MR. GABRIEL ENEJI USHIE -VS- POLICE SERVICE COMMISSION & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: MONDAY 24^TH FEBRUARY, 2020 Suit No: NICN/YEN/02/2019

BETWEEN:

GABRIEL ENEJI USHIE …………….. CLAIMANT

AND

POLICE SERVICE COMMISSION
INSPECTOR GENERAL, NIGERIAN POLICE FORCE DEFENDANTS

REPRESENTATION

Mr. P.J. Fawei Esq appeared with P.E. Ushie Esq for the Claimant.

Defendants not represented.

JUDGMENT

The Claimant instituted this action vide a complaint dated the 15^th day of January, 2019 and filed on the 21^st day of January, 2019. Accompanying the complaint were the Statement of Facts establishing the cause of action, Witness Depositions on Oaths, List of Witness and List of Documents to be relied upon at the trial. The claims of the Claimants are set out in paragraph 27 of their statement of facts establishing the cause of action which are as follows:

A DECLARATION that the compulsory retirement of the Claimant from the service of the Defendants with effect from the 21^st of September, 1999 is unlawful, irregular and a flagrant violation of the Claimant’s right of employment until the mandatory retirement age of 1^st July, 2008.

AN ORDER setting aside the said compulsory retirement of the Claimant on the 21^st day of September, 1999 made by the 1^st Defendant through its letter dated 8^th June, 2018 for being unlawful, irregular, and a violation of the Claimant’s right of employment until the mandatory retirement age of 1^st July, 2008.

AN ORDER of this court reinstating the Claimant and promoting him to the rank of a Superintendent of Police, as the rank he should have earned before his mandatory statutory 35 years of retirement of 1^st July, 2008.

AN ORDER of this court that the Claimant is entitled to Pension and Gratuity upon his mandatory statutory retirement after 35 years of service and be paid his Gratuity and the Pension starting from August 2008.

AN ORDER of this court that the Defendants pay to the Claimant his unpaid salaries and other emoluments totaling the sum of Twenty Million Six Hundred Thousand Naira (N20, 600,000.00) only as his salaries and other emoluments that have accrued.

AN ORDER that the Defendants pay to the Claimant twenty one percent (21%) monthly interest for the Claimants unpaid salaries and emoluments accruing to him from January, 1999 to 1^st July, 2008.

AN ORDER awarding ten percent (10%) post judgment interest against the Defendants until the judgment is fully complied with.

AN ORDER awarding the sum of N100, 000, 000. 00(One Hundred Million Naira) only as general damages for wrongful dismissal.

AN ORDER that the Defendants pay to the Claimant the sum of One Million Two Hundred Thousand Naira (N1, 200, 000.00) only as cost of litigation.

The Defendants since the inception of this action failed to put up appearance.

Upon commencement of the trial the Claimant testified as CW1 the sole witness in proof of his case. In his testimony the Claimant tendered 13 documents which was marked as EXHIBITS CW 01 – CW 013. The Claimant was not cross examined as the Defendants didn’t put any form of appearance. And there after closed his case. The Claimant was ordered to file his written address which was filed and adopted on the 2^nd day of December, 2019.

CLAIMANT’S CASE IN BRIEF

The brief fact of the case as contained in Claimant’s Statements of Facts is that the Claimant was an officer of the Nigerian Police Force with AP NO. 43345. The 1^st Defendant is an agency of the Federal Government of Nigeria in charge of the employment and disciplinary control of officers of the Nigeria Police while the 2^nd Defendant is the Head of the Nigerian Police Force which superintends over the actions and decisions of all the officers of the Nigerian Police Force. The Claimant avers that he was recruited into the Nigerian Police Force as a Constable in the year 1973 and after successfully completing the training course at the Police Training College Enugu and have been posted to serve in several states in Nigeria. He was finally posted to Bayelsa State in 1996 as the first legal officer of the state CID, Yenagoa from October, 1996 to August 1997 after obtaining a Law Degree and subsequently called to the Nigerian Bar. The Claimant avers that he was billed to retire by 35 years of service on the 1^st of July, 2008. He has served the Police Force meritoriously without any negative report against him and was even promoted to an Inspector in the year 1994. Despite his ill condition he was transferred to Brass Division a crisis ridden area as at the time. The then Deputy Commissioner of Police one Mr. Hassan got notified of the posting and gave a counter directive by causing the Claimant to return back to the state CID.

