IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATED:26THSEPTEMBER 2017
SUIT NO: NICN/UY/10/2016
BETWEEN
- IPAH DONALD
CLAIMANT
AND
- INSPECTOR GENERAL OF POLICE
- POLICE SERVICE COMMISSION
- MINISTER OF POLICE AFFAIRS
DEFENDANTS
REPRESENTATION
A.I AKINYELE (Esq) for the claimant
IBANGA INYANG (Esq) for the defendant
JUDGMENT
The claimant instituted the case vide a complaint dated the 26th day of May, 2016 and filed same day, whereof he sought the following reliefs, to wit.
1) Declaration that the purported removal of the claimant from employment through Verbal Notice and the Procedure adopted by the Defendants were irregular invalid null and void and contraryto the statute establishing the defendants, and the Principle ofNatural Justice,
2) Immediate reinstatement of the claimant with all financial entitlements, promotion and allowance from the month of October2008 to date.
OR IN THE ALTERNATIVE
The sum of N50 million damage for the wrongful removal from employment as a corporal.
SUMMARY OF FACTS
Claimants
The claimant, a Police Officer with Force Number 369181 and rank of Corporal was enlisted on the 1st of October, 2000 into the Police Training School, Nuwa-Tai in Rivers State for six months. On completion of the training he was posted to Enugu State PoliceCommand where he was later posted to Divisional Police Headquarters, Adam, in U/o-Uwani Local Government Area of Enugu State, from there he was eventually sent for a Special Duty in Nsukka, Enugu State, upon completion of a course at Illa-Orangun, Osun State.
On the 12thday of October 2008, while on Special Duty with his colleagues at Ozumozu, along UbolloUba Express Way, Nsuka, Enugu, there was an accidental discharge of bullet from one member of his team on a bus, which its driver refused to stop when asked to do so by one of the claimant’s colleagues, and the Police Authority later in the evening alleged that one of the passengers of the bus was killed as a result of the accidental discharge, caused by one member of the claimant’s team. Sequel to the above, the claimant was held responsible for the alleged offence, hence he was arrested, detained and tried at the Police orderly alone.
While the Police Orderly in Enugu State command was on going, the CP, Enugu State, on the instruction of the 1stdefendant ordered that the Orderly be terminated and he should be arraigned in the Magistrate Court. As at that time, the claimant was yet to testify. He was first arraigned before the Magistrate Court, and was subsequently arraigned at the High Court, Enugu State for murder. He was eventually discharged by the High Court on 18th of March, 2013 on the ground of lackof diligent prosecution upon return to his place of work. The claimant was informed that he has been dismissed from the day he wasarraigned, and when he requested for his dismissal letter, none was shown or given to him.
After several adjournments, at the instance of the defendant, the defendants were unable to file their Defence to this suit, even though they filed a Preliminary Objection, to which the Court Ruled on and dismissed for lacking in merit. Based on the foregoing, the claimant was allowed to prove his case.
TRIAL/EVIDENCE
The claimant opened his case on the 16 r Day of March 2017, the claimant himself, testified as C\V1 and tendered the following Exhibits which was admitted by this court, to wit: Exhibits CW, C, Cl – C9.
Thereafter, the claimant closed his case. After several adjournmentsfor the defendants to cross examine the witness and open their case. Both parties were however ordered to file and exchange their FWA.
CLAIMANT’S FINAL ADDRESS
In his Final Address, learned counsel to the claimant formulated 2issues for determination, to wit:
1) Whether the claimant has proved his case of wrongful removal from employment by the defendants.
2) Whether the claimant is entitled to the claims sought by him against the defendants.
ON ISSUE 1
Learned counsel submitted that the defendants do not have any legal right to try the claimant for crime, because it is a matter to be tried or heard by the Criminal Tribunal or Court. He referred the court to the case of CADBURY (NIG) PLC VS ONI (2013) ALL FWLR (Pt 665) 251 @ 257 Held 7.
To counsel the questions are did the defendants wait for the decision of the court before removing the claimant from employment? Did the defendants remove the claimant from employment based on the decision or judgment of the court? He answered in the negative, and submitted that the defendants did not use the decision of the court of competent jurisdiction to remove the claimant because the court struck out the case and the claimant was not convicted, and that it is obvious that the defendant exercised Judicial Powers which only the Criminal Court orTribunal is clothed with the Powers to convict the claimant and thereby remove him from employment. In the light of the above, counsel submitted that the defendants have failed to comply with the proper procedure to remove the claimant from employment and their act therefore, amount to wrongful removal of the claimant.
