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National Industrial Court

Mr. Mutum Luka Likita -VS- Civil Defence Fire, Immigration &

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K. D. DAMULAK

ON THE 28TH DAY OF OCTOBER 2019

                                                       SUIT NO. NICN/ABJ/355/2018

BETWEEN:

  1. MUTUM LUKA LIKITA                      …………………………. CLAIMANT

AND

1.CIVIL DEFENCE, FIRE, IMMIGRATION

& PRISONS SERVICES BOARD (CDFIPSB)

2.NIGERIA IMMIGRATION SERVICE

  1. COMPTROLLER-GENERAL NIGERIA IMMIGRATION SERVICE ……. DAFENDANTS

4.THE HEAD OF SERVICE OF THE FEDERATION

5.THE CHAIRMAN, FEDERAL CIVIL SERVICE COMMISSION,

FEDERAL REPUBLIC OF NIGERIA

REPRESENTATIONS:

Daniel Makolo Esq For the claimant

Madeshola Olatunde Esq. For the 1st defendant.

R.M Shittu       Esq. for the 4th defendant

Owunari Bob-Manuel for the 5th defendant

JUDGMENT

1.0  INTRODUCTION

This judgment borders on a claim of unlawful dismissal. The case was commenced via a complaint dated and filed on 14/12/2018, together with a statement of facts, list of witnesses, witness statement on oath, list of documents to be relied upon and copies thereof.

The claimant seeks for declarations that his arrest and detention was unlawful and a violation of his fundamental human rights, that the media parade and publication defamed him, his dismissal was unlawful, null and void, he was defamed in the course of his dismissal, He was not given fair hearing, and orders for his reinstatement and proper placing,   payment of remuneration and damages..

Upon service on the defendants, the 1st defendant filed a memorandum of appearance on 8/1/2019 and a statement of defence by a motion filed on 20/5/2019.

The 2nd and 3rd defendants did not respond to the claim.

The 4th defendant filed a memorandum of appearance and a notice of preliminary objection on 21/12/2019 inadvertently written as 3rd defendant which was corrected on 17/9/2019.

The 5th defendant filed a memorandum of appearance and notice of preliminary objection by a motion dated 14/2//2019 and filed on 18/2/2019 as well as a statement of defence on the same date in response to which the claimant filed a counter affidavit on 3/4/2019.

  1. FACTS OF THE CASE

The claimant was employed by the 1st defendant and was serving with the 2nd defendant from 1991 until his dismissal on 7/9/2018 based on allegation of fraud and obtaining money under false pretence, thus this suit.

  1. CASE OF THE CLAIMANT

The claimant testified in line with his statement of facts on 4/4/2019 as CW1 as follows;

1 am a senior officer in the employment or the Federa1 Government of Nigeria vide a letter of appointment dated the 5/4/1991 and assigned to the 2nd defendant and registered with service No. NlS 11590. My service with the 2nd Defendant had spanned a period of over 27 years beginning from 1991.

 I was arrested, hand cuffed and detained on 6/4/2013 to 7/9/2018. On the 13th day of September, 2018 I was informed that I have a letter to collect from the service head office Disciplinary Unit. On getting there I was given the letter titled DISMISSAL FROM SERVICE with reference number CDFIPB/BMS/798/346/1 dated 7/9/ 2018. The dismissal, according to the letter, was based on allegation of fraud and obtaining money under false pretence as per the report/recommendation of both the Immigration Service Senior Staff Disciplinary Committee and the Board Discipline and General Purpose Committee.

Some of these are strange to me because I never had any communication whatsoever with the Board Discipline and General Purpose Committee before and as such was not aware of any report/recommendation. I have never had any communication or heard anything from the Board Special Disciplinary Committee investigating any allegation against me. I was not invited nor communicated with in any way before during and after their investigation.

I wrote a letter of appeal dated 2nd October 2018 through the 2nd and 3rd  Defendants to the 1st Defendant asking that the letter of Dismissal sent to me was in error and therefore pleaded with them to please withdraw the letter because of the several observations as made in my said letter of appeal. When 1 did not receive any response from them I gave authority to my lawyer to write the Defendants a pre-action notice in line with section 109 of the 2nd Defendant Act 2015. My lawyers were ignored.

My arrest in handcuff from my office on Tuesday, 6th April, 2013, my detention and other disciplinary process, procedure set in motion by the 2nd defendant ever since was strange to our law, Public Service Rules and any other extant laws in Nigeria.

I was hurriedly released from the 2nd Defendants detention on 17th August, 2017 on so called self recognition that I was refused ever since. Early in the morning on the 18th of August, 2017 people started calling me from all over the world about the press review of the day where I was said to be tagged and paraded as the immigration chief arrested for ‘fraud’. This news item was carried by all print and electronic media of note. On this day the press review was; ‘the Nigeria Immigration Service (NIS) has arrested one of its own Assistant Comptrollers, Mr Luka Mutum, (ACI) for alleged fraud. Mutum was nabbed for allegedly defrauding people“. These news headlines appeared on all print, electronic media and TV Station of the Friday 18th August, 2017.

The 2nd and 3rd Defendants did these to me maliciously with all wickedness venom against me unduly. My families, friends, associates and entire village community were greatly distressed. I was traumatized and devastated as a result of the media trial, persecution and till date, it’s shocking to note I am yet to be informed formally about any petition or petitioner nor complainants against me neither have I been called upon to make any statement to anybody or agencies about these till date even I lobbied to be given the chance. I was not availed because my accusers, petition and petitioners does not exist. Even on demand I have not seen my accusers, petitioners/Complainants till date.

 I was not asked, neither did I state in writing anywhere that I was given access to the documents for use or used against me contrary to PSR 030307sub rules (i). I was not supplied the copy of any document or the petitions used against me in accordance with PSR 030307 SUB RULES (Vii). I was not given any opportunity to make my defense in line with the PSR 030305 on discipline. The decision of the committee was not communicated to me. Up until this moment I have not seen the said letter of Suspension or that of the interdiction.