The Claimant avers that six months after the said transfer, the then Deputy Commissioner of Police went on leave and the Claimant was caused to be transferred on the 22^nd day of May 1998 again to the crisis rocked Nembe Community of Brass Division by the same officer in charge of the state CID (DSP OKORO ULAKPA), and the Claimant was seriously ill at that time. The Claimant further avers that due to ill condition he approached the Commissioner of Police to make a complaint on his transfer but the Commissioner of Police instead ordered an orderly room trial against the Claimant for discreditable conduct. And the trial should be commenced before he is permitted to proceed to Brass his new place of posting.

The Claimant avers that in the course of trial his health failed severally and this affected his trial as he was booked for the Hospital in Nembe on various dates and was even hospitalized. The orderly room trial adjudicating officer, one Mr. Ugauah later found the Claimant not liable and set aside the proceedings. The Divisional Police Officer advised the Claimant to go on annual leave due to his ill health condition which was granted and take effect from August to September, 1998. The Claimant avers that after the expiration of his annual leave his ill health continued and had to write a letter to the DPO. After he had some improvement on his health he quickly reported back to his station at Nembe and was subsequently transferred to the Ekeki Division which he went. The Claimant avers that while at Ekeki Police Station he was alleged to be a deserter by one Mr. Benedict Onovughe (SP) which complaint was made to the Assistant Inspector General of Police pending the response of the Assistant Inspector General, the Bayelsa State Command took steps and stopped the Claimant’s salaries from the month of January 1999 and has never been paid salaries or emoluments till date. The Claimant avers that the allegation of desertion made against him was never taken to the 1^st Defendant for disciplinary action as same was done by the Assistant Inspector General of Police without any trial. The Claimant also avers that after the approval of dismissal of the Claimant by the Assistant Inspector General of Police Zone 5 in the year 1999, the Inspector General of Police approved the promotion of the Claimant to the rank of an Assistant Superintendent of Police but after the promotion he has neither been paid any salaries nor any other emolument from the month of March, 2000 till date despite all the several steps he took to notify the relevant authorities all proved abortive hence this suit.

SUBMISSION OF CLAIMANT

The learned counsel on behalf of the Claimant formulated a sole issue for determination to wit:

Whether the Claimant has proved his case on the balance of probability and is therefore entitled to all the reliefs sought on the complaint?

In arguing the sole issue for determination, learned counsel submit that the Claimant is a public servant being employed by the Nigeria Police through the 1^st Defendant both of which are established and fully funded by the Federal Government of Nigeria, hence his employment is one protected by statute. Learned counsel referred this Honourable court to Section 318 (i) of the constitution of the Federal Republic of Nigeria 1999 (as amended) , and the case of EGESI VRS SEMB & ORS (2014) LPELR – 24101 (CA) where the Court of Appeal determined the status of a civil servant as being a statutory employee. Learned counsel contend that the Claimant being a public servant is protected by the Public Service Rules and any other relevant statute. See NNADI VRS NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR – 22910 (CA). The Claimant has established the fact that he was employed as a Constable with AP NO 43345 after undergoing training and his employment was done in compliance with paragraphs 103 and 106 of the Nigeria Police Regulations 1968 made pursuant to section 46 of the Police Act.

Learned counsel submit that the employment of the Claimant is governed by the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Police Act 1943, Nigerian Police Regulations 1968 and the Public Service Rules 2009. The Claimant has pleaded all relevant facts pertaining to his employment, promotion and his unlawful termination of his employment which was not challenged through oral or documentary evidence because the Defendant despite being served with the relevant processes failed to file their Statements of Defence and even refused to appear in court to cross examine the Claimant. The implication is that the Defendants have admitted the said averments.