ON ISSUE2
Counsel while referring the court to the case of MTN NTG. COMMUNICATION LTD VS MR. GANIYU SADIKU (2013) LPELR- 21105 CA; AMAECHI VS INEC (2008) 5 NWLR (PT 1080) 227, on the principle of UBI JUS IBI REMEDIUM, submitted that the claimant has successfully given evidence to establish or prove that his removal from employment by the defendants, through verbal notice is wrongful and the procedure adopted by the defendants were irregular, invalid, null and void, and contrary to the statute establishing the defendants and the principle of Natural Justice.
He urged this Court to hold the defendants liable for their act against the Claimant and declare the act wrongful and to grant the Claimant allthe reliefs sought by him against the defendants.
COURT
I have gone through the case of the Claimant, even though the defendant was unable to make any input in this case.it is however my view that the lone issue below, if discussed, will meet the Justice of this case, and that is to say:
1 Whether given the facts and circumstances, inclusive of evidenceadduced in this case, the Claimant is entitled to the reliefs, ascouched on the face of the complaint.
The Gravamen of the case of the claimant is that his employment was terminated by the defendants over an allegation of murder, to which the defendants failed to prove in the magistrate court, during the trial on murder, and also could not allow the Claimant defend himself before terminating his employment orally. Suffice it to mean, that the claimant mainly alleged that he was not given fair hearing by the defendants, before they terminated his appointment, and the procedure by which the employment was terminated was wrong.
It is an established fact that the doctrine of fair hearing is of divine genesis, It is a common law concept which had since metamorphosed into the Nigerian Jurisprudence, It. gives citizens the right to ventilate their grievances on the alter of the twin pillars of Natural Justice, to wit; Audi Alterem Patem, and Nemo Judex in causa sua. Where a person’s right to fair hearing is eroded, No matter the quantum of dexterity, artistry, objectivity, and fair mindedness, invested in such proceedings, it will be marooned in a nullity. See the case of BOARD OFMANAGEMENT, F.M.C. MAKURDI VS ABAKUME (2016) 10 NWLR (PT, 152) 548 -549; F.R.N. VS AKUBUEZE, (2010) 17 NWLR (PT. 1223)525.
That said, it is pertinent to also point out that one of the tennets or hallmarks of fair hearing is that a person should he given the chance toproffer evidence and cross examine his adverse witness in order toexculpate himself from the allegations against him.Once there is a denial of fair hearing, it amounts to a miscarriage ofjustice, and the same obliterates the need for him to prove damages orlosesfrom it. See Generally, the case of OSHIOMOLE VSAIRH1AVBERE, (2013) 7 NWLR (PT.1353) 376; AREMU VSADETORO (2007) 16 NWLR (PT. 1060) IGRI VS STATE, (2012) 16NWLR (PT, 1327) 522, AND BOARD OF MANAGEMENT, F.M.CMARKURDI VS ABAKUME, (SUPRA).
In the instant case the claimant, was alleged to have murdered anotherperson. He was arrested, detained, and charged to court. The defendantsdid not bother to first ask him questions, in other to defend himself,neither did they bother to call witnesses, to prosecute the claimant whilstthe case was lispendis, Yet they went ahead to “Orally” terminate theemployment of the claimant.
To me, this is stricto census a denial of fair hearing, which amounts to amiscarriage of justice, and I so hold.
It is immaterial at this stage whether or not the claimant committed thealleged offence or whether the claimant will be re-arrested and charged tocourt and maybe found guilty,what matters at this stage is that for theemployment to be terminated, the claimant must be given right to fair hearing, and 1 so hold.
Furthermore, it is not in doubt that the employment of the claimant, is one with statutory flavour. It follows however that such an employment which is protected by statue must be terminated in a way and manner prescribed by the relevant statute. Any other manner of termination, which is inconsistent with the statute will be null and void, and of no effect whatsoever, and I so hold. See the case of IBAMA VS S.P.D.C. NIG LTD (2005)17 NWLR (PT.954) 364 SC.; UBN LTD VS OGBOH (1995) 2 NWLR (PT. 380) 647 SC.
It follows that for the employment of the claimant to be terminated, the proper procedure before such termination must be followed to the letter.
One cannot just wake up one sad morning and tell an employee (Orally)that his/her service is no longer needed. You must put in writing. From all the reasons discussed above, I have no iota of doubt in mymind that the issue for determination distilled above, should be, and ishereby answered in the affirmative.
Consequently, the case of the claimant succeeds in its entirely, excluding the alternative part of Prayer 2, and the orders of the court are as prayedserially on the face of the complaint, also excluding the alternative partof prayer 2.
Judgement is entered accordingly.
……………………………………
HON. JUSTICE M.N. ESOWE
Presiding Judge Calabar Division
