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National Industrial Court

MR. PETER NWAKPA VS CIVIL SERVICE COMMISSION, EBONYI STATE  AND ORS

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  IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 26th September 2018

                                

SUIT NO. NICN/ABK/2M/2013

 

BETWEEN

 

  1. PETER NWAKPA

                                                                   

CLAIMANT

 

AND

 

  1. CIVIL SERVICE COMMISSION, EBONYI STATE    
  2. ATTORNEY GENERAL EBONYI STATE                
  3. HEAD OF SERVICE, EBONYI STATE                    
  4. G. M. MBAM                                                        
  5. ELDER K. C. OBINI                                                                    
  6. B. O. C. OMOGO                                                             
  7. MRS. VIRGY OKETA                                            
  8. S. U. EWA                                                             
  9. CHIEF WILFRED NKWAGU                                  

[For themselves and on behalf of the Members of Senior

Staff Disciplinary Committee]

 

DEFENDANTS

 

REPRESENTATION:

 

Friday Ogazi Esq. with Petrus Elechi Esq. and Joseph Obina Nwanga Esq. for the Claimant

Paul Mgbada Awada Esq., Director Civil Litigation, Ministry of Justice, Ebonyi State with Okwor Ugwu Esq. [Chief State Counsel], Sixtus Ndubuisi Ogbuinya Esq. [Senior State Counsel], Ikenna Michael Nwidgu Esq. [Senior State Counsel], Chidiebere Fidelia Etu-Odo [Mrs] [Principal State Counsel], Faithvin Nwanchor Esq. [Principal State Counsel, Ruth Soronnadi Esq., Milicent Sewuese Tashan [Miss], State Counsel, Jemimah Ajoke Popoola [Miss] State Counsel, Alyce James Ebri [Miss], State Counsel and Angel Chiamaka Nwachukwu [Miss], State Counsel, Dahiru Lawal Esq., State Counsel, Iheremelam Joseph Esq, State Counsel and Chinyere Anoke Esq., State Counsel for the Defendants

JUDGMENT

 

  1. The Claimant commenced this action by Motion on Notice for an order of certiorari dated 19th August 2013. By order of Court made on 5th November 2013, parties were ordered to file their pleadings. The Claimant filed his General Form of Complaint on 16th June 2014. By a further amended statement of facts filed on 25th January 2016, the Claimant claimed against the Defendants as follows:

  1. A declaration that the Claimant’s purported retirement on the order of 1st Defendant dated 20th day of May 2013 and communicated via a letter with Ref. no. EBS/CSC/09/008/VIII/38 purportedly retiring the Claimant from office prematurely on the grounds of alleged serious misconduct is null and void pursuant to the statutory regulations governing our terms of employment of the Claimant.

  1. An order of the Court quashing the recommendations of the Senior Staff Disciplinary Committee recommending the premature retirement of the Claimant or any other recommendation regarding the Claimant’s employment.

  1. An order of this Court declaring the Claimant’s retirement on the order of the 1st Defendant as unfair, unconstitutional, null and void.

  1. An order of Court awarding the Claimant the sum of N42, 882, 206 [forty-two million, eight hundred and eighty-two thousand, two hundred and six naira] only as special damages.

Particulars of special damages

[i]      Sum of N12, 760, 422 being loss of income [monthly salary] from May 2013 to March 2023 at the current rate of N116, 000 [one hundred and sixteen thousand naira] per month.

[ii]     Sum of N2, 870, 714 being the expected gratuity at the current rate of 220% of the total annual emolument of N1, 304, 870 [one million, three hundred and four thousand, eight hundred and seventy naira].

[iii]    Sum of N27, 251, 070 being the expected pension at the end of service for 35 years being the Claimant’s expected additional life span calculated at current 60% of annual income as the Claimant is expected to live up to 100 years.

  1. Award of sum of N20, 000, 000 [twenty million naira] only as general damages to Claimant.

  1. An interlocutory injunction restraining the respondents or their agents from taking any other step prejudicial to the Claimant’s interest pending the determination of the substantive action.

  1. Cost of this action.

  1. The Claimant filed with the complaint a statement of facts, witness deposition of the Claimant, list of witnesses, list of documents and copies of the documents. After receipt of the processes, the Defendants filed their statement of defence on 4th November 2014 together with a list of their witnesses, statement on oath of the witnesses, list of documents and copies of the documents. By leave of Court granted on 3rd March 2016, the Claimant filed a further amended statement of facts, Claimant’s re-sworn statement on oath and additional list of documents and copies of the documents. The Defendants filed their amended statement of defence, re-sworn statement on oath of Elder K. C. Obini with leave of Court granted on 11th December 2017. The Claimant filed his reply to the amended statement of defence on 16th January 2018 along with his further additional list of documents, copies of the documents and additional sworn statement on oath of the Claimant. Trial commenced on 22nd February 2018 and was concluded on 27th April 2018. The Claimant testified for himself and tendered 21 exhibits in proof of his claim. The Defendants called one witness and tendered 12 exhibits. The case was thereafter adjourned for adoption of final written addresses. Learned Counsel for the Defendants, Mr. Awada, adopted the Defendants’ final written address dated 22nd May 2018 and reply on point of law dated 28th June 2018 as the Defendants’ argument in support of the defence. Learned Counsel for the Claimant, Mr. Ogazi, also adopted the Claimant’s final written address dated 19th June 2018 as his argument in support of the claim. The case was consequently set down for judgment.

CLAIMANT’S CASE

  1. The Claimant’s case is that he was at all times material to this case a full time pensionable civil servant in Ebonyi State Civil Service and attained the position of Director [Administration] Grade level 16 Step 9. He was employed in 1988 by the old Anambra State, exhibit 1; and confirmed in 1994 by Enugu State Government after creation of the State, exhibit 2 and upon creation of Ebonyi State, his service was converted to Principal Personnel Officer Grade level 12, exhibit 4 and subsequently to Assistant Director and then Director [Administration] in 2009, exhibit 7. He was a Director/Desk Officer to the Governor of Ebonyi State until 6th May 2013 when he was queried for absenteeism, indolence, low productivity and absconding from duty at Abuja and causing embarrassment to the Governor, exhibit 6. He answered the query, exhibit 8. He was thereafter redeployed to the Ministry of Justice, exhibit 9 and made to face the Head of Service Senior Staff Disciplinary Committee on 15th May 2013, exhibits 10 and DW5. The report of the Committee was not given to him but on 20th May 2013 he was invited by the 9th Defendant to see the Chairman and members of the 1st Defendant and on the same day he was served a letter of retirement, exhibit 13 hence this action.