On the unlawfulness of the Claimant’s compulsory retirement, learned counsel submit that the crux of the Claimant’s case is that the compulsory retirement of the Claimant by the 1^st Defendant via a letter dated the 8^th of June, 2018 (Exhibit CW012) with retrospective effect from 21^st September, 1999 is unlawful and a clear breach of the provisions of the Nigeria Police Regulations and the Public Service Rules 2009. The Claimant also pleaded that ever since he was promoted in March, 2000 he has not been paid his salaries and no other promotion despite the fact that he is by the Public Service Rules (Chapter 2, Section 7 Rule 020701 (b)) entitled to be promoted every three years and would have been a Superintendent of Police before his retirement in the year 2008. The Claimant also pleaded and gave evidence as to the amount he would have been entitled to from the monthly salaries accruable to each of the ranks he would have held from the year 2000 to 2008 when he ought to have retired lawfully which amounts to the sum of Twenty Million Six Hundred Thousand Naira (N20, 600, 000 .00). This the Claimant was deprived of due to the unlawful acts of the Defendants in wrongfully dismissing him from service. These facts were unchallenged therefore credible and reliable. See Section 123 of the Evidence Act 2011, OSHAFUNMI & ANOR VRS ADEPOJU & ANOR (2014) LPELR 23073 (CA). Learned counsel contend that the Defendants did not respond in substance to the facts alleged by the Claimant in the several letters written and served on the Defendants. Their failure or refusal to respond to the said facts alleged reinforce the truth value of the Claimant’s pleadings and evidence led. See TILLEY GYADO & CO (NIG) LTD VRS ACCESS BANK PLC (2019) 6 NWLR (PT 1669) 399 @ 435.

Learned counsel contend that the decision of the 1^st Defendant to compulsorily retire the Claimant’s employment through its letter dated 8^th June, 2018 and to take retrospective effect from 21^st September, 1999 is a flagrant breach of the relevant provisions of the Nigeria Police Regulations and Public Service Rules 2009 which stipulates that a person employed into the public service of the Federation cannot be compulsorily retired without clocking sixty years of age or for having served 35 years in the public service. See Rule 160401 (9), 010101, 160101, 160102 and 160103 of the Public Service Rules 2009. Learned counsel submit the Rules 160101 and 160102 defines Parastatal to include Security Agencies which envisages the Nigeria Police while Rule 010101 includes the Police Service Commission, who are the Defendants. See Regulation 107 of the Police Regulation of 1968. Learned counsel argued that if the court resolve the Nigeria Police Regulations 1968 does not apply to the Claimant, the provisions of Rules 020810 (i) and (ii) of the Public Service Rules 2009 becomes relevant and applicable. Learned counsel contend that the Claimant ought to retire by 35 years of service on the 1^st of July, 2008 but the 1^st Defendant through its letter dated 8^th June, 2018 compulsorily retired the Claimant on the 21^st September, 1999 which is about 9 years less the mandatory years of service, which is an infraction of the said provisions by the Defendants. See the case of COMPTROLLER GENERAL OF CUSTOMS & ORS VRS GUSAU (2017) 18 NWLR (PT 1598) 353 @ 386 PARAS B –D. Learned counsel urged this Honourable court to hold that the Defendants were in error and violated the provisions of the Public Service Rules 2009 and declare null the purported compulsory retirement of the Claimant.

On the Claimant’s entitlement on the reliefs sought, learned counsel submit that the Claimant is entitled to all the reliefs sought on the face of the complaint. A public servant whose employment is terminated by premature retirement is in law entitled to reinstatement once he is able to show that he was prematurely retired compulsorily. See COMPTROLLER GENERAL OF CUSTOMS & ORS VRS GUSAU (SUPRA) PP 386 – 387, PARAS H – B. The 2^nd Defendant in dismissing the Claimant from service since 1999, despite his subsequent promotion in March 2000, the Claimant has been deprived of all his employment rights and entitlements which he specifically pleaded in his Statement of Claim and gave credible and unchallenged evidence to that effect. See BRITISH AIRWAYS VRS ATOYEBI (2014) LPELR – 23120 (SC).

