prolonged suspension. The claimant was suspended since 30th October 1998 for over 18 years. The Court held the suspension not to be fair and just especially as the claimant was not found guilty of any offence, was recalled but later asked to continue in suspension. On the authority of Mrs Dayo Buluro v. Nigerian Institute of Public Relations, the Court set aside the indefinite suspension of the claimant, and reinstated him without any loss of benefit including the arrears of his salaries and all his other entitlements. A similar scenario seems to play out in the instant case. The claimant was erroneously suspended in 2005, recalled in 2009 and told that he will still be investigated for what he was initially and erroneously suspended. Like I held in Sergeant Nte Ibada, the claimant in the instant case deserves that the suspension be set aside, which I have already done, and paid all his entitlements without any loss of benefit including arrears of his salaries.
51. There is the second issue as to condonation. The rule is that an employer who upon the knowledge of an infraction by an employee chooses to condone same i.e. forgive, overlook or act so as to imply forgiveness of the infraction cannot be heard to complain later. See Ekunda v. University of Ibadan [200] 12 NWLR (Pt. 681) 220 CA, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, Nigerian Army v. Brig. Gen. Maude Aminu-Kano [2010] LPELR-2013(SC); [2010] 5 NWLR (Pt. 1188) 429; [2010] 1 MJSC (Pt. I) 151 and Lawrence Idemudia Oborkhale v. LASU [2013] 30 NLLR (Pt. 85) 1 NIC. In the instant case, the defendants acknowledged that they suspended the claimant in error in 2005 for which they recalled him in 2009, They cannot in the same breath be asserting that they will still investigate him for allegations leveled against him. It must be noted that these are the same allegations for which the claimant was suspended in 2005 in the first place. This cannot be; and I so find and hold.
52. The defendants would proceed to investigate the claimant and vide Exhibit C14 dated 12th February 2013, they dismissed the claimant with effect from 22nd November 2012, the date the Civil Service Commission held its Policy Meeting and took the decision to dismiss the claimant. By New Nig, Bank Ltd v. Obevudiri [1986] 3 NWLR (Pt. 29) 387 CA, the effective date of the dismissal of an employee must be reckoned as the date when the letter of dismissal was written; as such, the employee is entitled to all his accrued rights up to that date. The employee’s summary dismissal cannot, therefore, be made retrospective. Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC proceeded to hold that an employer cannot dismiss or terminate his employee’s employment with retrospective effect. See also Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013 the judgment of which was delivered on July 1, 2015. From these authorities, the defendants in the instant case cannot dismiss the claimant with retrospective effect as they seem to have done vide Exhibit C14. This means that the dismissal of the claimant is null and void since the claimant is a statutory employee. Both parties agree on this fact. The claimant is accordingly entitled to be reinstated. I so find and hold. Accordingly, reliefs (ii), (vi), (vii) and (viii) to the extent that they deal with the dismissal of the claimant are grantable. I so hold. Given that both parties agree that the employment of the claimant is statutory, relief (i) merely states the obvious. I so hold.
53. On the whole, the claimant’s case succeeds in part and only in terms of the following declarations and orders:
(1) It is declared that the 1st defendant is lawfully bound to follow and apply the disciplinary procedure prescribed in the Civil Service Rules which regulates the claimant’s contract of employment with the 1st defendant.
(2) It is declared that the claimant cannot be validly and lawfully suspended or dismissed from the employment of the 1st defendant except in accordance with the disciplinary procedure provided by the defendant’s Civil Service Rules which regulate the claimant’s contract of employment with the 1st defendant.
(3) It is declared that the 1st defendant’s letter of suspension with Ref No. SHMB/888/S.l/VOL.IV/109 dated 29th November 2005 purporting to suspend the claimant indefinitely from the employment of the 1st defendant contravenes the 1st defendant’s Civil Service Rules as well as the rules of natural justice and is, therefore, null and void and of no effect whatsoever.
(4) The said letter of suspension is hereby set aside.
(5) It is declared that the 1st defendant’s letter with Ref No. P20.056/8(DSD) dated 12th February 2013 but served on the 5th March 2013 purporting to dismiss the claimant from the employment of the defendant is null and void and of no effect whatsoever.
(6) The said letter of dismissal is hereby set aside.
(7) The 1st defendant is hereby ordered to forthwith reinstate the claimant without any loss of benefit including the arrears of his salaries and all his other entitlements.
54. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