DEFENDANTS’ CASE

 

  1. The Defendants’ case as disclosed in their amended statement of defence dated 30th November 2017 is that the Claimant was a Director [Administration] but having been compulsorily retired from the services of Ebonyi State Government ceased to be a civil servant and consequently no longer protected by the relevant laws and rules applicable to civil servants in the State. The Defendants state that in the course of the Claimant’s travel with the Governor of Ebonyi State between 21st and 26th April 2013, he was absent from his duty post on 25th April 2013 without permission and when the Governor requested for his services he was unavailable and this caused serious embarrassment to the Governor and upon their return to Abakaliki the Claimant was issued a query for absenteeism, indolence, low productivity and absconding from duty at Abuja and the Claimant admitted the allegations in his answer to the query. It is the Defendants’ case that the 9th Defendant was a mere observer at the Senior Staff Disciplinary Committee and though some members of the Disciplinary Committee were appointed by the “Federal Service Commission” that did not stop the Claimant from being appointed as Director in the Commission.

 SUBMISSION ON BEHALF OF THE DEFENDANTS

  1. The Defendants formulated three issues for determination in their final written address, namely:

  1. Whether from the totality of the evidence before this Court, the Claimant has successfully proved his case to be entitled to the judgment of this Court?

  1. Whether the Claimant can validly take up fresh appointment into a pensionable position in the Federal Civil Service Commission whether or not he had retired from the services of Ebonyi State Government in a pensionable position?

  1. Whether the procedure leading to the compulsory retirement of the Claimant infringed into his fundamental right to fair hearing?

Arguing issue one, learned Counsel for the Defendants submitted that by Rule 030402[e] of the Public Service Rules 2008 absence from duty without leave is a serious misconduct and the absence of the Claimant at the time the Governor looked for him constituted absence from duty without leave in breach of this Rule. Learned Counsel referred to Rule 030402[w] and urged the Court to consider this Rule sui generis to the other specific acts of serious misconduct listed in the Rule. While agreeing that the applicable disciplinary procedure for absence from duty without leave is as set out in Rules 030302 to 030306 of the Public Service Rules and Rule 17 of the Guidelines for Appointments, Promotion and Discipline, he contended that Rule 14[i] of the Guidelines allows a departure from Rule 17. He argued that the foregoing notwithstanding, the Claimant has not discharged the onus of proving the unlawfulness of his retirement and so there is nothing for the Defendants to disprove and referred to Goodwill & Trust Investment Ltd. v. Witt & Busch Ltd. [2011] 45.1 NSCQR 122.

Canvassing issue two learned Counsel explained that Rule 020205[a] of the Public Service Rules provides that to be eligible for appointment into the Federal Public Service the applicant must not be less than 18 years and not more than 50 years. He submitted that the Claimant was over 50 years when he took up an appointment in the Federal Public Service. It was also contended that there is no evidence that the Claimant obtained the approval of the Federal Public Service Commission before his appointment in breach of Rule 020206[a] and urged the Court to apply section 167[d] of the Evidence Act 2011 against the Claimant.

On issue three, it was argued that allowing the Claimant to respond to the allegations against him and inviting him to the Disciplinary and Civil Service Committees constituted sufficient fair hearing. His refusal to make further comment to the Civil Service Committee even after given time to do so is not a denial of fair hearing as a tribunal cannot force a party to take advantage of the opportunity created to present his case and relied on Otunba Adesesan Oguntayo v. Prince Fatai Adelaja [2009] 39 NSCQR 639 at 674. Learned Counsel contended that the presence of the 9th Defendant in the Civil Service Commission Committee did not breach the rule of nemo judex in causa sua as he was a mere observer in the Disciplinary Committee.

 

SUBMISSION ON BEHALF OF THE CLAIMANT

  1. The Claimant raised two issues for determination in his final written address, to wit:

  1. Whether in view of the evidence adduced and facts of this case, has the Claimant made out a case for declaring the disciplinary process and the order of compulsory retirement a nullity the same having been arrived at in breach of the rules of fair hearing and the provisions of the statutes and regulations governing the terms of appointment?

  1. Whether the Claimant has proved that he is entitled to the reliefs sought?

Arguing issue one, learned Counsel contended that the Claimant has made out a case of breach of fair hearing in the disciplinary process leading to his compulsory retirement; and that there was no compliance with the statutes and regulations governing his terms of employment, and as a result the Court should declare his retirement a nullity. It was contended that the Senior Staff Disciplinary Committee was constituted in a manner that did not guarantee its impartiality, fairness and integrity because the 6th, 7th and 8th Defendants were persons with vested interest in the subject of the allegation against the Claimant. Continuing, learned Counsel argued that using the test of the ordinary reasonable person, there is a likelihood of bias and referred to Garba v. University of Maiduguri [1986] 1 NWLR 550. It was also submitted that a fundamental principle of fair hearing and natural justice is that a person who had previous knowledge of a matter or who at some stage associated with it should not adjudicate upon the issue because he is not likely to approach the issue with open mind and referred to Oyelade v. Araoye & A. G. Western Nigeria [1968] NMLR 41. It was also contended that exhibit 10 did not contain particulars of allegations against the Claimant in breach of section 04306 of the Public Service Rules 2000 and the Claimant was not given a copy of the report of the Disciplinary Committee. He referred to sections 04305 and 04306 of the Public Service Rules and Part V paragraphs 17, 19-21 [i] and [ii] of the Guidelines for Appointment, Promotion and Discipline and submitted that where there is a breach of the rules of fair hearing, the decision is a nullity and must be set aside and relied on A.G. Federation v. Abacha [2011] All FWLR [pt.566] 445, Saleh v. Munguno [2003] 1 NWLR [pt.801] 221.  It was submitted that where an employment is with statutory flavour it must be terminated strictly in the manner prescribed by statute. Any other manner of termination which is inconsistent with the relevant statute is null and void and referred to P.H.C.N Plc v. Offoelo [2013] All FWLR [pt.664] 1, Psychiatric Hospital Management Board v. Ejitagha [2000] All FWLR [pt.9] 1510 and Shitta-Bey v. F.P.S.C [1981] 1 SC 40. Learned Counsel explained that by section 202 of the 1999 Constitution and section 04102 of the Public Service Rules 2000, the appropriate authority to exercise disciplinary control over the Claimant is the 1st Defendant which was not properly constituted to perform the function and referred to exhibits PW 18, 19 and 20 and the case of Ofordum v. Nigerian Army [2015] 1 NWLR [pt.1439] 145

On issue two, learned Counsel argued that by the state of the pleadings, rules of this Court, uncontradicted evidence adduced at the trial and applicable laws, the Claimant has made out a case entitling him to the reliefs claimed and urged the Court to answer the question in the affirmative.

REPLY ON POINT OF LAW

  1. By way of reply on point of law, the Defendants contended that the case of Garba v. University of Maiduguri [supra] does not apply to this case as crime is not in issue. It was also submitted that the requirement of fair hearing must depend on the circumstances of the case, the nature of the enquiry and the subject matter being investigated and referred to Russell v. Duke of Norfolk [1949] 1 All ER 109 at 188. Finally, it was submitted that it is a misconception to give a sweeping interpretation of Araoye v. A. G. Western Nigeria [supra] as the Claimant did to the effect that a person who had previous knowledge of a matter or who was at some stage associated with it should be disqualified from adjudicating on the matter; as this is tantamount to excluding one who was a mere witness to a proceeding without any participatory role.