On the power to grant post judgment interest learned counsel submit that one of the reliefs sought by the Claimant in this suit is a post judgment interest of ten percent (10%) to read until the judgment is fully complied with by the Defendants. And the court using its inherent power to make an award of interest on a judgment debt. Learned counsel relied on the provisions of Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the case of FLOUR MILLS LTD VRS OLOKUM (2007) LPELR – 8534 (CA). Learned counsel contend that by the provisions of Order 47 Rule 7 the court has the discretion to make such order.

On the grant of general damages and cost of litigation, learned counsel submit that it is trite law that a successful party to a suit who has been caused to incur expenses in litigation is entitled to cost of litigation. See NNPC VRS CLIFCO NIG LTD (2011) LPELR – 2022 (SC). On issues the court needs to take into consideration when granting cost of litigation learned counsel relied heavily on the cases of MEKWUNYE VRS EMIRATES AIRLINES (2019) 9 NWLR (PT. 1677) 191 @ 235 PARAS E – G, NIPOST VRS MUSA (2013) LPELR – 20780 (A).

In conclusion, learned counsel urged this Honourable court to grant all the reliefs sought by the Claimant as shown in the Statement of Claim.

COURT’S DECISION

I have read and understood all the processes filed by the learned counsel to the Claimant. I listened to the testimony of the Claimant under oath and watched his demeanour. In addition I heard the oral argument of the learned counsel to the Claimant and carefully evaluated all the Exhibits tendered and admitted in this case. Having done all these, I set the following lone issue for just determination of this case:

Whether the Claimant has proved his case to be entitled to some or all the reliefs sought.

The reliefs sought by the Claimant are majorly nine. It is trite that the Claimant has an obligation to adduce credible and cogent evidence in support of these reliefs in order to be entitled to any of them. Thus, having asserted, the burden is on the Claimant to prove same. All this must be done not withstanding as in the instant case that the Defendants did not defend this action. See section 132 and section 134 of the Evidence Act 2011 as amended.

On the 1^st, 2^nd and 3^rd reliefs sought that is a declaration that the compulsory retirement of the Claimant from the service of the Defendants with effect from the 21^st September, 1999 is unlawful, irregular and a flagrant violation of the claimant’s right of employment until the mandatory retirement age on the 1^st July, 2008, to set aside the said compulsory retirement for being unlawful and to make an order for reinstatement of the Claimant to the rank of Superintendent of Police, as the rank the Claimant should have attained before his mandatory statutory retirement on the 1^st July, 2008.

It is of legal importance to state here that, an employment is said to have statutory flavour when it is protected or regulated by the statute as in the case of the Claimant in this case. The Claimant as a police officer, by the provisions of Police Service Rules and Regulations, Police Act, Public Service Rules and the Pensions Act which governed the Claimant’s employment, his appointment was to be subsisting for 35 years of service or on attainment of 60 years of age. See Eperoku vrs University of Lagos (2004) 16 WRN 90; Nitel vrs Ocholi (2001) 10 NWLR (pt. 720) 188.

The case of the Claimant is that he was compulsorily retired from service based on the fact that he approached the Commissioner of Police to make a complaint pertaining his transfer to Nembe community of Brass Division, but the Commissioner of Police instead ordered an orderly room trial against the Claimant for discreditable conduct.