I was issued the query dated 28th November 2016 for the first time since my ordeal started on 6th April, 2013. I made a reply to the query dated 30/ 11/2016. My Salary payment was restored from November 2017 promising to pay the outstanding arrears later. The officials renege on their promise made to me earlier and the next thing from the 2nd & 3rd Defendants was the letter of 7th September 2018 wherein the 1st Defendant purportedly dismissed me from the service of the 2nd Defendant without due process. Not even my contributory pension was l allowed to benefit from. The period from 6th April, 2013 to 17th September, 2018 is more than the 3 months period stipulated in the Service Rules Part Vi Paragraph 8 (v). My treatment and the procedure adopted for my dismissal by the 1st Defendant Board is in flagrant breach of the Public Service Rule (PSR) 2008, the Nigeria Immigration Service Rules 1990, and the 1st Defendant Rules. That the 1st defendant did not give me the opportunity to be heard before reaching the decision to dismiss me. These violated my guaranteed fundamental rights to fair hearing by the Constitution of Nigeria.

CW1 tendered 11 documents in evidence which were admitted and marked as exhibits MLL 1 –MLL 11. Reference will be made to any specific document as the need arises in the course of this judgment.

Under cross examination by Madeshola Esq. of counsel for the 1st defendant, CW1 testified as follows;

I have been in the service from 1991 to 2018.There are laws and rules guiding my employment with the defendants. My query was on the ground of fraud. I appeared before the 2nd defendant’s senior staff disciplinary committee. The reason in the dismissal letter is the same reason in the query letter.

Under cross examination by Shittu Esq. of counsel for the 4th defendant, CW1 testified as follows;

I was employed by the 2nd defendant and dismissed by the 1st defendant. The 4th defendant did not play any role in my employment, discipline and dismissal.

Under cross examination by Bob-Manuel Esq. of counsel for the 5th defendant, CW1 testified as follows;

I did not at any time receive letter of employment, query or dismissal from the 5th defendant. I did not send any letter of appeal to the 5th defendant. The 5th defendant had nothing to do with my employment, discipline and dismissal.

  1. CASE OF THE 1STDEFENDANT

The 1st defendant witness, Audu Anthony Zing, testified in line with the statement of defence as DW2 on 16/6/2019 as follows;

 I am a Chief Superintendent of Immigration serving at the National Headquarters of the Nigerian Immigration service Abuja.

By virtue of my position I am conversant with the facts of this case. Failure of the Claimant to diligently perform his duties and assignments as provided for in the Public Service Rules and other relevant laws and rules guiding his employment contract led to his dismissal.

The Claimant was charged with gross misconduct on ground of fraud, obtaining money under false pretence, serious financial embarrassment and an act unbecoming of a Public officer as provided for in Rules 030402 (o), (h), (p)  and (w).  That where any officer has been found wanting in his duties, the disciplinary procedure as laid down in Public Service Rules 030302 and 030307 and the Guide lines in its Part VI is to query the said officer, afford him an opportunity to reply the query, carry out investigation relating thereto, afford him fair hearing before the disciplinary committee before any decision can be taken. All these were dutifully carried out before the dismissal of the Claimant.

That the Claimant had actually been confronted by his accusers, the Nigeria Immigration Service by carrying out investigative activities, being queried and given the opportunity to reply to the query, constituting the Senior Staff Disciplinary Committee (SSDC) of the Nigeria Immigration Service as provided for in the Guidelines, the claimant being a Senior Officer.

The allegation of fraud, serious financial embarrassment and act unbecoming of a public officer for which the Claimant was charged is provided for under the Public Service Rules 030402 (h), (o), (p) and (w) as well as the Guidelines with the punishment prescribed therein. That the extant Rules empowers an employer to implement the punishment as provided. That though the allegation is criminal in nature, the Defendants did not pass the punishment provided for the criminal act on the Claimant as it had no power to do such but instead dealt with him administratively as they are entitled to under the Public Service Rules. That the 1st Defendant has not gone outside its power in dismissing the Claimant.

The Defendants did not take five years to resolve or reach a conclusion on the allegations leveled against the claimant but that there were plethora of petitions from the public at different times against the claimant which made it impossible for his case to be timeously discharged with as it needed to be dealt with, investigated and handled separately according to their circumstances. Copies of such petitions, queries, inquiries and his replies to them are hereby pleaded and marked ANNEXURE. III (a)- ( j).

Claimant was queried, allowed to reply the query which he did. Investigation duly carried out and accorded fair hearing in inviting him to appear before the Disciplinary Committee which he did. All of the disciplinary process for senior officers was diligently carried out in the case of the Claimant according to the extant rules.  No decision was carried out until after he was queried, allowed to reply to the query and appeared before the SSDC. Evidence of the foregoing is seen in the dates he was queried, suspended and then dismissed.

That to reinstate the claimant is to lay a very bad example for serving officers of the NIS.

This witness tendered 14 documents which were all objected to by the claimant counsel on the ground that they are uncertified photocopies, they are private documents and the maker is not called as a witness, no evidence of service on the claimant.  These documents were marked as exhibits “AAZ 1 tendered” to “AAZ 14 tendered” and ruling reserved till judgment.

Under cross examination by Makolo Esq. of counsel for the claimant, DW2 testified as follows;

I do not know if every other ACI discipline and award is conversant with the facts of this case. I don’t know anything as special disciplinary committee, only senior staff disciplinary committee. I am not a member of the Board so I do not know if he was called to defend himself. I do not know the exact date that the disciplinary proceedings started against the claimant, what I know is that his case took a while because of the series of complaints being received.

  1. CLAIMANTS REPLY TO 1ST DEFENDANT

The claimant filed a reply to 1st defendant statement of defenceon 10/7/2019 without a witness statement on oath accompanying same. The claimant also filed another process on the same 10/7/2019 titled “Reply affidavit to the 1st defendant’s witness statement on oaths” therein joining issues with the specific depositions in the 1st defendant’s witness statement on oath.

  1. CASE OF THE 4THDEFENDANT

The 4th defendant filed a memorandum of appearance and a notice of preliminary objection on 21/12/2019 inadvertently written as 3rd defendant which was corrected on 17/9/2019. Learned counsel for the 4th defendant, Shittu Esq, participated in all the proceedings of the Court and on 4/4/2019 informed the Court that we are not calling evidence, we are aligning ourselves with the 4th defendant.