 

COURT’S DECISION

  1. I have considered the processes filed in this suit and submissions of learned Counsel for the parties. From the pleadings and the totality of evidence led, the main issue for determination in this suit is whether the Claimant was unlawfully retired from the Ebonyi State Civil Service? Issues one and three of the Defendants’ issues for determination and the Claimant’s issues for determination can be subsumed under this main issue for determination. In dealing with this issue, I will consider the ancillary issue raised by the Defendants in their pleadings and written address. Parties are agreed that the Claimant’s employment enjoys statutory flavour. However, the Defendants contend that having been compulsorily retired from the services of Ebonyi State Government, the Claimant ceased to be a civil servant and consequently no longer protected by the relevant laws and rules applicable to civil servants in the State. This argument is standing on quicksand. The substratum of the Claimant’s claim is that in retiring him the Defendants did not comply with the applicable rules. The challenge is against what happened to him while in service; consequently, the rules apply to him with equal force. Also, I observe that learned Counsel for the Claimant made repeated reference to the Public Service Rules 2000. However, looking at exhibits 11 and DW 8, it is clear that the Senior Staff Disciplinary Committee applied the Public Service Rules 2008 in its proceedings. Chapter 3 of the Public Service Rules 2008 is in pari materia with Chapter 4 of the Public Service Rules 2000 except that Rule 04306 in the 2000 Rules is now Rule 030307 in the 2008 Rules. Consequently, references in this judgment shall be to the 2008 Rules [“the Rules”] which was the extant Rules when the cause of action arose and the Rules applied by the disciplinary committee in the proceedings against the Claimant.

  1. It is now trite law that the Public Service Rules invests in public servants, of which the Claimant is one, a legal status higher than that of the ordinary master and servant relationship. As a result, the Claimant can only be retired in accordance with the Rules. The Public Service Rules has the force of law and strict compliance is enjoined. See Nigerian Maritime Administration and Safety Agency v. Stephen A. D. Odey [2013] LPELR-21402[CA] at page 22, Federal Airports Authority of Nigeria v. Sylvester G. Nwoye [2013] 2 ACELR 162 at 187 and Power Holding Company of Nigeria Plc v. Mr. I. C. Offoelo [2014] 3 ACELR 1 at 19 & 21. The initial burden of proof of non-compliance with the Rules rests on the Claimant. See sections 131[1] and 133[1] of the Evidence Act, 2011 and Bukar Modu Aji v. Chad Basin Development Authority & Anor. [2016] 7 ACELR 1 at 15. What is the evidence adduced by the Claimant in proof of non-compliance? The Claimant’s evidence is in paragraphs 17 to 55 of his re-sworn statement on oath dated 25th January 2016. The thrust of his evidence is that exhibit 6, the query, was an afterthought and was issued after the 4th, 6th, 7th and 8th Defendants attended the same interview on 3rd May 2013 and discovered that he had been previously interviewed for the position. He complained that exhibit 6 is irregular as the 4th Defendant was not the Director of Administration. Also, he stated that the letter of invitation from the Senior Staff Disciplinary Committee did not contain particulars of the allegations against him and the Committee was constituted in a manner that did not guarantee its impartiality as some of the members had an interest to serve. The Claimant stated that the 1st Defendant did not afford him adequate time to defend himself, did not give him a copy of the report of the Senior Staff Disciplinary Committee; was not properly constituted to take the decision to retire him and that the 9th Defendant who sat on the Committee of the 1st Defendant was on the Senior Staff Disciplinary Committee. The Claimant referred to Rules 04305 and 04306 of the Public Service Rules 2000 and paragraph 17 Part V of the Guidelines for Appointments, Promotion and Discipline in the Civil Service in support of his case. It is a fact that the Claimant was queried by the Chief of Staff to the Governor, the 4th Defendant, and he answered the query. For clarity the query is reproduced here.

  1. It is also a fact that the 4th Defendant endorsed a copy of the query to the 3rd Defendant, the Head of Service, and by letter dated 9th May 2013, exhibit DW4, forwarded the Claimant’s answer to the 3rd Defendant for necessary action. Exhibit DW4 is instructive and reproduced here:

After receipt of exhibit DW4, the 3rd Defendant set up a Senior Staff Disciplinary Committee which, by exhibit DW5 dated 14th May 2013 but received by the Claimant at 9.30am on 15th May 2013, invited him to appear before the Committee at 11am on that day. For better understanding, the letter of invitation, exhibit 10, is also set out below.

  1. The question that arises from the foregoing is whether the 3rd Defendant is competent to set up the Senior Staff Disciplinary Committee to try the Claimant. In answering this question, I will look at the relevant regulations. Section 2[1][b], Part 11 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended [“the Constitution”] provides that:

“2. [1] The Commission shall have power without prejudice to the powers vested in the Governor and the State Judicial Service Commission to –

“[b]    dismiss and exercise disciplinary control over persons holding such offices.”

Rule 030102 of the Public Service Rules 2008 provides:

“The power to dismiss and to exercise disciplinary control over officers in the Federal Public Service is vested in the Federal Civil Service Commission. This power may be delegated to any member of the Commission or any officer in the Federal Civil Service.”

See also section 207 of the Constitution and paragraph 4 of the Guidelines for Appointments, Promotion and Discipline in the Civil Service [“the Guidelines”]. By the combined force of sections 197[1] and 202 of and paragraph 2[1][b], Part 11 of the Third Schedule to the Constitution, the power of discipline of the Claimant inheres in the Ebonyi State Civil Service Commission [“the Commission”] and there is no evidence before me that this power has been delegated to the 3rd and 4th Defendants. Paragraph 4 of the Guidelines delegated the power of promotion and discipline to Ministries and Extra-Ministerial Departments and Offices in respect of staff on Grade levels 01 – 06 only. There is nothing in the Constitution, the Rules or the Guidelines authorising the Head of Service to initiate disciplinary proceedings against an officer on the Claimant’s level; and there is no evidence before me that the powers of the Commission were delegated to the 3rd Defendant. The Commission is only authorised to consult the 3rd Defendant in the exercise of its powers in relation to Heads of Divisions of Ministries or Departments of the Government of the State. See section 2[2] Part 11 of the Third Schedule to the Constitution. Also, where the Senior Staff Committee is of the opinion that disciplinary actions should be taken against an officer on Salary Grade levels 13 – 16, it will make recommendations through the Head of Service to the Commission. See paragraph 5.2[b][ii] of the Guidelines. It is, therefore, my firm view and I so hold that the constitution of the Senior Staff Disciplinary Committee by the 3rd Defendant to try the Claimant is irregular and in breach of the Constitution, the Rules and the Guidelines. But, if I am wrong, it is my considered opinion that exhibit 10 is in breach of the Rules. It did not specify the misconduct alleged against the Claimant, the rules he breached and the likely punishment for the misconduct. Chapter 3 of the Rules and paragraphs 17 to 21 of the Guidelines prescribe the disciplinary procedure to be adopted in dealing with erring officers.

  1. For a better understanding of the disciplinary procedure, the relevant portions of the Rules and the Guidelines are reproduced below. Rule 030302[c] provides:

“030302. – As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him/her, it shall be his/her duty to inform the officer in writing giving details of unsatisfactory behaviour and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether:

“[c] the officer has not exculpated himself/herself and deserves some punishment, in which case Rule 030304 shall apply.”

Rule 030304 states:

“030304. – [a] It shall be the duty of every officer to report any case of misconduct that comes to his/her notice to an officer superior to the officer involved.”

“[b] When an officer’s misconduct is brought to the notice of his/her superior officer, it shall be the duty of that superior officer to report it to the Permanent Secretary/Head of Extra-Ministerial Office without delay. If he/she 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 Office shall take action in accordance with Rule 030302 – 030306 as appropriate and, if necessary, shall interdict the officer.”

It is important to note the use of the words “as appropriate” in sub-rule c. This phrase means “as applicable”. That is to say it is not everything in Rules 030302 – 030306 that may be applicable in every given situation. See the case of Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 40. Also, there is an obvious mistake in line 3 of Rule 030304[c]. The figure 030306 should read 030307 to be meaningful. Rule 030306 does not provide for the procedure for dismissal. Rule 030306 merely deals with suspension of disciplinary proceedings against a female officer who is on maternity leave. Rule 030307 prescribes the procedure which must followed before an officer can be dismissed. Rule 030307 is in pari materia with Rule 04306 of the Public Service Rules 2000 except that it delimits the time for completion of disciplinary proceedings. This mistake is repeated in Rules 030305 and 030403 and must be a draftsman’s error arising from the copying of similar rules in the 2000 Rules without changing the numbering. Rule 030305 provides, inter alia, that:

“If it is presented to the Federal Civil Service Commission that an officer has been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 030306 with a view to dismissal, …”

It is my considered opinion that my responsibility is to construe this provision in a manner that implements, rather than defeats, the legislative intention. In doing this I am duty bound to correct this manifest error. Consequently, I hold the view that the Rule intended by the draftsman in Rules 030304[c], 030305 and 030403 is Rule 030307 dealing with the procedure for dismissing an officer and not Rule 030306. I find support for this position in the case of Federal Civil Service Commission & 2 Ors. v. J. O. Laoye [1989] 2 NWLR [pt. 106] 652 at 682, where Eso, J.S.C., held:

“It has long been established that the legislator himself intends the interpreter of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention.”

  1. Rule 030307 provides:

“030307. – Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule [underlining mine]:

“[i]     The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point, it must relate the circumstances of the offences, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document[s] or report[s] used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to the documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself;

“[ii]    The query, or preliminary letter, shall be in the format shown in Appendix II;

“[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 Commission may take such action against the officer as it deems appropriate;

“[iv]   If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;

“[v]    Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;

“[vi]   The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;

“[vii]  Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;

“[viii] If during the course of the inquiry, further grounds for dismissal are disclosed, and the Federal Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;

“[ix]   The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses;

“[x]    If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

“[xi]   If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;

“[xii]  If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly; and

“[xiii] All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.”

  1. It will be observed that the provision of Rule 030307 is mandatory and by Rule 030101 Chapter 3 is to be read in conjunction with the Guidelines. Paragraph 1, Part V of the Guidelines provides that:

“Where the Permanent Secretary is of the opinion that disciplinary proceedings should be instituted against any Officer, he shall instruct the appropriate Staff Committee through the Director of Administration to initiate such proceedings in accordance with these Guidelines.”

I should mention here that the Permanent Secretary referred to in this paragraph is the Permanent Secretary of the employee’s Ministry or Extra-Ministerial Office. Paragraphs 17 and 18 of the Guidelines provide:

“17.    Whenever the Permanent Secretary considers it necessary to institute disciplinary proceedings against an Officer and he is of the opinion that the misconduct alleged against the Officer is such as would, if proved, justify the Officer’s dismissal from the Service, he should instruct the Director of Administration to commence disciplinary procedures as follows:

[i]      The Director of Administration shall prepare and forward to the Officer a brief statement of the facts of which the allegation against him is based and shall call on him to state in writing within a specified reasonable period, any grounds upon which he relies to exculpate himself.

[ii]     The Director of Administration shall, immediately after the expiration of the specified period, forward to the appropriate Committee with his comments or recommendations any such statement as the Officer may have furnished or report to the appropriate Committee the fact that the Officer has failed to furnish an exculpatory statement.”

“18.    Based on the report of the Committee, the Permanent Secretary shall:

          [i]      consider the issue, depending on the facts disclosed;

          [ii]     seek further clarifications of any doubtful points or call on the

Officer to submit fresh representations through the Director of Administration who shall add his own comments and recommendations as to punishments, if any, to be imposed;

[iii]    appoint a special disciplinary Committee comprising at least three [3] persons to hold an inquiry into the matter provided that none of the accusers, including all members of the relevant Committee and the Director of Administration, shall be a member of such disciplinary Committee; or

[iv]    forward the reports or statement together with comments and recommendations through the Office of the Head of Service to the Civil Service Commission for Officers on Grade Levels 13 – 16.”

  1. A summary of the disciplinary procedure prescribed in Rules 030302, 030304, 030307 and paragraphs 1, 17 and 18 of Part V of the Guidelines as it relates to the Claimant can be presented thus:

  1. Query by the erring officer’s immediate superior and answer to the query.
  2. Where he finds the response unsatisfactory, he reports the matter to the Permanent Secretary in that Ministry or Extra-Ministerial Office with his recommendation.
  3. The Permanent Secretary shall, if he is of the opinion that disciplinary proceedings should be instituted, comply with Rules 030302 to 030307 and Paragraphs 1, 17 and 18 of the Guidelines. For the offence alleged against the Claimant which attracts dismissal, the Permanent Secretary shall instruct the Director of Administration to initiate disciplinary proceedings.
  4. The Director of Administration shall forward a brief statement of the facts alleged against the officer and call on him to respond within a specified reasonable time.
  5. On expiration of the period, the Director of Administration shall forward the officer’s response with his recommendation to the Senior Staff Committee.
  6. The Senior Staff Committee shall review the complaint and forward its report through the Director of Administration to the Permanent Secretary.
  7. The Permanent Secretary shall review the report and, if still of the opinion that a case for disciplinary action has been made out against the officer, forward the reports together with his comments through the Head of Service to the Civil Service Commission.
  8. On receipt of the reports and comments through the Head of Service, the Civil Service Commission will commence disciplinary proceedings in accordance with Rule 030307 beginning with a query to the officer and receiving a response from the officer.
  9. If the Civil Service Commission believes that the officer has not exculpated himself and should be dismissed, it shall act immediately.
  10. If, after reviewing the officer’s response, the Civil Service Commission is of the opinion that the officer does not deserve to be dismissed but deserves some other punishment, it shall impose such punishment as it considers appropriate.