It is the Evidence of the Claimant that in the course of trial, the Claimant fell sick and he was booked for a Hospital in Nembe on various dates to the extent that he was hospitalized. And that later on, the Orderly Room Trial Adjudication Officer, one Mr. Ugauah found the Claimant not liable and set aside the proceedings. And the Divisional Police Officer advised the Claimant to go on annual leave due to his ill health which same was granted effective from August to September, 1998. That after the expiration of the annual leave, his ill health continued to deteriorate, he now wrote a letter to the D.P.O. intimating him of this fact. And that when he regained from the illness, he immediately reported back to his station at Nembe, and he was subsequently transferred to Ekeki Division which he immediately reported. That while at the Ekeki Division, he was alleged to be a Deserter by one Mr. Benedict Onuvughe and a complaint was made to the Assistant Inspector General of Police Zone 5. And while waiting for the response of the A.I.G. Zone 5, the Bayelsa State Police Command took steps and stopped the payment of the Claimant’s salaries from the month of January, 1999 till date. It is also the evidence of the Claimant that, the Assistant Inspector General of Police Zone 5 approved the compulsory retirement of the Claimant without any trial in the year 1999. And that shortly thereafter the Inspector General of Police approved the promotion of the Claimant to the rank of an Assistant Superintendent of Police (ASP) from March, 2000 vide Serial No. 144 with reference number CH/4650/PERS/ ABJ/VOL. 1/10 of 29/3/2000.

It is of legal importance to state here that by section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), paragraphs 103 and 106 of the Nigeria Police Regulations made pursuant to section 46 of the Police Act, and Public Service Rules 2009, Pension Reforms Act 2014, the Claimant’s appointment being one clothed with statutory flavour he cannot be compulsorily retired without following the due process of law.

The 1^st Defendant due to the several petitions written by the Claimant challenging his unlawful compulsory retirement (EXT CW 001 – 009) in one of its meeting resolved to set aside the dismissal of the Claimant from the Police Force and reinstated him with effect from the 21^st September, 1999 and at the same time compulsorily retired the Claimant on the same date of 21^st September, 1999 through a letter dated 8^th June, 2018 (EXT. CW 012). The question to be asked what is the legality of the action taken by the 1^st Defendant by compulsorily retiring the Claimant having set aside his dismissal without hearing from the Claimant? The content of EXT. CW012 has a tinge of disciplinary flavour which requires the observance of the Police Rules and Regulations, Public Service Rules and the Police Act. The Claimant who ought to retire on 1^st July, 2008 upon attaining the mandatory retirement age of 35 years in service was compulsorily retired on the 21^st September, 1999 by the 1^st Defendant without hearing from the Claimant. It is therefore clear that the Claimant was prematurely retired. Compulsory retirement of a Public Servant compels the inference that the Public Servant is being subjected to disciplinary action for the commission of any crime or misconduct. In the case of the Claimant, there is no any evidence that the Claimant was convicted of any crime, offence or misconduct. If any disciplinary action is to be taken against the Claimant, it must be in full compliance with the relevant statute, rule or regulation. See Iderima vrs RSCSC (supra) and Shitta Bey vrs Federal Public Service Commission (supra). It is a well settled law that when a statute directs that certain procedures be followed before a person can be deprived of his right, whether in respect of his person or office, such procedure must be strictly followed. See UNTHMB vrs Nnoli (1994) 8 NWLR (pt. 363) 376; NEPA vrs Ango (2001) 15 NWLR (pt. 737) 627.

It is of legal importance to note that compulsory retirement in contemporary Nigerian jurisprudence refers to the special cases of discipline for repudiation by the employee. It is usually the power exercisable by the employer as a disciplinary action usually attributable to acts of misconduct. It is relevant that the reasons for which an employer abruptly brings a contract of employment to an end must be stated and justificable. See Abomeli vrs NRC (SUPRA); Savannah Bank Nig. Plc vrs Fakokun (2002) 1 NWLR (PT. 747) 544.

