IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP:HON. JUSTICE M. N. ESOWE
DATE: 26TH MAY, 2017
SUIT NO:NICN/ABJ/166/2015
BETWEEN
- OGAR FRANCIS O.
CLAIMANT
AND
CODE OF CONDUCT TRIBUNAL
DEFENDANT
REPRESENTATIONS
1) E.J OGAR, Esq for the Claimant
2) DICKSON ANIE, Esq for the Defendant
JUDGMENT
INTRODUCTION
This suit was initially instituted by the Claimant at the Federal High Court, Abuja Judicial Division vide a Writ dated 11th May, 2005 and filed 12th May, 2005. However, by a memo dated 21st May, 2015 addressed to the Chief Registrar of this Honourable Court by the Deputy Registrar of the Federal High Court, Abuja, informing this Court of the order of transfer made by Hon. Justice E.S Chukwu of the Federal High Court, Abuja, this matter was officially transferred to this Honourable Court.
The reliefs sought by the Claimant are as follows:
- The Plaintiff be reinstated to his employment by the Defendant which he (Plaintiff) was purportedly dismissed from, on the 2oth day of April, 2005 and his (plaintiff) salaries and entitlements commencing February 2005 till judgment in this case is given, executed and judgment sum liquidated
- The Defendant pays the Plaintiff an interest equal to 30% of the salaries and entitlements calculated from February 2005 till judgment is given, and thereafter 10% till judgment
is executed and judgment sum liquidated - A DECLARATION that the purported dismissal of the Plaintiff from the employment of the Defendant by the Defendant vide dismissal letter dated 20th day of April, 2005 with reference No. CCT/HQ/252/P/1/112 is wrongful, null and void and of no effect.
- d.The sum of N10,000,000.00 (Ten Million Naira) being general damages for the psychological and physical torture suffered by the Plaintiff by his dismissal by the
- e.The sum of Nl,000,000. 00 (One Million Naira) only, being legal fees to the legal practitioner representing the Plaintiff and cost of litigation.
- The sum equal to N5,000,000.00 (Five million Naira) as exemplary damages.
- The Plaintiff to be promoted the same grade level as his colleagues who whereat the same grade level at the time he was purportedly dismissed, and who are now in Salary Grade Level 13/14 respectively (as at July 2010).
SUMMARY OF FACTS
The Claimant was in the employment of Defendant until his employment was determined vide a letter of dismissal dated 20th April, 2005. Claimant is herein in Court to challenge the said dismissal.
COMMENCEMENT OF HEARING
Hearing commenced on 27th April, 2016 whereby the Claimant testified for himself as PW1 and tendered their exhibits. Thereafter, Claimant closed their case on 23rd May, 2016
Defendant did not call witness(s) but chose to rest their case on the case of the Claimant.
CLAIMANT’S FINAL WRITTEN ADDRESS
Claimant’s final written address is dated 9th June, 2016 and filed 10th June, 2016, Counsel on behalf of Claimant formulated four (4) issues for determination, that is:
- Whether the Claimant is entitled to be granted the reliefs as per his
Statement of Claim.
- Whether the purported dismissal by the Defendant on the 20th day of April, 2005 was in accordance with the Public Service Rules, 2010
- Whether the manner deployed by the Defendant in dismissing the Claimant was in breach of the contract of service (employment) it entered with the Claimant on the 23rd of March, 1998
- Whether the Claimant is entitled to be granted the reliefs being sought as per his Statement of Claim.
ARGUMENT
ON ISSUE 1
Whether the Claimant is entitled to be granted the reliefs as per his
Statement of Claim.
Learned Counsel submits that the law is trite that whenever a party sues another party to court, file its pleadings and serve same on the other party, failure of that other party to controvert the depositions in the affidavit evidence or the averment in the pleading, shall be tantamount to admission of the content of the uncontroverted deposition in the affidavit evidence or averments in the pleading. He refers Court to ASAFA FACTORY LTD VS ALRAINE MG LTD (2002) 5 SC PT 1, 1 where the Supreme Court held that:
It is trite that where evidence given by a party to a proceeding was not challenged by the other side, who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence
Also, in the case of ARABAMBI AND ANOTHER VS ADVANCE BEVERAGES INDUSTRIES LIMITED (2005) 12 S.C.NJ 331, the Supreme Court held that:
The cardinal principle of law is that evidence that is related to a matter in controversy that is neither successfully debunked nor controverted at all for that matter is good and credible evidence that ought to be relied upon by a trial judge. In the same vein, where evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it
That in the instant case, the Defendant neither challenged the affidavit evidence (witness statement on oath) nor filed any defence to controvert the claim of the Claimant but rather relies on the case of the Claimant.
On the admissibility of a photocopy of a document as touching on Claimant’s dismissal letter, Learned Counsel submits that the well-known position of the law is that photocopies of any document is admissible by any court of law (inclusive of this Honorable Court), provided that the content and existence of the original document is not in contention or denied by the Defendant(s). He refers Court to CHRISTOPHER U. NWANJI (trading in the name and style of firestone Enterprises) V. COASTAL SERVICES (NIGERIA) LIMITED (2004) 6 SCNJ, Pg 146 at 149 paragraphs 1, where the court held:
Photocopy of document can be admitted in evidence when parties agreed in their pleadings that the documents was in existence and there was no issue of its being different from the original in respect of its content.
That the appropriate question begging for answer here is, has the Defendant in this case denied or countered the existence and or content of the photocopy(s) of the Dismissal letter, Resignation letter etc.? The Defendant has not by any stretch of imagination denied the existence or content of the relevant documents.
That it should be noted, however, that at the time the Claimant innocently tendered the photocopies of the Dismissal letter, Resignation letter etc., the original copies of the said documents were before the Court in the file with which the entire case was transferred to this Honorable Court. The Court clerks brought out other exhibits and erroneously failed to fetch those ones (originals) out, a situation in which Claimant equally passed the photocopies and not the originals to the Honorable Court for admission as evidence.
He therefore urged the Court to hold that the Defendant is in agreement with the Claimant in all fore that it did not properly dismiss the Claimant and therefore the Claimant is entitled to the reliefs sought as per paragraph37 (a-g) of his statement of complaint.
ON ISSUE 2
Whether the purported dismissal by the Defendant on the 20th day of April, 2005 was in accordance with the Public Service Rules, 2010
Learned Counsel submits that the proper procedure as provided in the Public Service Rules, 2000 was not followed in dismissing the Claimant. The chain of procedure for dismissal of a public servant from Federal Civil Service Commission commences with issuance of query letter by the boss of the erring officer and ends with the head of the Permanent Secretary/Head of Extra-Ministerial Department or any other appropriate authority. A proper and valid query/preliminary letter must contain the following elements:
- It must specifically state the misconduct, the rule it offends and the penalty or punishment allocated to such misconduct
- The circumstance/ time and date, the alleged misconduct occurred etc
He refers Court to Section 04302(c) and 04304(b)-(d) of the rules which provide as follows:
Section 04302(c) As soon as a superior officer becomes dissatisfied with the behavior of any officer subordinate to him, it shall be his duty so to inform the officer in writing giving details of unsatisfactory behavior and to call upon him to submit within a specific time such written representation as he may wish to make to exculpate himself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether:
(a)………
(b)……..
(c) The officer has not exculpated himself and deserves some punishment, in which case Rule 04304 shall apply.
Section 04304(b)-(c)
(b) When an officer’s misconduct is brought to the notice of his superior officer, it shall be duty of that superior officer to report it to the permanent Secretary/Head of Extra-Ministerial Department without delay. If he considers it necessary that the officer should be interdicted, such recommendations shall be made in the report.
(c) On receiving the report, the permanent Secretary/Head of Extra-Ministerial Department shall take action in accordance with Rule 04306 as appropriate and, if necessary, shall interdict the officer.
(d) At the appropriate point in the investigation, the officer may be suspended in accordance with. Rule 04405.
It is the submission of Learned Counsel that Defendant failed to comply with the rules above in dismissing the Claimant.
ON ISSUE 3
Whether the manner deployed by the Defendant in dismissing the Claimant was in breach of the contract of service (employment) it entered with the Claimant on the 23rd of March, 1998
Learned Counsel submits that the answer to issue three is capital “YES”. That the Defendant in purportedly dismissing the Claimant from Public Service, did so in gross breach of the Public Service Rules 2000 therefore in breach of the contract of employment it entered into with the Claimant in 1999.
He therefore urged the Court to hold that the Defendant’s behavior in purportedly dismissing the Claimant was and is still in abundant breach of employment the Defendant entered into with the Claimant, therefore, Court should resolve this issue in favor of the Claimant.
ON ISSUE 4
Whether the Claimant is entitled to be granted the reliefs being sought as per his Statement of Claim.
Learned Counsel submits that the Claimant is entitled to be granted all the reliefs sought as per his statement of complaint.
While adumbrating further on his earlier arguments, Learned Counsel urged the Court to grant all the reliefs sought by the Claimant.
DEFENDANT’S FINAL WRITTEN ADDRESS
In Defendant’s final written address dated 30th day of June, 2016 and filed 1st July, 2016, Learned Counsel on behalf of Claimant formulated two issues for determination, that is:
- Whether the Claimant on the state of the pleadings and the evidence led has adduced legally admissible evidence that supported the reliefs claimed.
- Whether the Defendant was entitled to dismiss the Claimant for the reason of refusal to answer query issued by the Defendant.
ARGUMENT
ON ISSUE I
Whether the Claimant on the state of the pleadings and the evidence led has adduced legally admissible evidence that supported the reliefs claimed.
Learned Counsel submits that tendered a photocopy of the letter of dismissal. Under cross examination, he made a feeble attempt to show that he tendered the original copy. He could not point to the original of the letter of dismissal. That Defendant is a creation of the Constitution by virtue of the relevant provision of 1999 Constitution (as amended) and Section 20(l) of the Code of Conduct Bureau and Tribunal Act Cap Cl5 LEN 2010. Thus, under Section 102 (a) (ii) and Section 105 of the Evidence Act 2011, only a certified copy of the Claimant’s letter of dismissal can be legally admissible in this Honourable Court. He refers Court to Abdullahi V. Military Administrator Kaduna State & Ors 2004 5 NWLR (Pt. 866) 232 at 250.
It is also the submission of Learned Counsel that exhibits A15, A16, A18, A13, A17, A14, A16 and A20 are all public documents and only certified true copies can be tendered in evidence. Therefore, same ought to be expunged. He refers Court to Yero v. Union Bank Plc. (2000) 5 NWIJR (Pt. 657) 470, 478-9; Section l11 of the Evidence Act. Cap. 112 of the Laws of the Federation of Nigeria, 1990.
He therefore urged the Court to resolve this issue in their favour and dismiss the Claimant’s suit.
ON ISSUE 2
Whether the Defendant was entitled to dismiss the Claimant for the reason of refusal to answer query issued by the Defendant.
Learned Counsel submits that under cross examination, Claimant admitted he did not answer the query issued him because he had been dismissed from service as at the time the query was issued. That this was clearly not the case from the evidence adduced by the Claimant himself. While the query was dated 8th March, 2005, the letter of dismissal was dated 20th April, 2005. This goes to show that the Claimant willfully refused to answer the query issued by the Defendant. Failure to answer the query exposed him to the order of dismissal. He refers Court to Chapter 4 Section 3 paragraph 04306 (iii) of the Federal Government Public Service Rules 2000 which states:
(iii) If the officer submits his representations and the Federal Civil Service Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the comm1sson may take such action against the officer as it deems appropriate.
He therefore urged the Court to resolve this issue in favour of the Defendant, hold that the failure of the Claimant to answer the query issued him by the Defendant is a good and justifiable reason to dismiss him from the service of the Defendant.
CLAIMANT’S REPLY ON POINT OF LAW
On receipt of Defendant’s written address, Claimant filed a reply on point of law dated 7th July, 2016 and filed 8th July, 2016.
On the issue of the photocopy of the dismissal letter tendered by the Claimant, Learned Counsel posits that the Defendant did not go further to deny the existence of the dismissal letter or the content of the letter. The clear position of the Law is that photocopies of any document (be it public or private) could be tendered and admitted in evidence if the content is not denied or the existence of the original document is not in doubt. He refers Court to SOMMER & ORS VS FHA (1992) 1 NWLR (PT218) PG 548 and BRAIMOH VS ABASI (1998) 13 NWLR (PT 581) SC 167 @ 178 PARAS F-A.
It is the submission of Learned Counsel that besides the foregoing,the three determinants in admission of documentary evidence are:
(i) Relevancy of the document(s).
(ii) Whether the document tendered by the maker or any person is supposed to be in possession of the document.
(iii) Whether the document is properly executed.
That the aforementioned conditions were satisfied by the Claimant in tendering the Dismissal Letter.
Moreso, it is the law that no party is allowed to challenge the admissibility of documentary evidence at any other time later than the time of tendering. He refers Court STEPHEN LAWSON JACK VS. THE SHELL PETROLEUM DEVELOPMENT COMPANU OF NIGERIA LIMITED (2002) 7 S.C.NJ. 121 where the court held that the proper time for taking objection to admissibility of document is when it is sought to be tendered not later.
On Defendant’s submission that Claimant on cross examination said he never answered the query letter issued him because the letter came after his dismissal, Learned Counsel posits that the well known position of the law is that the case of any party contains in his pleadings and not his evidence (be it affidavit or oral or written address). Affidavit evidence or oral evidence is meant to corroborate the case of a party in the pleadings.
In the instant case, the Defendant having formulated his final written address from the evidence (oral) of the Claimant through PW1 and not the pleadings of the Claimant goes to no issue and therefore an exercise in futility.
Moreso, the position of the law is that when a party desires to disagree with another party on any fact averred in his Statement of Claim, the Defendant can so do by way of a Statement of Defence. However, Defendant never filed a Statement of Defence before this Honourable Court nor did they adduce any evidence but rather rested their case on thst of the Claimant.
In all, Learned Counsel on behalf of Claimant urged the Court to discard the submissions or case of the Defendant in respect as same lacks backing of the law, and enter judgment in favour of the Claimant.
COURT
Having gone through the Claim of the Claimant, Defendant’s defence, evidence adduced by both sides as well as the robust argument by Counsel to the Claimant and Counsel to the Defendant, this Court, while adopting all the issues raised by both Counsel, has distilled a sole issue for determination, to wit:
Whether the Defendant breached Claimant’s right to fair hearing in the procedure that led to his dismissal.
Before addressing the issue distilled above, this Court wishes to state that having adopted all the issues raised by parties to this suit, this Court will resolve same when necessary in the body of this judgment.
That said, this Court will now proceed to address the issues distilled above.
The principle of fair hearing stemmed from time immemorial. It is a natural principle which even God, the omniscient, adhered to in the trial of Adam when, despite being all-knowing, gave Adam the opportunity to defend himself after eating the forbidden fruit in the Garden of Eden.
God who already knew that Adam ate the forbidden fruit still gave him an opportunity to be heard by asking “Who told you you are naked? Or have you eaten the fruit I forbade you to eat? To this Adam responded “The woman you gave me offered and I ate”. See Genesis 3:10-12. Now, this did not stop God from reading out the punishment for Adam’s disobedience. In the same vein, if God having known what transpired, still gave Adam the opportunity to be heard, it behoves us mortal men to give same opportunity to those who even stand condemned before us. Because you do not know what they will say or whether how they say it may sway your already made up mind. The most important thing is to hear them any way with an open mind void of bias.
Giving a person a proper hearing does not defeat the punishment if found wanting. The position of the Court has always been that punishment should come after proper hearing in accordance with laid down rules, and the principle of natural justice have been complied with. Failure to comply with such laid down rules and procedure of natural justice will render any such punishment emanating from a flawed procedure of natural justice null and void no matter how deserving the punishment is.
In our jurisdiction, the principle of fair hearing or natural justice are aptly expressed in the Latin maxims –
(i) Nemo judex in causa sua – no man should be a judge in his own case and
(ii) Audi alteram partem – hear the other side.
The foregoings have been encapsulated in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
From the face of the letter of dismissal the reasons for Claimant’s dismissal are stated as follows:
- Claimant’s absent from duty for 3 months without permission or leave
- Claimant collected salary on false pretence
iii. For refusal to answer the 2 queries.
At this stage, the Court will address the concern of the Defendant on the admissibility of the letter of dismissal which is a photocopy. This Court wishes to state that besides the exception created in the evidence Act, 2011 to which a photocopy of the original can be tendered in evidence, the argument of Defendant’s Counsel on the admissibility of a photocopy of the dismissal letter is misconceived. This is more so when parties before this court are not in disagreement that Claimant was dismissed. Therefore the submissions of Learned Counsel on the admissibility of a photocopy of the dismissal letter is overruled. If for any reason Defendant wants to genuinely contest the contents of the said letter, nothing stops them from tendering the one they have in their possession to counter the contents.
On Claimant uncertainty over the Public Service rules and Civil Service Rules, this Court wishes to state that there is a Public Service Rules, 2010 and a Civil Service Manual Handbook, 2013. Whereas the extant rules which regulates employees in civil service is the Public Service Rules 2010, the Civil Service Manual Handbook contains more of ranks, positions and responsibilities tied to such ranks and positions.
It is not in contention that the employment of the Claimant is one with statutory flavour. The law is trite that an employment with statutory flavour enjoys a higher status than a master – servant employment. Moreso, employment with statutory flavour can only be determined in line with laid down rules and procedure. The procedure for the determination of employment of this nature is as captioned in the relevant provisions of the Public Service Rules 2010, particularly Rules 030302 and 030307 of the Public Service Rules 2010. Under the Public Service Rules, the procedure for dismissal is set off by the issuance of query to the affected persons. Thereafter, if his response is not satisfactory, a disciplinary committee is set up to investigate the allegations and the affected person will be summoned before the panel to give his own account. In the case herein, if exhibit B – a letter dated March 8, 2005 titled QUERY is anything to go by, the message it conveys is that Claimant had already appeared before a disciplinary committee to which he made oral representation. Claimant contested this letter on the ground that it is fraudulent and predicated on a development that never was. See Paragraph 16 of Claimant’s Statement of Facts. There is no evidence in this Court by the Defendant before this Honourable Court to rebut the claim of the Claimant. From all the evidence before this Honourable Court, this Court is convinced that there was no prior Disciplinary Committee before Exhibit B was issued to the Claimant, and I so hold. Moreso, if the position of the law is that a query comes before Disciplinary Committee is set up, then Exhibit B which set out to make reference to a Disciplinary Committee that never was is by itself a document of no moment, and I so hold.
Another document this Court would like to comment on is the letter dated February 23, 2005 titled “Irregular and Abscondment from Duty Post” by the Defendant to Claimant to which Claimant replied vide the letter dated 12th February, 2005 titled “Reply to Query”. The former and the latter documents above were all admitted as parts of Exhibit E. Whereas the said document qualifies as a query, Claimant cannot be accused of not replying for he actually answered the query. This Court wishes to state that employers as well as superiors who have subordinates under them should try as much as possible to refrain themselves from the temptation and the spur of terminating the appointment of employees in a manner similar to calling a dog a bad name for the purpose hanging it. Every allegation, inasmuch as it is capable of bringing to an abrupt end the employment of a person should be properly investigated and the procedure provided by law should be strictly followed. It is in this vein that the Court stated clearly in Ogieva V. Igbinedion (2005) All FWLR (Pt. 260) Pg. 85 @ pg. 87 as follows:
Where a statutory requirement for exercise of a legal authority is laid down, it is expected that the public body invested with the authority would follow the requirement to details.
The non-observance in the process of reaching its decision renders the decision itself a nullity, In other words, when a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person property or office, such procedure must be strictly followed.
From all the evidence before this Honourable Court, I really cannot fathom out how Defendant complied with the laid down procedure in the dismissal of the Claimant for if the sins of the Claimant is as set out in the dismissal letter, then the Defendant ought to have stated them in a query followed by a panel of investigation that will give the Claimant the opportunity to appear and exculpate himself.
For all that have been said above, the claim of the Claimant succeeds as follows:
CLAIM 1 Succeeds
CLAIM 2 Fails
CLAIM 3 Succeeds
CLAIM 4 Fails
CLAIM 5 Fails: There is nothing before Court to substantiate same
CLAIM 6 Succeeds to the extent that the Court awards the sum of N2,000,000.00 (Two Million Naira) as exemplary damages against the Defendant.
CLAIM 7 Succeeds.
For the avoidance of doubt, the Court hereby declares/orders as follows:
THE COURT HEREBY ORDERS that the Claimant be reinstated to his employment by the Defendant which he was purportedly dismissed from on the 20th day of April, 2005 with his salaries
and entitlements commencing February 2005 till judgment.
THE COURT HEREBY DECLARES that the purported dismissal of the Claimant from the employment of the Defendant by the Defendant vide dismissal letter dated 20th day of April, 2005 with reference No. CCT/HQ/252/P/1/112 is wrongful, null, void and of no effect.
THE COURT HEREBY ORDERS the Defendant to pay Claimant the sum of N2,000,000.00 (Two Million Naira) being amount awarded as exemplary damages against Defendant in favour of Claimant.
THE COURT HEREBY ORDERS Defendant to promote Claimant, provided Claimant has fulfilled every condition necessary for his promotion, to the same grade level as his colleagues who were at the same grade level at the time he was purportedly dismissed.
Judgment is entered accordingly.
……………………………….
HON. JUSTICE M.N ESOWE