A board of inquiry was not constituted in this case and so the other aspects of the disciplinary procedure are outside the scope of this judgment.

  1. I have gone to this length to show the various steps which must be taken before the Claimant is retired from the civil service. It should be noted that the procedure prescribed in Rules 030302, 030304, 030307 and paragraphs 1, 17 and 18 of Part V of the Guidelines are not in the alternative. These are mandatory steps, especially since Chapter three is to be read in conjunction with the Guidelines. Each step precedes the other. It will be observed that the Commission can deal with the complaint summarily. This is the purport of Rule 030307 [iii]. It is within its discretion to set up a board of inquiry, but it is not allowed to take evidence or hear witnesses. In the instant case, no board of inquiry was established. Applying the above procedure to the facts as established in this case, can it be reasonably said that the Commission complied with this procedure? The answer is undoubtedly in the negative. The steps adopted by the Commission in this case is an aberration. The 4th Defendant queried the Claimant and forwarded a copy of the query and the Claimant’s response to the 3rd Defendant who constituted a Disciplinary Committee. The Disciplinary Committee invited the Claimant, listened to his oral submission in elaboration of his written response to the query, reviewed documentary evidence which were not made available to the Claimant. See pages 1, 2 and 3 of exhibit DW 8. On completion of its assignment the Disciplinary Committee forwarded its report to the 3rd Defendant; which in turn forwarded the report to the 1st Defendant. After receipt of the report the 1st Defendant invited the Claimant for a discussion on the report. It did not avail the Claimant of the report and did not give the Claimant sufficient time to prepare his defence. This is in breach of Paragraph 19[vi] of the Guidelines. On the same day, it handed over the letter of retirement, exhibit 13, to the Claimant giving the impression that a decision to retire the Claimant had been taken before he was invited by the Commission. SeeFederal University of Technology, Yola v. Danjuma Maiwuya & 2Ors. [2013] All FWLR [pt. 677] 753 at 765. The entire exercise and exhibit 13 makes a mockery of the Public Service Rules 2009 and the Guidelines. Exhibit 13 is instructive and I will reproduce it here.

  1. The conclusion of the Commission is at variance with the report of the Disciplinary Committee. The Disciplinary Committee exonerated the Claimant of the charges of absenteeism, indolence and low productivity but found him culpable for the offence of absconding, which offence is not prescribed in the Public Service Rules and the punishment for it is not specified in the Rules or the Guidelines. This notwithstanding, the Commission, in paragraph 2 of exhibit 13, found that:

“The Commission further considered diligently the recommendations of the Senior Staff Disciplinary Committee on the above serious misconduct of absenting yourself from duty without permission forwarded to the Commission by the Head of Service (EB/HOS/S.5/11/21 dated 17th May 2013.”

 

Paragraph 3 is more intriguing. The Commission found that:

“In your oral and written representations you admitted that you absented yourself from duty without leave or permission on Thursday, 25th April 2013 for an interview with the Federal Civil Service Commission, Abuja.”

Paragraph 3 above contradicts paragraph 1 of exhibit 13. If the Claimant affirmed his written representation, then there was no time he admitted being absent on Thursday, 25th April 2013. The Claimant’s answer to the query, exhibits 8 and DW 6 is reproduced here:

Exhibits 8 and DW 6 juxtaposed with exhibits 11 and 13 will reveal the lie in exhibit 13 and show the shoddy manner in which the Commission carried out this rather important assignment.

  1. There is no gainsaying the fact that the action taken by the 4th or 3rd Defendants cannot be equated with or substituted for the steps to be taken by the 1st Defendant, who is statutorily empowered to discipline the Claimant. This is the ratio decidendi in the case ofFederal Civil Service Commission & 2Ors. v. J. O. Laoye [supra] at pages 683 and 697. Invariably, any exercise by the 1st Defendant of its power of discipline must comply with the provisions of Rules 030302, 030304, 030307 and paragraphs 1, 17 and 18 of Part V of the Guidelines. See Rule 030403. This procedure was not followed. Exhibit 10 did not emanate from the 1st Defendant. But, even if we accept for the moment that the Committee was properly constituted and acted on behalf of the 1st Defendant, exhibit 10 is a mere invitation and did not specify the misconduct alleged against the Claimant, the Rule breached and the likely punishment. It is captioned “Special invitation on gross misconduct”. The reference in the body of the letter to “the case of Gross Misconduct preferred against you on 15th May, 2013…”, in my opinion, does not suffice. Rule 030402 provides for varying cases of serious misconduct and if the Rules are to serve its purpose, the particular misconduct alleged against the Claimant must be specified. See Federal University of Technology, Yola v. Danjuma Maiwuya & 2Ors. [supra] at page 764. It cannot reasonably be argued, as learned Counsel for the Defendants attempted to do in paragraph 5.08 [b] page 16 of the final written address, that the Claimant did not alleged any inability to understand why he was invited by the Committee. The issue, in my firm view, is not whether the Claimant understood why he was invited but whether exhibit 10 complies with Rule 030307[i]. Rule 030403 provides that:

“Disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306.” [Underlining mine]

As observed above, the figure 030306 in that Rule is an error and it should properly read 030307. The operative word in Rule 030403 is “shall” which, in this context, is an imperative and does not admit of any discretion. See Rear Admiral Francis Echie Agbiti v. The Nigerian Army [2011] 45 NSCQR vol.1 388 at 433 and Veronica Nneka N. Ibeziako v. Professor Stephen M. Ibeziako [2016] LPELR-40958[CA] at pages 11-12. It is a mandatory provision and cannot be waived. Exhibit 6 will not suffice in these circumstances. Exhibit 6, in my considered opinion, is the first step in the disciplinary process prescribed in Rule 030302. It is for this reason that I respectfully disagree with learned Counsel for the Claimant when he argued in paragraph 4.2.0[ii] and [iii] of the Claimant’s final written address that exhibit 6 was not issued by the appropriate authority. Rule 030302 provides, inter alia, that:

“As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him/her, it shall be his/her duty to inform the officer in writing giving details of unsatisfactory behaviour and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action.”

There is no doubt that the 4th Defendant is superior to the Claimant in the hierarchy of officers in the Government House. Being his superior, the 4th Defendant can, pursuant to Rule 030302, properly serve a query on the Claimant. However, this is a preliminary step and does not derogate from the responsibility of the 1st Defendant upon receipt of the report to comply with Rule 030307 and paragraphs 17 to 21 of the Guidelines. This is so because there is nothing before me to show that the 1st Defendant delegated its responsibility to the 4th and 3rd Defendants pursuant to section 207 of the Constitution. See Federal Civil Service Commission & 2Ors. v. J. O. Laoye [supra] at 697.