I am in agreement with counsel to the Claimant that the contract of employment of the claimant is one with statutory flavour. It is of legal importance to note that in a contract with statutory flavour, the procedure for employment and discipline including termination and dismissal of an employee are clearly spelt out. The settled position in such employment is that it must be terminated in the way and manner prescribed by the relevant statute or rules. That position follows from a general rule that when a statute or rules directs that a certain procedure be followed before a person can be deprived of a right such a procedure must be strictly followed otherwise the court will declare void any act done not in accordance with the prescribed procedure. See Shittabey vrs FCSC (supra); Longe vrs First Bank Nigeria Plc (2010) 6 NWLR (pt. 1189) 3.

Furthermore in Jirgbagh vrs UBA Plc (2000) FWLR (PT. 26) 1790, Chukwumah Eneh, JCA summarized the general position when failure to comply with contractual procedure for determination will constitute a breach in the following:

“(i) Where the contract itself, though not regulated by any legislation, has made provision for the procedure to be followed when termination is for misconduct. The summary dismissal of the employee in breach of the contractual procedure would render the dismissal wrongful

(ii) Where a statute or a subsidiary legislation provides the procedure to be followed when the dismissal of an employee is on disciplinary grounds, the requirement of the statutes must be complied with when the removal of the employee is for misconduct, otherwise the dismissal would be a nullity.

By the Police Act, and the Police Rules, which is a subsidiary legislation, the Defendants has the power to engage, appoint, promote, dismiss and terminate the employment of any of its staff. The rules have constitutional force flowing from the fact that it derives its status from section 214 (1) of the CFRN 1999 (As amended). And the persons over whom they apply are invested with legal status which guarantees strict adherence to the statutory provisions.

It is trite that once a subsidiary legislation conforms to the principal laws, which provide the source of their existence, such legislation becomes relevant. See the cases of Governor of Oyo State & Ors vrs Folayan (1995) 8 NWLR (PT. 413) PG 292; Osadebe vrs A.G Bendel State (1991) 1 NWLR (PT. 169) PG 525. To that effect, I shall rely massively on the provisions of the Police and Resolution Rules. I have taken this time to explain this position in order that the court’s decision herein and its deep reliance on rules will be appreciated. It is an elementary principle of law that in a matter for wrongful termination of employment (like in this case) the burden is upon the employee who alleges the wrongful termination to prove how the employer breach the contract of service in determining the employment. See Nigerian Gas Co. Limited vrs Dudusola (2005) 18 NWLR (PT. 957) 292.

The method of establishing the breach of the contract of service depends largely on the type of employment which is classified into (i) master/servant employment, (2) where a servant holds employment at the pleasure of his master and (3) an employment clothed with statutory flavour. From the examination of the evidence before this court, it is not in contest that the Claimant’s employment with the 1^st and 2^ndDefendants is one which enjoys statutory flavour as it relates to employment in the Nigeria Police Force.

The law is settled on the principle that where the contract of service is protected by statute and the removal of a person is predicated upon compliance with statutory provisions, non compliance with the statutory provisions, non compliance with the statutory provisions renders the removal ultra vires and void. See Nnadi vrs National Ear Care Centre & ANOR (2014) LPELR-22910 (CA); Ekperokun vrs University of Lagos (1986) 4 NWLR (PT. 34) PG 162.

It is on record that the Claimant was never tried by the A.I.G. Zone 5 who initially dismissed the Claimant as provided by the regulations. And also there is nothing to show that the said A.I.G has the power to unilaterally dismiss the Claimant. And it was based on the petitions written by the Claimant (Exhibits CW001 – 009) which now made the 1^st Defendant by Exhibit CW012 reversed the dismissal and at the same time compulsorily retired the Claimant without hearing from him.

It is my view that fair hearing in this case does not mean or limited to giving the Claimant an opportunity to appear before the Investigative Panel. It means more than that as OPUTA JSC (of blessed memory) put it in the case of Garba & Ors vrs University of Maiduguri (1986) N.S.C.C. PG 245, that the panel must not hear evidence or receive representations behind the back of the appellants. But the committee did just that in the present suit. The claimant was not given the opportunity to confront his accusers or cross examine them. And the documents which were used against him, same was not given to him. Indeed there is no any fair in this hearing. See also Adeniran vrs N.E.P.A. (2001) 47 W.R.N. 145 at 158 – 159.