  1. CASE OF THE 5THDEFENDANT

The 5th defendant witness was one Babatunde G. Folade who testified as DW1 in line with the 5th defendant’s statement of defence on 20/5/2019 as follows;

I am the Chief Executive Officer in the Office of the 5th defendant, and by virtue of my schedule of duties, I am familiar with the facts of this case, and I have the authority, consent and permission of the 5th defendant to depose to this Affidavit. The 5th defendant admits paragraph 2 and 3. The 5th defendant denies having any knowledge of paragraphs 1 and 4 to 46 of the claimant’s statement of facts.

This witness tendered no document in evidence.

Testifying under cross examination by Makolo Esq. of counsel for the claimant, DW1 testified as follows;

All civil servants are staff of the 5th defendant.

  1. PRELIMINARY OBJECTIONS OF THE 4THAND 5THDEFENDANTS AND CLAIMANT’S COUNTER AFFIDAVIT TO THE OBJECTIONS.

The 4th defendant filed a notice of preliminary objection on 21/12/2018 asking the Court to strike out the name of the 4th defendant from this suit for non- disclosure of reasonable cause of action. The ground of the objection is that the suit does not disclose any reasonable cause of action against the 4th defendant and so the 4th defendant is an improper party in the suit.

Similarly, the 5th defendant filed a notice of preliminary objection on 18/2/2019  asking the Court to strike out the name of the 5th defendant from the suit for misjoinder or non- disclosure of any reasonable cause of action against the 5th defendant. The grounds of the objection are that the 5th defendant is not a juristic person and that no any allegation of wrong is made against the 5th defendant.

The claimant filed a counter affidavit opposing both objections on 18/4/2019.

All parties have incorporated their arguments in support and in opposition of the objections in their respective final written addresses.

  1. FINAL WRITTEN ADDRESS OF THE 1STDEFENDANT’S COUNSEL

Learned  I. M. Makama Esq. of counsel for the 1st defendant formulated four issues in his final written address and argued them as follows;

  1.  Whether or not the “Reply to the 1st Defendant Statement of Defence” as well as the “Reply Affidavit to the 1st Defendants Statement on Oath” filed by the Claimant fulfills the conditions laid down in this Honourable Court’s Rules and is thereby tenable.

Learned counsel submitted that according to Order 15 Rule 7 of the National Industrial Court Civil Procedure Rules 2017, the Claimant shall have the right to reply only to new issues raised by the Defendant in the Statement of Defence. The Claimant’s 28 paragraph Reply to 1st   Defendant’s 36 paragraphs of Defence is out of place as issues raised therein are not new issues but a repetition of paragraphs 6, 7, 9, 10, 11, 12, 15, 20-32 of the Claimant’s Statement of Claim.

With regards to the “Reply affidavit to the 1st Defendant’s witness Statement on Oath”, there is no provision in the Rules for such as filed by the Claimant.  Counsel urged this honourable Court to discountenance the two processes.

  1. Whether or not the documents tendered by the 1st Defendant fulfill the laid down conditions in the Evidence Act and therefore admissible.

Learned counsel submits on this issue that Section 85 of the Evidence Act provides that contents of documents may be proved either by primary or by secondary evidence. That all the documents tendered are secondary evidence and they all fulfill the conditions laid down in section 89(c) (e) and (f) of the Evidence Act. That Exhibits AAZ 1, 8, 11 and 12 as public documents, have been duly certified. In addition, Exhibits AAZ 2, 3, 4, 5, 6, 7, 9, 10, 13 and 14 have also been duly certified by the custodian being the 1st Defendant. That Exhibits AAZ 5, 7, 13 and 14 were made by the claimant and he could not reasonably deny their existence.

That the documents are relevant, they have been pleaded and are admissible in law.

  1. Whether or not the action of the Claimant constitute gross/serious misconduct as to warrant his dismissal.

Learned counsel submit on this issue that the facts and circumstances established during trial was that the Claimant indulged in dubious and fraudulent acts by corruptly depriving innocent members of the public of their hard earned money on myriads of occasions without remorse or repent even after several warnings and intervention by the service.

As can be seen from exhibits AAZ 1, 3, 4, 6, 9 and AAZ 10 which are some of the numerous allegations, petitions and complaints against the Claimant from persons he had defrauded of one sum or the other, ranging from N160,000 to N2,020,000 not only were the allegations made against the Claimant but the Claimant expressly admitted same in Exhibits AAZ 5,13 and 14 signed by the Claimant.

That the right of an employer to discharge an employee for gross misconduct is a common law right as well as a statutory right. See CADBURY NIG. PLC. V. ONI (2012) LPELR-19821(CA).Thus an employer has a right to dismiss an employee on grounds of the employee’s gross/serious misconduct as in this case bearing in mind that his misconduct has undermined the relationship of trust and confidence expected of him as an officer in the employment of the 2nd defendant. CO-OPEARATIVE & COMMERCE BANK (NlG) LTD V. NWANKWO [1993] 4 NWLR 159.

That misconduct inconsistent with the fulfillment of the express or implied conditions of service will justify dismissal. NEW NIGERIA BANK LTD V. OBEVUDIRI (1985) LPELR-21038 (CA).

That the corrupt and fraudulent behavior as exhibited by the Claimant amounts to serious misconduct on his part as employee of the Nigeria Immigration Service which if proven, may lead to dismissal. See TELIAT SULE V. NIGERIA COTTON BOARD (1985)2 NWLR (PT. 5) P.17at 19 where the Supreme Court held;

“to warrant summary dismissal, it is enough that the conduct of the servant is of such grave and weighty character as to undermine the relationship of confidence which exists between master and servant”.

See also UNION BANK OF NIGERIA PLC v. SOARES (2012) LPELR-8018(CA)

That it is not necessary, nor is it a requirement under section 36 of the  Constitution that before an employer to summarily dismiss his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. See OLAREWAJU V. AFRIBANK NIGERIA PLC (2001) LPELR-2573(SC)

That the type of misconduct carried out by the Claimant is Serious in nature and if proven attracts summary dismissal without the need for the 1st Defendant resorting to Court for a conviction first as posited by the Claimant.

Learned counsel submitted that the publication in exhibit MLL5 is and remains the true statement of facts that was presented to the public.

  1.  Whether or not the Claimant was lawfully and/or rightfully dismissed by the Defendants.

Learned counsel submitted on this issue that the Public Service Rules did not only provide for acts that constitute serious misconduct and the accruing penalty, but also provided for due procedure to be followed before the penalty is issued out.  That the process laid out in Section 3 Rules 030302 and 030303 of the Public Service Rules were followed in this instant case. Contrary to the position of the Claimant, nowhere in the guidelines or any other applicable Rules was it laid down that officers of the services are to appear before the BDGPC (Board Discipline and General Purpose Committee). The BDGPC does not sit as an investigative committee but an advisory one and officers do not appear before it.

Contrary to the erroneous belief of the Claimant as posited in paragraph 23  Of his Statement of Facts and paragraph 28 of his Witness Statement on Oath stating that the PSR requires the 1st Defendant to set up a (3) man Special Disciplinary Committee on receiving the minutes of the SSDC. The reverse is actually the case as the correct position of the PSR laid down in Rules 030307 (v)- (ix) and the Guidelines at PART VI 9 (18) (i)-(iv) is to the effect “Where necessary, the Commission may setup a board of inquiry which shall consist of not less than three persons to inquire. This board of inquiry will then forward its findings to the commission or appropriate committee. That is, the Committee is first set up (in this case the SSDC) and the committee makes recommendations to a higher Committee (in this case the BDGPC).

The recent findings that led to his dismissal is based on the query issued him on 28/11/2016 which he replied to on 30/11/2016 (Exhibits MLL 9 and MLL 10 respectively). He was later dismissed in September, 2018.

The dismissal of the Claimant is both lawful and rightful as the necessary pre-conditions for his dismissal were duly met.

  1. FINAL WRITTEN ADDRESS OF THE 4THDEFENDANT COUNSEL

Learned  R.M. Shittu Esq. of counsel for the 4th  defendant formulated two issues in his final written address and argued them as follows;

  1. Whether the Claimants’ suit as constituted and conceived before this Honourable Court has disclosed any reasonable cause of action against the 4th defendant?  

Submitting on this issue, learned counsel argued that the suit does not disclose any reasonable cause of action against the 4th Defendant at all because the Claimant has failed woefully to show in his statement of  material facts which of his rights were breached and how the rights were breached by the 4th defendant hence the joinder of the 4th Defendant as a party in this suit is a misnomer and liable to be struck out.

  1. Whether based on the state of pleadings and evidence led before this Honourable Court, the claimant has established his Claims to be entitled to the relief sought’?

Submitting on this issue, learned counsel argued that the Claimant has failed woefully to establish his case to be entitled to any relief at all against the 4th Defendant. The Claimant has no contract of service with the 4th defendant and therefore not under the purview or control of the 4th Defendant. The Claimant’s Statement of fact is bad having failed to contain sufficient material facts that will enable this Honourable Court to ascertain his cause of action against the 4th defendant.

  1. FINAL WRITTEN ADDRESS OF THE 5THDEFENDANT COUNSEL

Learned  O. E. Bob-Manuel Esq. of counsel for the 5th   defendant formulated two issues in his final written address and argued them as follows;

  1. Whether the 5th Defendant is a juristic person that can sue or be sued.

Arguing the two issues together, learned counsel argued that there is no office known to law as “Chairman, Federal Civil Service Commission”. Section 153(i)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) established the Federal Civil Service Commission and in paragraph 10 of the 3rd  Schedule to the 1999 Constitution (as amended) provided for the composition of the Federal Civil Service Commission to include the Chairman.

The Claimant’s 46 paragraphs Statement of fact clearly reveals the stark reality that the 5th Defendant’s name was never mentioned. In fact, during cross examination, the claimant expressly stated that all through his appointment, discipline and dismissal the 5th Defendant played no role.

The jurisdiction of the 5th defendant covers only civil servants and not all public servants as the claimant try to suggest. The claimant is a public servant but not a civil servant.

That the 5th defendant cannot be categorized as a necessary party in the suit. See BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812 (SC) page 52.

Even the claimant himself knows that he is not under the Federal Civil Service, which explains why he expressly admitted during cross examination that the 5th defendant did not play any role all through his employment, discipline and Dismissal. From the claimant’s response, the claimant has indirectly admitted that joining the 5th Defendant to this suit was an erroneous gesture.

  1. FINAL WRITTEN ADDRESS OF THE CLAIMANT COUNSEL

Learned D.D. Makolo Esq. of counsel to the claimant formulated ten issues and argued them as follows;

  1. Whether the failure of the 2nd and 3rd defendants to defend this suit is not an implied admission of the case as presented by the claimant?

Submitting on this issue, the learned counsel argued that the Originating processes were filed on 14 / 12/2018 and served on 2nd and 3rd defendants on 17/12/2018. Hearing notices were issued and served on them on 11/02/2019, 04/03/2019 etc. The 2nd and 3rd defendants did not file memorandum of appearance and Statement of defense. Failure to defend a suit is an implied admission of the case presented by the adverse party. It is trite that where a party who should put his facts before the Court fails to do so, it is deemed to have admitted the case of the Claimant as presented.

  1. Whether the 1st  defendant witness statement on oath, paragraph 13 of the 1st  defendant statement of defence and the documents tendered are not offensive to sections 37, 38, 78, 88, 89 & 115 (1&4) of the evidence act 2011 and therefore inadmissible in law?

Submitting on this issue, the learned counsel argued that paragraphs 1 & 2 of the 1st Defendant Witness Statement on oath (DW2) is hearsay contrary to section 37 of the Evidence Act. That paragraphs 1-4 of DW2 compared with paragraphs 5 and 6 of claimant shows that DW2 is not conversant with the facts of the case. At cross examination on how he became conversant with the facts he deposed to, he replied; “it is by virtue of the fact that I am an immigration officer and my schedule as ACI Discipline and Awards”.  “I do not know if every other ACI discipline and Awards is conversant with the facts of the case’. He didn’t say, he is a witness to any of the alleged fraudulent activities of the claimant. He is not a victim. The 1st defendant witness statement on oaths should be expunged from the record of this Court for being offensive to Section 37 of the Evidence Act 2011 and therefore inadmissible before this Court.

Counsel submitted that exhibits AAZ2 – AAZ14 are offensive to section 37 of the evidence Act 2011 for being hearsay documentary evidence. They are photocopies of private documents tendered without foundation.

  1. Whether the due process of law and the fundamental right to fair hearing of the claimant was not breached in the disciplinary procedure adopted for him by the defendants?

Submitting on this issue, the learned counsel argued that defendants use these provisions of the FPSR side by side with Exhibit AAZ1 as disciplinary procedural guideline in their establishment. That the disciplinary procedure adopted for the claimant did not comply with the disciplinary procedural guideline in exhibit AAZ1. These failures climaxed in the claimant’s dismissal.

Page 24 of exhibit AAZ1; Part (V) A), titled DISCIPLINE, (GENERAL) at paragraph I & ii laid out that; all the disciplinary procedures must commence and be completed within 60 days but the Claimants own had lasted for more than five (5) years  from 2013 till date.

The cases cited by the learned counsel to the 1st defendant in the written address in support of his issue 3; whether the action of the claimant constitute gross/serious misconduct as to warrant  his dismissal are not applicable in this case of the claimant because he is not properly investigated according to law.  He is not found guilty of the alleged offences by an unbiased inquiry or the disciplinary committee. Till these happen, the master cannot   exercise his powers of discipline on the innocent claimant. There is no evidence known to law before this court that the claimant was investigated and found guilty. From the acclaimed “plethora of petitions” alleged  on oath, not even one conviction by the Court of law or one indictment from any panel of inquiry was placed before this Court in an attempt to rebut the presumption of law in favour of the claimant.

There is no evidence that he was invited to the disciplinary committee the (SSDC) meeting held on 09/06/2014, tendered as exhibit AAZ12. No proof of service of the alleged plethora of petitions used at the meeting on the claimant.

On the 2nd disciplinary committee meeting (SSDC) held on 20/04/2017, learned counsel submitted that the Claimant received in his detention cell Exhibit MLK 6; (MLL11) an invitation letter dated 18/04/2017 on 19/04/2017 to appear before the 2nd defendants’ Senior Officers Disciplinary Committee (SSDC) in the head office Sauka, Abuja, holding on 20/04/2017 by 10am prompt, a less than 24 hours invitation. Enough time was not given the claimant to prepare himself for his defense before the SSDC. Section 36 (6) 1999 Nigeria Constitution violated without qualms.

  1. Whether the deliberate failure to follow due process of law and fair hearing principles in the disciplinary procedure adopted for the claimant does not amount to willful misconduct on part of the defendants?

Learned counsel outlined several complaints  against the disciplinary procedure, reinforcing the submissions already made in issue 3  above and concluded that there was deliberate failure to follow due process of law and fair hearing principles in the disciplinary procedure adopted for the claimant.

  1. From the evidence adduced in this case, have the defendants committed trespass to the person of the claimant?

Learned counsel submitted that the defendants have committed trespass to the person of the claimant by arresting the claimant from his office under force of arms. While in detention in Abuja, his landlord took out an action against him. To the landlord, his where about was unknown. His properties auction to pay the landlord for arrears of rent owed. That unlawful arrest, “guardroom confinement” for a period of about 6 years amounts to trespass to person, which unless it can be justified usually renders the wrong doer liable.

  1. Whether from the claimants evidence before this court, the words published about him in the newspaper of Friday 18/08/2017 are reasonably capable of being defamatory and whether the words in fact defamed the claimant?

Learned claimant’s counsel submitted that the Claimant, as the crown prince and the Dan masani of Kafachan, his children, families, friends, associates and village community where all traumatized, depressed and distressed. The news item about him on this 18/08/2017 exposed him, his family to severe hatred, contempt and great ridicule in Nigeria and the world at large as they paraded him before the press and television in chains hands and legs.

  1. Whether the claimant’s alleged woes does not amount to malicious prosecution?

Learned counsel enumerated what amounts to claimant’s woes such as his arrest and detention, not allowing him to meet his accusers, non compliance with due process and the constitution and denial of fair hearing and submitted that they amounted to malicious prosecution.

  1. If the claimant’s anguish over these was not lawful, he is not entitled to placement in ranking/grade level alignment in the service of the 2nd defendant?

Learned counsel submitted that Claimant was not allowed to attend promotion exercise for over 6 years now because he was said to be facing disciplinary proceedings which is a ruse. And now that it’s crystal clear that the so-called disciplinary proceedings was fabricated against the Claimant without any reasonable or probable cause, it is only natural that all his lost promotions, privileges, and benefits long overdue before the hostilities, be restored to him with interest in the interest of equity and Justice. He is entitled to restitution interregnum.

  1. Whether the claimant has proved his case on the preponderance of evidence to entitle him to his claims?

Learned claimants counsel submitted on this issue that facts admitted need no proof and he urged the court to resolve the issues in claimants favour, having successfully proved his case against the defendants on the preponderance of evidence; he has discharged the onus placed on him by law.

  1. Whether the 4th and 5th defendants are not privies in law to the 1st -3rd defendants making them necessary parties in this suit herein?

Counsel argued this issue as a joint reply to the preliminary objections of the 4th and 5th defendants. He submitted that the 4th defendant appoints from the employees of the 5th Defendant pool of civil servants and send them on posting to the 1st defendant temporarily and exercise control and supervision over the appointees as an organ responsible for establishment and postings of Federal Civil Servants in Nigeria.  The Claimant was employed as a Federal Civil Servant by the Federal Ministry of Internal Affairs as a Senior immigration Inspector. The defendants are privies in law deriving authorities and powers from the same authority which is Section 153 (i)(d) of the 1999 Constitution as amended, which establishes the Federal Civil Service Commission headed by the Chairman.

The appointment letter at paragraph 2 placed him under the Federal Civil Service of Nigeria with terms and condition as in the Public Service Rules. It is trite law that the employer should be responsible for the act of the servant. The 4th and 5th defendant who appoints the administrative management officials of the 1st defendant from its puddle of officials does the disciplinary control through them in the 1st  defendant and are therefore responsible for the acts of their servants. That, if the 4th & 5th defendant had ensured proper supervision of the 1st defendant managers who are her staff and under her control, these wrongs would not have gone unchecked.

  1. 1 ISSUES FOR DETERMINATION

I have read the issues formulated by both counsel, I am of the opinion that besides the preliminary objection, the 9th issue formulated by the claimant’s counsel can adequately dispose of all issues. It is hereby adopted as follows;

Whether the claimant has proved his case on the preponderance of evidence to entitle him to his claims?

  1. COURT DECISION
  2. 4TH AND 5TH DEFENDANTS PRELIMINARY OBJECTIONS

The two objections both complain that there is no reasonable cause of action disclosed against the 4th and 5th defendants and also that the 5th defendant is not a juristic person. Both counsels argued that the 4th and 5th defendants are not necessary parties to this suit and including them in this suit amounts to misjoinder.

I have also reproduced the submission of learned claimant’s counsel in opposition above. Exhibit MLL1 shows that the claimant was directly employed by the 1st defendant pursuant to Prisons Services Board Decree 1986 and it was signed by the acting secretary/director of the 1st defendant, similarly, exhibit MLL2 shows that the claimant was dismissed by the 1st defendant. The contention that the 4th or 5th defendants are his employers as sought to be established by claimant’s counsel does not flow from any of these documents; neither does it flow from section 153 of the Constitution as contended by counsel.

It is also to be noted that the claimant was neither employed nor dismissed by the office of the Head of Service of the Federation. There is no any cause of action against him and so he could only be sued as a nominal party where appropriate. The 4th defendant is neither a nominal nor a necessary party in this suit as the case of the claimant can be effectually and completely determined without his participation and the claimant will not need the 4th defendant to enforce any judgment that he may expect to obtain from the Court in his favour. See

See OVAI EKPE OKON v. OVAI BASSEY ENEM ENYIEFEM & ORS
 (2016) LPELR-41168(CA) where the court held;

A nominal party has been defined by this Court in Padawa v. Jatau (2002) LPELR-5380, (2003) 5 NWLR (Pt. 813) 247, per Muhammed, JCA (as he then was) thus:
“A party is referred to be nominal or formal, who, having some interest in the subject-matter before the Court will not be affected by any judgment but is nonetheless joined in the matter to avoid procedural defects.”

See also CHIEF MAXI OKWU & ANOR v. CHIEF VICTOR UMEH & ORS (2015) LPELR-26042(SC) where the court held;
 

“I need to add that a necessary party is that person whose presence is essential for the effectual and complete determination of the issues before the court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined.”

The court agrees with counsel to the 4th defendant that there is no cause of action established against the 4th defendant. The name of the 4th defendant is accordingly struck out.

Concerning the 5th defendant, it is to be noted that the claimant did not sue the Federal Civil Service Commission but the chairman of the commission. It needs no long grammar to make a finding that the chairman of the Federal Civil Service Commission is not a juristic person but the commission itself.

It is also to be noted that the claimant was neither employed nor dismissed by the Federal Civil Service Commission.  If the 5th defendant were to be a juristic person, there is no any cause of action against him and so he could only be sued as nominal party where appropriate. The 5th defendant is neither a nominal nor a necessary party as the case of the claimant can be effectually and completely determined without his participation and the claimant will not need the 5th defendant to enforce any judgment that he may expect to obtain from the Court in his favour. See

OVAI EKPE OKON v. OVAI BASSEY ENEM ENYIEFEM & ORS
 (2016) LPELR-41168(CA) and
CHIEF MAXI OKWU & ANOR v. CHIEF VICTOR UMEH & ORS (2015) LPELR-26042(SC) supra.
 

The Court agrees with counsel to the 5th defendant that the 5th defendant is neither a juristic person nor a necessary party and there is no cause of action established against the 5th defendant. The name of the 5th defendant is accordingly struck out.

  1.   MERIT OF THE CASE

Before dwelling on the merit of this case, there are two preliminary issues raised by the claimant counsel and one raised by 1st defendant’s counsel which shall be considered first. These are;

  1. Whether the failure of the 2nd and 3rd defendants to defend this suit is implied admission of the case of the claimant?

The failure of the 2nd and 3rd defendants to defend this suit cannot and does not discharge the claimant from the duty of proving his case. Claimant cannot just get declaratory judgment on their failure to defend or implied admission. More so, the claimant was employed, disciplined and dismissed by the 1st defendant who has defended the suit. The 2nd and 3rd defendants are not in a better position to defend the case of the claimant who was employed, disciplined and dismissed by the 1st defendant. This question is resolved against the claimant.

  1. Whether the 1st  defendant witness statement on oath, paragraph 13 of the 1st  defendant statement of defence and the documents tendered are not offensive to sections 37, 38, 78, 88, 89 & 115 (1&4) of the evidence act 2011 and therefore inadmissible in law?

The claimant was employed, disciplined and dismissed by the 1st defendant. DW2 is a staff of the 1st defendant, a chief superintendent of immigration (CSI) and he said he is conversant with the facts of this case by his schedule as ACI Discipline and Awards, so he is a competent witness. If he fails to know some details about the case, it may affect the defence on those issues but that would not render his evidence inadmissible hearsay. Moreso, his evidence is based on the documents he seeks to tender in evidence.

Paragraph 13 of the statement of defence makes an allegation against the claimant and seeks to prove the said allegation by the documents pleaded in that paragraph, it is a valid pleading subject to proof and does not offend any provision of the evidence Act.

The claimant counsel dropped his objection to exhibit MLL1 upon the production of the original subsequently. The objection now is on exhibits MLL2 to MLL14. The ground of the objection is that some of them are private documents, the documents are uncertified photocopies, the documents do not belong to the 1st defendant, their makers were not called to tender them and no foundation was laid for tendering them, they are hearsay documentary evidence.

It must be restated that the claimant was employed, disciplined and dismissed by the 1st defendant. The 1st defendant is ordinarily expected to have in its possession any documents relating to the claimant and can properly certify same as in this case. Documents in possession of the 2nd or 3rd defendants are as good as documents in custody of the 1st defendant.

Exhibits AAZ 1,2,3,6,7,8,9,10 and 11 tendered are all addressed to the 3rd defendant and the stamp showing receipt are apparent on some of them. They cannot be said to be private documents.

Exhibit AAZ12 tendered is addressed to the director/secretary of the first defendant and it shows stamp of receipt.

Exhibits AAZ 5, 13 and 14 tendered are all hand written dated and signed by the claimant. All the documents are certified.

I find that the documents are pleaded, front loaded and there is no reply from the claimant denying their existence, they are admissible and are so admitted in evidence and marked  accordingly without the word “tendered”.

Exhibit AAZ4 tendered is addressed to no one, it is undated and unsigned. It is a worthless piece of paper and is hereby rejected and so marked.

  1. Whether or not the “Reply to the 1st Defendant Statement of Defence” as well as the “Reply Affidavit to the 1st Defendants Statement on Oath” filed by the Claimant are competent.

Learned counsel for the 1st defendant has argued that the Claimant’s 28 paragraph Reply to 1st   Defendant’s 36 paragraphs of Defence is out of place as issues raised therein are not new issues but a repetition of paragraphs 6, 7, 9, 10, 11, 12, 15, 20-32 of the Claimant’s Statement of Claim.

I have painstakingly read the entire 28 paragraph Reply to 1st  Defendant’s defence, I find that it does not reply to any new issue raised in the statement of defence of the 1st defendant, it is merely an unnecessary, inordinate argumentation on issues already properly joined by the claim and defence, this is not the aim of a reply. Furthermore, the said reply is not accompanied by a witness statement on oath and so serves to help the claimant in no way beyond filing. A reply is only necessary and permissible when the defendant raises fresh and new facts in his statement of defence beyond denying the statement of claim and stating his side of the case. See

JAMES OCHIABUTO NWAGWU v. UCHE ONYEKWERE (2016) LPELR-41447(CA) where the court held;
 “…Of Course, generally, a Reply is unnecessary, except where there is a counter claim. But where the Defendant raises fresh and new facts in his pleadings, the Plaintiff is obligated to reply to them”.

The said Reply to 1st   Defendant’s statement of defence is hereby struck out.

With regards to the “Reply affidavit to the 1st Defendant’s witness Statement on Oath”, counsel argued that there is no provision in the Rules for such as filed by the Claimant. There is no need for legal niceties or industry in holding that the process is strange and unknown to the Rules of this Court. The Reply affidavit to the 1st Defendant’s witness Statement on Oath is hereby struck out.

MAIN ISSUE FOR DETERMINATION.

Whether the claimant has proved his case on the preponderance of evidence to entitle him to his claims?

The crux of the claimant’s complaint is that he was not given fair hearing. Bearing in mind the evidence and the submissions of counsels in mind, the court shall now consider the merit of this claim.

 The various allegations of denial of fair hearing shall be set out hereunder and determined as follows;

  1. My arrest in handcuff from my office on Tuesday, 6th April, 2013, my detention and other disciplinary process, procedure set in motion by the 2nd defendant ever since was strange to our law, Public Service Rules and any other extant laws in Nigeria.

It is worth noting that from the pleadings and evidence before the Court, particularly documentary evidence, as rightly contended by the first defendant, the claimant was arrested in 2013 but exhibit AAZ 12 is a report of a Senior Staff Disciplinary Committee in 2014. Exhibits MLL 9 and 10 are query and reply in 2016 and MLL11 dated 18/4/2017 is an invitation to appear before a senior staff disciplinary committee whose report led to the dismissal of the claimant on 7/9/2018 (exhibit MLL2). The strangeness of any procedure is not disclosed in this particular averment and testimony.

  1. Some of these are strange to me because I never had any communication whatsoever with the Board Discipline and General Purpose Committee before and as such I was not aware of any report/recommendation. I have never had any communication or heard anything from the Board Special Disciplinary Committee investigating any allegation against me. I was not invited nor communicated with in any way before during and after their investigation.

This allegation and evidence that I was not invited nor communicated with in any way before during and after their investigation is in respect of the Board Discipline and General Purpose Committee and the Board Special Disciplinary Committee only, not in respect of the Senior Staff Disciplinary Committee (NSDC). As rightly contended by 1st  defendant counsel, Part VI paragraph 18 makes the appointment of a special disciplinary committee a discretion of the appropriate disciplinary committee which is the Senior Staff Disciplinary Committee in this case. Paragraph 19 provides for what should happen in the event of a committee being appointed as in paragraph 18 and the special committee submits its report back to the relevant committee that sets it up. It is not the contention or evidence of the claimant that such a committee was set up. The appointment or setting up a special disciplinary committee is not a compulsory procedure so the claimant’s right to fair hearing cannot be violated by its absence.

I have read the entire chapters V and VI of exhibit AAZ1, there is nowhere in which a staff under investigation or disciplinary procedure is required to appear before the Board discipline and General Purpose Committee before it can make any recommendations to the Board. The employee is only required to appear before the Senior Staff Disciplinary Committee which the claimant admits he did. This allegation fails.

  1. My treatment and the procedure adopted for my dismissal by the 1st Defendant Board is in flagrant breach of the Public Service Rule (PSR) 2008, the Nigeria Immigration Service Rules 1990, and the 1st Defendant Rules. That the 1st defendant did not give me the opportunity to be heard before reaching the decision to dismiss me. These violated my guaranteed fundamental rights to fair hearing by the constitution of Nigeria.

I have read chapters V and VI of exhibit AAZ1, the Rules did not stipulate for the claimant to be heard by the 1st defendant but by the Senior Staff Disciplinary Committee before which claimant admitted he appeared. The 1st defendant duty is to consider the report and recommendations of the Senior Staff Disciplinary Committee and act as it deems fit, which is what it did in this case. This allegation fails.

  1. I am yet to be informed formally about any petition or petitioner nor complainants against me neither have I been called upon to make any statement to anybody or agencies about these till date even I lobbied to be given the chance. I was not availed because my accusers, petition and petitioners does not exist. Even on demand I have not seen my accusers, petitioners/Complainants till date.

This allegation was contradicted by claimant (CW1), when he testified in his examination in chief thus;

I was issued the query dated 28th November 2016 for the first time since my ordeal started on 6th April, 2013. I made a reply to the query dated 30/ 11/2016. On getting there I was given the letter titled DISMISSAL FROM SERVICE with reference number CDFIPB/BMS/798/346/1 dated 7/9/ 2018. The dismissal, according to the letter, was based on allegation of fraud and obtaining money under false pretence as per the report/recommendation of both the Immigration Service Senior Staff Disciplinary Committee and the Board Discipline and General Purpose Committee.

The claimant also contradicted himself when he testified under cross examination as follows;

My query was on the ground of fraud. I appeared before the 2nd defendant’s Senior Staff Disciplinary Committee. The reason in the dismissal letter is the same reason in the query letter.

What is clear from this cross examination is that the claimant was queried for fraud, he appeared before the Senior Staff Disciplinary Committee before he was dismissed for the same fraud.  Exhibits MLL 9, MLL10, MLL 11 and MLL 2 establish the fact that the claimant was queried, he replied the query, was invited and he appeared before the Senior Staff Disciplinary Committee which subsequently recommended his dismissal to the 1st defendant.

Taking a look at exhibit MLL9, the query, there are about 9 allegations all bordering on financial dealings with people that went sour and the people petitioned. Some of the petitions are exhibits AAZ 2, 3, 6, 9 and 10. Looking at exhibit MLL10, claimant’s answer to the query, he admitted knowing about all the transactions except one, he simply has his own version of the transactions as explanations. Part V paragraph A ix of Exhibit AAZ1 states that where witnesses are called by the disciplinary committee, the officer should be allowed to cross examine them. That is to say witnesses may not be called by the committee and there is no evidence from the claimant that witnesses were called by the disciplinary committee.

This allegation fails.

  1. The period from 6th April, 2013 to 17th September, 2018 is more than the 3 months period stipulated in the Service Rules Part Vi Paragraph 8 (v).

The 1st defendant in defence stated that;

The Defendants did not take five years to resolve or reach a conclusion on the allegations leveled against the claimant but that there were plethora of petitions from the public at different times against the claimant which made it impossible for his case to be timeously discharged with as it needed to be dealt with, investigated and handled separately according to their circumstances. Copies of such petitions, queries, inquiries and his replies to them are hereby pleaded and marked ANNEXURE. III (a)- ( j).

The evidence before the Court shows that the claimant actually had series of complaints and petitions against him spanning from 2008 to 2016 for which he was severally queried and he replied the queries and one disciplinary committee even completed and submitted a report in 2014 before the 2017 disciplinary committee that led to his dismissal. See Exhibits AAZ 2, to AAZ 12 and exhibits MLL 6, MLL 9, and MLL 10.

It is therefore not correct for the claimant to contend as if it was the 2013 investigation that lasted up to 2018. Even so, claimant and his counsel seem to deliberately omit the last part of the provision of Service Rules Part Vi Paragraph 8 (v) which says “except where it involves criminal cases”. Furthermore, the dismissal of the claimant is based on the recommendation of the Senior Staff Disciplinary Committee which started sitting on 20/4/2017. There is no evidence as to when the Senior Staff Disciplinary Committee proceedings which started on 20/4/2017 according to exhibit MLL 11 lasted before the report was sent to the 1st defendant which sat on 3/9/2018. This allegation fails.

  1. By Exhibit MLL6, the claimant was expected to appear before the SSDC within 24 hours, enough time was not given to him to prepare for his defence contrary to section 36 of the Constitution.

 

This argument overlooks the fact that the claimant was first queried on 28/11/2016 in exhibit MLL9 and he replied to the query on 30/11/2016 (48 hours) and the invitation to appear before a disciplinary committee came on 19/4/2017, more than four months after his reply to the query, that was enough period for the claimant to prepare for his defence. It is not the allegation or contention of claimant that he asked the committee for time to prepare for his defence  and he was refused. This allegation also fails.

I have read the Rules, exhibit AAZ1, particularly chapters V and VI on discipline and disciplinary procedure in the light of the several allegations and submissions on the violation of the Rules in relation to the last disciplinary procedure that led to the dismissal of the claimant, I find that the claimant has not proven any case of violation of his right to fair hearing on the preponderance of evidence. The claim fails.

The claimant has failed to allege and prove any specific act or acts of denial of fair hearing before the Senior Staff Disciplinary Committee that started on 20/4/2017 before which he appeared. All his allegations are rather cosmetic.

See IFEANYICHUKWU EJEKA V.THE STATE (2003) LPELR-1061(SC); (2003) 7 NWLR (Pt.819)408 where the court held;
   

“A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain”.

On the claim for defamation, claimant and counsel submit that the claimant and his family has been subjected to severe hatred, contempt and great ridicule in Nigeria and the world at large.

 The law is that to prove defamation, besides the traditional 5 elements or ingredients as spelt out by the court in ALHAJI K. A. GIWA VS. S. A.  AJAYI & ORS. (1993) 5 NWLR (Pt. 294) 423 at 431 per UBAEZONU, JCA who said:

“In a case of defamation of character be it libel or slander, there are certain basic facts which a Plaintiff must prove for his case to take off. They include:

(i) Publication of the defamatory matter.

(ii) The Publication must refer to the plaintiff.

(iii) The publication must have been made by the defendant.

(iv) The publication must be false;

 the claimant must prove by evidence that persons who hitherto held him in high esteem now no longer hold him in high regard. See UNITY BANK PLC V OLUWAFEMI (2007) ALL FWLR (PT. 382) 1923 AT 1949; PARAS F – H. (CA where the court held;

“The expressed impression of others about the person whose reputation has been tarnished by an alleged act of defamation be it libel or slander is undoubtedly the most important ingredient in the tort of defamation. Neither the outward manifesting or avoidance of the person allegedly defamed nor the unwillingness to smile with that person are sufficiently indicative that he is no longer regarded as a person to draw near to. There must be evidence from that third party that he no longer holds the person allegedly defamed in the same high regard that he used to do. In this regard, the well known saying that ‘actions speak louder than voice is untenable.” 

Apart from the viva voce testimony of the claimant and the submission of learned counsel on this, there is no evidence of such third party who read the publication and had a lower impression of him. No evidence of the severe hatred, contempt and great ridicule in Nigeria and the world at large to which claimant and his family has been subjected.

Having found that the claimant did not prove the allegation of denial of fair hearing, the 1st defendant rightly relied on justification.

The claim for defamation fails and is hereby dismissed.

On the whole, the case of the claimant is lacking in merit and same is hereby dismissed.

I make no order as to cost.

This is the judgment of the Court and it is entered accordingly.

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, ABUJA.

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