  1. This brings me to the argument of learned Counsel for the Defendants in paragraph 5.07 of the written address that the disciplinary procedure prescribed in Rules 030302 to 030306 of the Public Service Rules and Rule 17 of the Guidelines “is sifted out in Rule 14[1] of these Guidelines”. Rule 14[1] of the Guidelines provides that where an officer is absent without leave or reasonable cause, the appropriate authority may dismiss him without following the procedure prescribed in Rule 17. With all due respect to learned Counsel, this argument is untenable. First, the 1st Defendant, though aware of its options under Rule 14[1] of the Guidelines, elected to follow the disciplinary process and it is duty bound to prove that the procedure adopted complies with the prescribed procedure. SeePsychiatric Hospitals Management Board v. E. O. Ejitagha [2000] 6 SC [pt.11] 1 at 16, where Ayoola, J.S.C. held that:

“Where a person, body or authority claims to have acted pursuant to powers granted by a statute, such person, body or authority must justify the act, if challenged, by showing that the statute applied in the circumstances and that or it was empowered to act under it.”

 

Uwaifo, J.S.C., puts it more directly on page 4 of the Report thus:

“To force a public servant into retirement, that is, before he gets to his retirement age is an unusual action against him in his career. Such an action could, admittedly, be due to a variety of reasons including ill-health, redundancy, reorganisation, retrenchment, unproductivity etc., or even upon contractual or regulatory powers conferred on and exercised by the employer. When an employer relies on one or more of these reasons, he would be expected to have facts or the law in support. The burden is on him to satisfy the court on this.”

 

The Disciplinary Committee having exonerated the Claimant of the charge of absenteeism, Paragraph 14[1] of the Guidelines becomes inapplicable. Moreover, if the 1st Defendant exercised that option, the report of the Commission must clearly indicate that it did so. There is nothing before me to show that the Commission exercised that option. The submission of learned Counsel, with due respect, goes to no issue. See Rear Admiral Francis Echie Agbiti v. The Nigerian Army [supra] at 434.

  1. The Claimant also challenged his retirement on other grounds. First, he alleged in paragraphs 47 – 49 of his re-sworn statement on oath that the allegation against him was an afterthought and concocted only after the 4th, 6th, 7th and 8th Defendants attended the same interview on 3rd May 2013 and realised that he had been interviewed earlier. He therefore alleged that the 6th, 7th and 8th Defendants who sat on the Senior Staff Disciplinary Committee were competitors with him and thus likely to be biased against him. He equally contended that the 9th Defendant who sat on the Senior Staff Disciplinary Committee also sat on the 2-man panel of the 1st Defendant which reviewed the report of the Senior Staff Disciplinary Committee and therefore not likely to be fair to him. This evidence brings to the fore the rules of natural justice. The Defendants’ response to this is in paragraphs 37 – 41, 7 and 56 of the Defendants’ witness’ re-sworn statement on oath. In paragraph 41 the Defendants stated that the Claimant’s misconduct got to the appropriate authority in Abakaliki a day after the incident, but did not explain the delay in issuing the query between the 26th April 2013, when the appropriate authority allegedly got the information, and 6th May 2013 lending credence to the Claimant’s evidence that the query resulted from the 4th, 6th, 7th and 8th Defendants’ discovery on 3rd May 2013 that he attended the interview earlier. The alleged misconduct took place on 25th April 2013. The Claimant returned with the Governor to Abakaliki on 26th April 2013. He was queried on 6th May 2013 about 12 days after. I am inclined to believe the testimony of the Claimant because the sequence of events makes his testimony more plausible. This situation, therefore, casts doubts on the impartiality of the 6th, 7th and 8th Defendants. They can rightly be described as persons with an interest to serve. On the 9th Defendant, the Defendants testified that the 9th Defendant was in the Committee as a mere observer who had no contributions in the deliberations. Although, the 9th Defendant was listed in exhibits DW7 and DW8 as an observer, the record of proceedings of the disciplinary Committee was not tendered to show that he did not participate in the deliberations. But assuming that he did not participate in the deliberations, did his presence on the Committee colour his perception of the case against the Claimant so that when he sat on the 1st Defendant’s 2-man Committee he could not review the report dispassionately? Put differently, what would a reasonable man watching the 9th Defendant sitting in both Committees think? Having been part of the team that handed down a verdict of guilty against the Claimant, is it likely that the 9th Defendant was not influenced by the proceedings in the disciplinary committee? I think he was. The fact that he was listed as an observer, in my opinion, is immaterial. He was part of the Committee. He heard the evidence for and against the Claimant, listened to the deliberations and appended his signature to the report. He could not at the 1st Defendant’s Committee be expected to derogate from the report he signed. SeeFederal University of Technology, Yola v. Danjuma Maiwuya & 2 Ors. [supra] at page 765, where Ndukwe-Anyanwu, J.C.A., held:

“Where a panel is set up to inquire into the employee’s misconduct, the mind of the adjudicator must be free so that there is no possible element of bias. Bias is evident where it is clear that a member of the panel has some interest in the matter such as friendship or foreknowledge of the facts of the case which may raise reasonable doubt as to his ability to be fair.”

 

There is no doubt that the 9th Defendant had a foreknowledge of the facts as he sat on the 1st Defendant’s Committee and this had the potential of affecting his judgment.

  1. The law is trite that any administrative panel whose decision is likely to affect the rights and future of an employee must accord him a fair hearing. Fair hearing connotes the impression given to an ordinary reasonable person watching the proceedings. If he goes with the impression that a person has not been treated fairly then there is a breach of fair hearing. In the Nigerian legal system, fair hearing is not only a common law right it is also a constitutional right. See section 36[1] of the Constitution of the Federal Republic of Nigeria, 1999 and the cases ofRear Admiral Francis Echie Agbiti v. The Nigerian Army [supra] at 439-440 and Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at pages 43 and 52. Fair hearing requires the observance of the twin pillars of the rules of natural justice, audi alteram partem and nemo judex in causa sua. In the exercise of its disciplinary authority over the Claimant, the 1st Defendant is required to observe the rules of natural justice. Not only must it not be biased against the officer, it must not place itself in a position in which it may appear that there is a real likelihood of bias. The test is objective and it is the ordinary reasonable man’s test. In effect, the test of real likelihood of bias is that there must be circumstances from which a reasonable man would think it likely that the decision maker would or did in fact favour one side unfairly. Once the likelihood of bias is established, it destroys the foundation of any decision reached. See National Judicial Council & 4Ors. v. Hon. Mr. Justice C. P. N. Senlong & 2Ors. [2010] LPELR-4582[CA] at pages 31, 52-53 and Rear Admiral Francis Echie Agbiti v. The Nigerian Army [supra] at 440-441.

  1. Does such circumstance exist in this case? The answer is in the affirmative. There is uncontroverted evidence that the 6th, 7th and 8th Defendants attended the interview for which the Claimant was disciplined. The Defendants’ explanation of this absurdity is that the 6th, 7th and 8th Defendants served on the Committee by virtue of their positions and on the directive of the 3rd Defendant. Paragraph 46[iv] of the amended statement of defence is instructive and it is reproduced here:

“iv.     That of the members of the Committee, only 6th, 7th and 8th Defendants applied for the job at the Federal Civil Service Commission. This did not preclude other eligible Ebonyians from applying and securing the job as did one William Alo who never served in the Committee.”

This paragraph was reproduced as paragraphs 54 and 55 of the Defendants’ witness’ re-sworn statement on oath.  There is also unchallenged evidence that the 9th Defendant sat on the disciplinary Committee and on the 1st Defendant’s 2-man Committee. The evidence of the Defendants in paragraphs 7 and 56 of the Defendants’ witness’ re-sworn statement on oath, is that he was a mere observer in the disciplinary committee and did not participate in the deliberations. As stated earlier, assuming for a moment that he did not participate in the deliberations, did his presence on the Committee colour his perception of the case against the Claimant so that when he sat on the 1st Defendant’s 2-man Committee he could not be dispassionate in his review of the report? Put differently, what would a reasonable man watching the 9th Defendant sitting in both Committees think? Having been part of the team that handed down a verdict of guilty against the Claimant and signed the report, could the 9th Defendant reasonably be expected to speak against that report? In cases of bias imputed to a disciplinary Committee or Civil Service Commission, the test is not actual bias but a real likelihood of it. See In the Matter of the Constitution of the Federation v. Re. G. M. Boyo [1970] LPELR-1508[SC] at page 6 and Federal University of Technology, Yola v. Danjuma Maiwuya & 2Ors. [supra] at page 765. The assumption of both roles by the 9th Defendant gives rise to the inference of a real likelihood of bias. It is my firm view and I so hold that that in both cases the real likelihood of bias is established.  The result is that the decisions of the Disciplinary Committee and the Civil Service Commission cannot stand. See National Judicial Council & 4Ors. v. Hon. Mr. Justice C. P. N. Senlong & 2Ors. [supra] at pages 52-53.

  1. There is another issue. The alleged offence for which the Claimant was found culpable is not prescribed in the Rules and the Disciplinary Committee did not refer to any in its report. In paragraph 7.0 of exhibit DW 8 the Disciplinary Committee found:

“Abscondment in the Public Service Highlight means taking leave without permission/or one’s failure to show up when required for duty. Invariably the offence facing one who absented himself from duty stares on the face of the offender on abscondment from duty i.e. where a prima facie case is established.”

Earlier, the Committee had exonerated the Claimant from the offences of absenteeism, indolence and low productivity but found him culpable for abscondment; which according to the Committee has the same ingredients as absenteeism but which was not provided for in the Rules. Interestingly, the Committee referred to appropriate Rules when dealing with the charges of absenteeism, indolence and low productivity but decided to rely of a nebulous “Public Service Highlight” when dealing with the charge of absconding. What this is, where it can be found and the relevant portion of thereof were not stated. Learned Counsel for the Defendants argued in paragraph 5.05 of his final written address that Rule 030402[w] which defines serious acts of misconduct to include “Any other act unbecoming of a Public Officer” is wide enough to accommodate the allegation of “abscondment”. I agree completely with learned Counsel that Rule 030402[w] is wide enough to include the allegation of abscondment. However, it was neither referred to nor relied on by the Disciplinary Committee in arriving at the verdict of guilty; and the Claimant was not at any time informed of the Rule he was alleged to have violated in breach of Rule 030307[i]. The Committee must invoke that sub-rule for it to be applicable. This was not done in this case and therefore that line of argument is untenable. See Rear Admiral Francis Echie Agbiti v. The Nigerian Army [supra] at 434 and Federal University of Technology, Yola v. Danjuma Maiwuya & 2Ors. [supra] at page 764H. If Rule 030307 is to be of any practical effect, the erring officer must be informed of the offence alleged against him, the rule he breached and the punishment for the offence. It will not suffice to bring the officer before the Committee uncertain as to the rules he has violated, pass a verdict of guilty and subsequently begin to fish for an enabling Rule to justify the verdict. This practice will not serve the ends of justice and cannot be endorsed by this Court. Accordingly, I find and hold that Rule 030402[w] was not properly invoked to ground the offence of abscondment. The result is that he was found guilty of an offence which did not exist at the time it was alleged to have been committed. This is in breach of Rule 030307[i]. See also Federal University of Technology, Yola v. Danjuma Maiwuya & 2Ors. [supra] at page 764H.

  1. Applying these legal principles to the facts of this case, I find and hold that the Claimant’s retirement did not follow the prescribed procedure in the Public Service Rules 2008 and paragraphs 1, 17 to 21 Part V of the Guidelines for Appointment, Promotion and Discipline in the Civil Service. Invariably, exhibit 13 is standing on a faulty foundation and bound to crumble with its foundation. You cannot place something on nothing and expect it to stand. Consequently, I make an order quashing the recommendations of the Senior Staff Disciplinary Committee because it is not supported by the Public Service Rules 2008 and was arrived at in a manner that breached the Claimant’s right to a fair hearing. Also, the Claimant’s retirement by the 1st Defendant based on a faulty principle cannot stand and must be and is hereby declared null, void and of no effect whatsoever. The appropriate order to make in the circumstance is one of reinstatement. SeeKwara State Polytechnic, Ilorin & 4Ors. v. Mr. A. O. Oyebanji [2007] LPELR-11829[CA] at page 86 and Mrs. Akinyosoye Yemisi v. Federal Inland Revenue Services [2013] All FWLR [pt.693] 1992 at 2016. However, since the Claimant has secured an employment with the Federal Civil Service Commission, an order for his reinstatement is no longer feasible. Accordingly, I make a consequential order, pursuant to section 14 of the National Industrial Court Act, 2006, directing the 1st Defendant to, within 7 days from the date of this judgment, process the Claimant’s transfer of service to the Federal Civil Service Commission. See Miss Yetunde Zainab Tolani v. Kwara State Judicial Service Commission & 3Ors. [2009] LPELR-8375[CA] at page 59.

  1. Before I conclude, let me address issue two in the Defendants’ issue for determination, to wit: whether the Claimant can validly take up fresh appointment into a pensionable position in the Federal Civil Service Commission whether or not he had retired from the services of Ebonyi State Government in a pensionable position? In arguing this issue, learned Counsel for the Defendants referred to Rules 020205 and 020206 and explained that when the Claimant attended the interview at the Federal Civil Service Commission on 25th April 2013, he was 50 years, one month and 23 days old and his appointment letter is dated 21st August 2013 and therefore not eligible for appointment into the Federal Public Service pursuant to Rule 020205[a]. Relying on Rule 020206[a][ii], learned Counsel further submitted that no candidate shall be appointed to any post in the Federal Civil Service without the specific approval of the Federal Civil Service Commission if he had previously been employed in Government Service and been called upon to retire. He therefore submitted that the failure of the Claimant to produce evidence of the approval was detrimental to his case and urged the Court to apply section 167[d] of the Evidence Act 2011 against the Claimant. Learned Counsel for the Claimant did not respond to this submission. Be that as it may, I am of the considered opinion that this issue did not properly arise from the pleading of the parties. I have looked at the amended statement of defence and the only paragraph dealing with this issue is paragraph 31. The Defendants averred inter alia:

“In further answer to paragraph 34 of the statement of facts, the Defendants aver that though the Claimant had been retired from the service of Ebonyi State Government, he took up another appointment as a Director in the Federal Ministry of Labour and Productivity and was later redeployed to the Public Complaints Commission as Secretary, a post equivalent to a Permanent Secretary in the Federal Civil Service. Both positions of Director and Permanent Secretary are pensionable.”

It is clear that there is no nexus between this pleading and the issue now canvassed by the Defendants. The point I am making is that parties did not join issue on whether the Claimant is qualified for the job in the Federal Public Service or not. The law is settled that parties are bound by their pleadings and cannot urge a case different from that formulated in their pleadings. As a corollary, Courts are bound to decide only the case as formulated on the pleadings of the parties. It is not within the office of the Court to enter into any inquiry outside the pleadings or to adjudicate on any matter not put in issue in the pleading. See Oba Oyebade Lipede & 4Ors. v. Chief Adio Sonekan & Anor. [1995] LPELR-1786[SC] at page 13. In addition, having found that the Claimant’s retirement is null and void and made an order for transfer of his service, the issue becomes academic. Consequently, section 167[d] of the Evidence Act 2011 is inapplicable.

  1. Also, learned Counsel for the Claimant in his issue one submitted that the 1st Defendant was not properly constituted at the time it took the decision to retire the Claimant. From the evidence before the Court, the two members were duly appointed and had the capacity to act at the time. Exhibits DW10 and 11 show that their tenure had been renewed. It is my considered opinion that the subsequent nullification of their appointment in 2015 by the State House of Assembly does not invalidate decisions they took in 2013. The question is, at the time the 1st Defendant took the decision to retire the Claimant, was it duly constituted? If it was, and I am of the view that it was, the subsequent termination of appointments of members of the Commission by the Ebonyi State Government cannot invalidate actions and decisions taken before the termination. It is trite law that rights which have vested will not be affected by subsequent change in policy, decision or even law. See the case ofAlhaja Sobalaje Eleran & 2Ors. v. Dr. Atiku I. Aderonpe [2008] LPELR-3711[CA] at page 29.

4

  1. Finally, learned Counsel for the Defendants in paragraph 1.03 of the final written address explained that this Court foreclosed the Defendants from calling further witnesses even against Counsel’s submission that their two witnesses were away on official functions. With due respect to learned Counsel, this statement is most uncharitable. In paragraph 1.02 of the written address, learned Counsel admitted that he filed an amended statement of defence on 11th December 2017 and filed one re-sworn statement on oath of the 5th Defendant. I have looked at the amended statement of defence and there is no attached list of witnesses or any other witness deposition evincing an intention by the Defendants to call other witnesses. The original statement of defence dated 16th October 2014 contained a list of 6 witnesses and six written depositions. These were not attached to the amended statement of defence implying that they have been abandoned. The law is fairly settled that an amendment of pleading relates back to the time the pleading was filed. Thus, the amended pleading supersedes the earlier pleading. Accordingly, the amended statement of defence dated 30th November 2017 superseded the statement of defence dated 16th October 2014 with the attached witnesses’ depositions. Consequently, the Defendants’ witnesses’ statements on oath dated 4th November 2014 are irrelevant and ought to have been expunged from the records as they no longer define the issues for trial in this suit. I am fortified in this conclusion by the cases ofJoseph Ebeilubhubi Oseyomon & Anor. v. S. D. Ojo [1993] 6 NWLR [pt.299] 344 at 361, Nigerian Telecommunication Ltd. v. Dr. R. G. M. Ikpi [2007] LPELR-4617[CA] at page 10, Bashiru Atanda v. H. Saffeiddine Transport Ltd. [2007] LPELR-8303[CA] at page 14 and University of Ilorin v. Mr. A. I. Adeniran [2007] 6 NWLR [pt. 1031] 498 at 543. In the Oseyomon v. Ojo case, Ogundere, J.C.A. [as he then was] held:

“As each amended or further amended Statement of Defence replaced the previous one, it goes without saying that the further amended Statement of Defence of the 2nd Defendant replaced the original which had a counterclaim, thus eliminating the counterclaim aforesaid.”

Thus, the basis for Counsel’s request for adjournment, in spite of three earlier adjournments for this purpose, to call additional witnesses no longer existed and was rightly refused.

  1. On the whole, I find merit in the Claimant’s case and the action succeeds in part. Reliefs a, b and c succeed and are granted. Reliefs d, e and f fail and are hereby dismissed. Reliefs d and e amount to double compensation. Equity frowns at double compensation. Also, Courts are not known to make orders in vain, seeAndu Makinde & 8Ors. v. Dawuda Akinwale & 7Ors. [1995] LPELR-1828[SC] at page 10 and as a result an injunction cannot lie to restrain a completed act. The retirement of the Claimant having been set aside the basis of reliefs d, e and f no longer exist. For the avoidance of doubt, I hereby hold and order as follows:

  1. It is hereby declared that the Claimant’s retirement on the order of 1st Defendant vide letter dated 20th May 2013 with reference number EBS/CSC/09/008/VIII/38 purportedly retiring him from office prematurely on the grounds of alleged serious misconduct is null and void and hereby set aside.

  1. The recommendations of the Senior Staff Disciplinary Committee recommending the premature retirement of the Claimant are hereby nullified.

  1. The appropriate order to make in the circumstance is one of reinstatement but, since the Claimant has secured an employment in the Federal Public Service, an order for his reinstatement is no longer feasible. Accordingly, I make a consequential order that the 1st Defendant shall within seven [7] days from the date of this judgment process the Claimant’s transfer of service to the Federal Civil Service Commission.

  1. Reliefs d, e and f fail and hereby dismissed.

  1. Cost follows event. Pursuant to Order 55 rules 1 and 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and taking into consideration the age of the case and the processes filed by the Claimant, cost of N100, 000 [one hundred thousand naira] is awarded in favour of the Claimant against the 1st Defendant payable within 7 days from the date of this judgment.

  1. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

26/9/18

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