The procedure adopted by the Defendants in dismissing the Claimant falls short of what was enshrined in the Police Regulations (the statute regulating discipline in the 1^stDefendant) thereby offending the spirit of the provisions of Section 36(1) of the 1999 Constitution (as amended) on fair hearing.

The law is settled that any public body charged with the powers to employ staff must act within the Statute or Regulations creating it and ensure that it mandatorily abides with the provisions of that Statute and or Regulation governing its procedure for discipline or dismissal of its staff as any breach thereof would render the disciplinary measure meted out, null and void. See Adeniyi vrs Governing Council, Yaba College of Technology (1993) 6 NWLR (PT. 300) 426. Although the 1^stDefendant has the powers by virtue of the relevant regulations to discipline and dismiss the Claimant, it failed to adhere to the strict provisions of the Regulations in this circumstances. Therefore I hold that the compulsory retirement of the Claimant was wrongful. And I so hold.

Having resolved that issue one in favour of the Claimant, it becomes imperative that I look at the reliefs he seeks from this Court. As already pointed out in this judgment, it is not in doubt that the Claimant’s employment is one coated with statutory flavour. It therefore invests the Claimant with a status higher than the ordinary one of master and servant. The status of employment with statutory flavour, in its own rights, guarantees an employee’s right to fair hearing before the termination of his employment. See Olaniyan vrs University of Lagos (1985) 2 NWLR (PT. 9) 599; Imoloame vrs WAEC (1992) 9 NWLR (pt. 265) 303.

I am satisfied from the evidence before me that the Claimant has proved his case and is entitled to the reliefs which are available under the law with regards to the wrongful termination of an employee whose employment enjoys statutory flavour. The remedy to unlawful termination of employment clothed with statutory flavour is reinstatement. Once a dismissal or termination of such employment is declared unlawful or null and void, there is nothing legally standing in the way of such employee to having his or her job or office back with all the attendant rights, privileges and benefits. In other words, the Claimant is entitled to be restored to his status quo ante. See Olufeagba & Ors vrs Abdul-Raheem & Ors (2009) 18 NWLR (PT. 1173) pg. 384. The rationale behind this conclusion is that if the Claimant had remained in service up till date, he would have earned his salaries, allowances and all other entitlements. He should not lose these benefits if he is wrongly dismissed. This line of reasoning was also captured in the case of Olalekan vrs Management Board, UNIMAID Teaching Hospital (2012) LPELR-20099 (CA) where the Court, per Omoleye, J.C.A, held as follows:

“The law is settled that, where an employee’s service is protected by statute and his employment is wrongfully terminated as in the instant case, he would be entitled to re-instatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. This is because the Appellant as stated above is in a permanent and pensionable cadre of the Respondent’s establishment. His office is not at the pleasure of the Respondent. Rather, his appointment is protected by the provisions of the Act.”

Consequently, the Claimant herein should be immediately re-instated to his status quo ante and is entitled to the payment of all his salaries and entitlements from the date of the purported dismissal of his employment till his retirement date. This will suffice as the attendant cost of damages for the wrongful dismissal of the Claimant by the Defendant.

However, on the issue of damages, it is settled law that a wrongfully terminated or dismissed Claimant cannot get both reinstatement and damages at the same time; it must be one or the other. See PTI vrs Nesimone (1995) 6 NWLR (PT. 402) at 479; Onaja vrs African Petroleum LTD (1991) 7 NWLR (PT. 206) at pg 691.

Consequently, the Claimant herein ought to be re-instated to his status quo ante and is entitled to the payment of all his salaries and entitlements from January 1999 up to 1^st July, 2008 when he put up the mandatory 35 years in service. And he is also entitled to be paid his gratuity and pension starting from August, 2008. And the Claimant having been wrongfully and compulsorily retired yet he cannot be reinstated back to the Nigerian Police Force having attained the mandatory statutory retirement after 35 years in service on the 1^st July, 2008.

Furthermore, by paragraph 18 of the Claimant’s Statement of Facts dated 18^th January, 2019, the Claimant avers that he was promoted to the rank of ASP on the 29^th day of March, 2000 vide Serial No. 144 CH: 4650/PER/ABJ/Vol. 1/10 and he put the Defendants to produce the original copy of the said document which the Defendants neither controverted nor produce the said document. And its trite that uncontroverted averments are deemed as admitted. See section 123 of the Evidence Act 2011. Therefore the Defendant having been promoted from the rank of Inspector to Assistant Superintendent of Police, he is entitled to the salary and allowances equivalent to that of ASP from April, 2000 till 1^st July, 2008 at N148,000.00 (One Hundred and Forty Eight Thousand Naira) only.

On the issue that this court should order the Defendants to pay to the Claimant his salary up to the rank of Superintendent of Police which the Claimant stated that he has the prospect to attained if not because he was compulsorily retired, this court cannot act based on assumption, as such that leg of claim is hereby refused due to lack of evidence.

On the issue of general damages, it is a settled principle of law that a wrongfully terminated or dismissed Claimant cannot get both reinstatement and damages at the same time; it must be one or the other. See PTI vrs Nesimone (1995) 6 NWLR (pt. 402) at 479; Onaja vrs African Petroleum Ltd (1991) 7 NWLR (pt. 206) at pg 691. I therefore hold that the Claimant cannot get both at the same time. And as such Claimant’s relief (h) as to general damages must fail, and same is hereby dismissed.

On the issue of 21% monthly interest for the Claimant’s unpaid salaries and emoluments accruing to him from January, 1999 to 1^st July, 2008, the Claimant failed to lead evidence to prove how he arrived at that. This is because this falls within the special damages which required strict proof, and having failed to prove same, relief (f) must fail, and as such same is hereby dismissed.

In all I resolved the issue raised for determination by this court in favour of the Claimant having proved his cases based on propondrance of evidence. And judgment is hereby entered in favour of the Claimant with the exception of reliefs (h) and (f) which same are hereby dismissed.

For the purpose of clarity and for the reasons stated in this judgment, I hold as follows:

(i) I declare that the compulsory retirement of the Claimant from the service of the defendants with effect from the 21^st September, 1999 is unlawful, irregular, and a flagrant violation of the right of the claimant.

(ii) The said compulsory retirement of the Claimant on the 21^st day of September, 1999 made by the 1^st Defendant through its letter dated 8^th June, 2018 is herby declared as wrongful, irregular and a violation of the Claimant’s right of employment until the mandatory statutory retirement age of 1^st July, 2008.

(iii) That the Claimant is entitled to pension and gratuity upon his mandatory statutory retirement after 35 years of service as an assistant superintendent of Police and be paid his gratuity and pension starting from August, 2008.

(iv) That the Claimant be paid his unpaid salaries and other emoluments as follows:

(a) The salary and entitlements of an Inspector of Police from the month of January, 1999 to March 2000 totaling the sum of N1, 875,000.00 (One Million, Eight Hundred and Seventy Five Thousand Naira) only.

(b) The salary and entitlements for the rank of Assistant Superintendent of Police at the rate of N148, 000.00 (One Hundred and Forty Eight Thousand Naira) only from April 2000 to 1^st July, 2008.

(v) I award ten percent (10%) post judgment interest against the defendants until the judgment sum is fully liquidated in line with the rules of this court.

(vi) I award the sum of N200, 000. 00 (Two Hundred Thousand Naira) only as the cost of litigation.

(vii) Reliefs (f) and (h) are dismissed.

(viii) All the terms of this judgment must be complied with within 30 days from today without prejudice to the right of appeal by any one of the parties.

Judgment is hereby entered accordingly.

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

YENAGOA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA