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National Industrial Court

Mr. Simon A.E. Ajisafe -VS- Police Service Commission & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURAQBLE JUSTICE E. N. AGBAKOBA

 

DATED: 16TH DECEMBER 2019                                      SUIT NO. NICN/ABJ/76/2017

 

BETWEEN

  1. SIMEON A. E. AJISAFE……………………………………………..       CLAIMANT

AND

  1. POLICE SERVICE COMMISSION (P.S.C)
  2. INSPECTOR GENERAL OF POLICE (IGP) ……………… DEFENDANTS

REPRESENTATION

VICTORIA ECHOBU for the Claimant

OBINNA YAGAZIE for the Defendants

JUDGEMENT

  1. The claimant filed this Further Amended Complaint and Further Amended Statement of Facts on 12th March2019 with the accompanying frontloaded documents, claiming against the defendants as follows:

  1. A DECLARATION that the processes and procedure culminating in the dismissal and subsequent commuting of the Nigeria Police Force violated his fundamental right to fair hearing and fair trial.

  1. A DECLARATION that the Claimant’s dismissal from the Nigeria Police Force as contained in the letter of dismissal dated, 14th June 2011 Ref: P36078/FSFHQ/ABJ/53 and the subsequent order commuting the said dismissal to compulsory retirement via letter dated 15th March 2016 is null and void.

  1. AN ORDER of this Honorable Court directing the Defendants to expunge all negative and report resulting from the baseless claims warranting and leading up to his unlawful dismissal which was subsequently commuted to compulsory retirement.

  1. AN ORDER of this Honorable Court mandating the Defendants render to the Claimant a letter of unreserved apology for his unlawful dismissal and subsequent commutal to compulsory retirement, and for the ill-4reatment he suffered leading up to his unlawful dismissal subsequently commuted to compulsory retirement, not being given fair hearing.

  1. AN ORDER for re-instatement of the-Claimant to the Nigeria Police Force with immediate effect.

  1. AN ORDER that the Claimant be promoted-simultaneously with his course mates at Police Academy Course 2/90 and JCC Course 48/2008, that is, to the rank of Chief Superintendent of Police with effect from 19th February, as enjoyed by his colleagues aforementioned.

  1. The sum of N15,196,977.00 (Fifteen Million One Hundred and Ninety-six Thousand, Nine Hundred and-Seventy-Seven .Naira calculated from the sum of N187,617.00 (One Hundred and Eighty-Seven Thousand, Six Hundred and Seventeen naira payable from month-to-month commencing on the l August, 2011 after the letter of dismissal dated 14th June, 2011 Ref No. P.36078/FS/FHQ/ABJ/53 to the period of his re-instatement based on the salary entitlements of the Claimant at the time of the unlawful dismissal and continuing at the same monthly calculations along and all other financial entitlements and increments due to the Claimants rank at the time of the unlawful dismissal and thereafter till date and continuing until judgment is liquidated.

PARTICULARS OF SALARY CLAIMS

  1. NO. 36078

SALARY PROFILE

JULY, 2011-BASIC SALARY DEDUCTIONS                               =N160, 017.00

COOPERATIVE VOLUNTARY CONTRIBUTION                       =N5, 00000

LODGING DEDUCTIONS                                                               =N22, 600.00

TOTAL MONTHLY SALARY PROFILE                                    =N187, 617.00

______________________________________________________________________

GRAND TOTAL as at 30th April 2018                                          =N15, 106 977.00

and continuing at the same monthly calculations till judgment is liquidated.

  1. The sum of N3, 500,000.O0 (Three Million, Five Hundred Thousand Naira) only being damages for the attendant sufferings suffered by the Claimant because of the negative consequences of the unlawful dismissal and subsequent order commuting same to compulsory retirement.

  1. The sum of N4, 500,000.00 (Four Million Five Hundred Thousand Naira) being the cost of litigation.
  2. 10% of the judgment sum due to the Claimant from the time of the judgment and accruing monthly until the judgment sum is liquidated.

 

  1. The Defendants/Applicants filed a NOTICE OF PRELIMINARY OBJECTION on 13th July, 2018 seeking An Order of this Honourable court dismissing this suit for want of jurisdiction.

GROUNDS FOR THE OBJECTION

  1. The Claimant’s action is statute barred.
  2. The action was not commenced within the statutory period.
  3. No Pre-action Notice was served on the Defendants as required by section 20 (1) to (4) of the Police Service Commission Establishment Act 2004.

WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION

 

ISSUE

Whether this Honourable court has the jurisdiction to entertain this suit.

 

  1. Learned Counsel for the Defendants submitted that in determining whether or not a court has the jurisdiction over a suit, the Honourable court is guided by the Claimant’s claim as evident from the writ of summons and the statement of facts/claim filed before it.ONUORAH v K.R.R.C LTD (2005) 6 NWLR PT. 921 PG 393 at 404 PARA E-F; 408 PARA A-C; SOCIETY BIC S.A v CHARZIN INDUSTRY LIMITED (2014) 4 NWLR (PT. 13980 497 AT 535 PARA B. The Defence Counsel contended that the said subject matter no doubt falls within the jurisdictional competence of the National industrial Court save for the fact that in the case before the Court, the action is barred by statute and cannot be legally prosecuted before any court of law, same not having brought within 3 months of the cause of action arising. And that in determining when a cause of action arose, the case of .G ADAMAWA STATE V A.G FED. (2014) 14 NWLR (pt. 1428) 515 at 565 paras B-C is instructive. ADEKOYA v. FEDERAL HOUSING AUTHORITY (2008) ALL FWLR (PT434) 1452 at 1464 PARAS B-C. He argued that the case of the Claimant is caught by the provisions of Section 2 of the Public Officers (Protection) Act. And that any person in the said section has been defined to mean both artificial and natural persons alike. Ibrahim v JSC (1998) 14 NWLR (pt. 584) P. 86-87, Para. H-A.

 

  1. It is also Defendant Counsel’s submission that the act gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority and are not acting outside their statutory or constitutional duty. And that it can be deduced from the Claimant’s statement of facts that the Defendants acted within the confines of their public authority. Hassan v Aliyu (2010) 17 NWLR (pt. 1223) 547 SC. Furthermore, that an action against them must be brought not later than 3 months of the accrual of the cause of action and that any action brought against a public officer after the stipulated limitation period is said to be statute-barred and the effect also is that the court does not have any jurisdiction to entertain such an action. Babatunde v Eluwa (2011) LPELR-8829 (CA).To the Defendant Counsel, that where a law prescribes a period for instituting an action, proceedings cannot be instituted after that period. Udoh v Sunday Abere 92001) & SCNJ 274; Ekeogu v Aliri (1994) 3 MLR (179) 258; Egbe v Alhaji (1990) 1 NWLR (pt. 128) 1 p. 546 at 600.

 

  1. Learned Counsel for the Defendants also submitted thus: By Section 6 (1) (b) of the Police Service Commission Establishment Act 2004, the Commission has power to dismiss and exercise disciplinary control over persons (other than the IGP) in the Nigeria Police Force. By Section 6 (2) the Commission shall not be subject to the direction, control or suspension of any other authority or person in the performance of its functions other than as is prescribed in the Act and that  Section 9 (1) (b) provides for the establishment in the Head Quarters of the Commission the Department of Investigation. It was pursuant to this that Claimant’s dismissal was varied. The Claimant is not entitled to any Declaratory Relief because he has not been able to establish that his contract of service was not lawfully determined and was or is therefore subsisting. CHUKWUMAH v SHELL PETROLEUM DEVELOPMENT COMPANY LTD. (1993) 4NWLR (PART 289) 512, 559.

  1. He argued that it amounts to poor pleading for the claimant to seek a declaration that his dismissal or subsequent compulsory retirement is void and at the same time claim damages for such.NZE v NIGERIA PORTS AUTHORITY (1997) 11 NWLR (PORT 528) 210.Furthermore, that the claimant has by laches, default or inequity weakened his claim to any relief whatsoever. And not only is his claim stale, its grant will be inequitable and/or will work hardship or inconvenience. CHIEF CONSTABLE OF THE NORTH WALES POLICE V EVANS (1982) WLR 1155.

 

  1. The Claimant filed a REPLY TO THE DEFENDANTS/APPLICANTS’NOTICE OF PRELIMINARY OBJECTION DATED 13TH JULY, 2018(filed on 26th July, 2018).

 

ISSUE

Whether the claimant’s claims against his wrongful dismissal and its subsequent commutal to compulsory retirement along with his claims for financial entitlements fall within the limitation of the Public Officers Protection Act and Section 20 of The Police Service Commission (Establishment) Act.

 

  1. Claimant’s Counsel submitted that it is no gainsaying that the Defendants/Applicants are public officers who enjoy the protection of the foregoing provisions of law.AKWA IBOM STATE UNIVERSITY v. IKPE (2016) 5 NWLR (Pt. 1504) 146 at p.164 para D, per Oyewole, JCA. It is Claimant’s counsel’s submission that there is a time and a season when a public officer will not enjoy the protection under Section 2 of the POPA, urging the Court to so hold. EZEANI v. NIGERIAN RAILWAY CORPORATION (2015) 3NWLR (Pt. 1445) 139 at p.158, paras F — G; LAGOS CITY COUNCIL v. OGUNBIYI (1969) SCNLR 94.Claimant Counsel noted that although Applicants’ Counsel cited the Supreme Court decision in EGBE v. ALHAJI to maintain that it is not right to read into the POPA an exception which is not expressed and which will have the effect of depriving the person intended to be protected of that protection, he referred the Court to the Supreme Court’s decision in AREMO II v. ADEKANYE (2004) ALL FWLR (PT. 224) 2113 at 2132, where the Supreme Court held that “the law of limitation of action recognizes some exceptions.” In the words of the learned justices, “where there is a continuance of damage, a fresh cause of action arises from time to time, as often as damage is caused… For instance, if the owner of a mines works them and causes damage to the surface more than six years before action and within six years of action a fresh subsidence causing damage occurs without any fresh working by the action an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action.”

 

  1. It is Counsel’s contention that there is continuing injury being suffered by the Claimant as his name is being unjustly continually rubbed in the mud as one disgraced out of office for contempt and fraud and that the Court will find the Claimant Counsel’s letters of appeal after the commutal of the dismissal to compulsory retirement instructive. EZEANI v. NIGERIAN RAILWAY CORPORATION (Supra).

 

  1. The Defendant’s filed their REPLY ON POINTS OF LAW filed on 2nd August 2018.

  1. Wherein Defendant’s Counsel noted that the Claimant/Respondent in paragraph 3(a) of his affidavit in opposition to our application stated that Claimant filed this suit in 2017 against the Defendants for unlawful dismissal in 2011 which was later commuted to compulsory retirement in April 2016; and that in order to determine whether the action is statute barred, the court will look at the date the action was filed. That this suit was filed 6th March, 2017, clearly out of the period stipulated by law. Also, that where an action is not filed within the period prescribed, the action will be statute barred and cannot be entertained by the courts. Elebanjo vs. Dawodu (2006) ALL FWLR (Pt. 328) 604.Defence Counsel argued that Section 20 of the Police Service (Commission Establishment) Act provides that no action shall be instituted against the Commission and its members in any court unless it is commenced within three or six months. Thus; that where an action is statute barred a claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. Odubeko v Fowler (1993) 7 NWLR (pt. 308) 637; Ekeogu V Aliri1991)3 NWLR (pt179) 258.TheDefendant Counsel noted that nowhere did the Claimant/Respondent proffer directly or indirectly any evidence of any applicable circumstance as stated in EZEANI v NIGERIAN RAILWAY CORPORATION.That there are no grounds whatsoever to make any exception to the clear provisions of the Public Officers Protection Act and that all the public officers involved in deliberating over the issue of the Claimants/Respondent’s acted within the scope of their authority. UNILORIN v ADENIRAN (2007) 6 NWLR (PT 1031) 498.

 

  1. It is Defence counsel’s contention that the Claimant/Respondent was not charged to Court for his misdeeds because the other allegations against him were administrative in nature, including but not limited to causing the recording of the statement of those who came to the station to inquire about the said Peugeot 404 pick-up, under caution and purporting to grant them bail, all these, on his own admission. ABIODUN v AGF (2007) 2007 15 (NWLR) pt. 998 277; LAGOS CITY COUNCIL v OGUNBIYI (1969) 1 ALL NLR 297AT 299, per Ademola, CJN. Submitting that motive is not relevant in interpreting the Public Officers (Protection) Act, as all that is necessary is to show that the public officer was acting within the scope of his authority. EGBE v YUSUFU (1992) 6 NWLR (PT 245) 1.He urged the Honourable Court to protect the Defendants/Applicants from the injustice of having to face a stale claim. AMEDE v UBA (20080 8 NWLR (PT 1080) 623 AT 655.Positing, that the failure of Claimant/Respondent to serve and file the pre-action Notice is an incurable defect to the claim which cannot be mitigated by what the Claimant/Respondent is purporting to be doing presently. Also, that the grievous omission to a monumental requirement of the law by the Claimant/Respondent who failed to serve and file a Pre-action Notion before resorting to litigation renders whatever was filed a nullity. Per Tobi, J.S.C. in Nigercare Dev. Co1 Ltd v A.SIIWIIB (2008) 9 NWLR (Pt. 1093) 498 at 526-527 paras H-B. To the Defendant Counsel the trite issue of a Memorandum of Appearance, is a mere technicality as the Defendants/Applicant’s Counsel has been fastidiously appearing in court on the matter. More so, that the Court has taken judicial notice of defendants’ Counsel’s Appearance in this matter. Okon Bassey Ebe v Commissioner of Police (2008) ISC Pt. (11) 222.Defence Counsel in concluding submitted that where an action is statute barred, the effect is an order of dismissal. LAMINA v IKEJA LOCAL GEOVERNMENT 91993) 8 NWLR (PT 314)758.

 

  1. Trial commenced on the 23rd March 2018 with the Claimant testifying as CW, he adopted his written statements on oath of 6th March 2017 and 30th January 2018 which were marked C1 and C2 respectively proceeded to tender forty-two (42) other exhibits, that were marked as Exhibits C3 and Exhibit C46 seriatim the Claimant’s list of documents, these exhibits were admitted under protest. After cross examination by the Defendant Counsel which took place on three separate dates 5th June 2018, 6th May 2019  and 18th July 2019, the Claimant closed his case. The Defendants had on 18th July 2018 filed a preliminary objection which after due consideration the Court informed parties that ruling on the Preliminary Objection would be delive4rd with this judgement. The Defendant’s did not file any statement of defence but had in open Court announced that they, the defendants, would be relying on the Claimant’s Trial ended on 18th July 2019  the matter was adjourned for the filing of final written addresses in line with Order 19 rule 23* to the 8th October 2019 . The Claimant’s filed his final written address on 23rd September 2019 and served same on the defendant on the 25th September 2019. On the second adjourned date slated for adoption of the final addresses 5th November 2019, neither party were present nor represented by Counsel in court. This Court evoked the provisions of Order 45 rule 12 and adopted the final written address of the Claimant, the only final written addressed fined in this matter up to the date of this judgement.

CLAIMANT’S FINAL WRITTEN ADDRESS filed on 23rd September, 2019.

ISSUES

  1. Whether the claimant’s dismissal was unlawful and its subsequent commutal to compulsory retirement sufficient remedy to the wrong and illegality done to the claimant by the defendants
  2. Whether in the light of the 1st issue, the claimant is entitled to the reliefs sought in his complaint.
  3. Whether the defendants have, in any way, impugned the claimant’s case as to controvert his evidence and disentitle him to the reliefs sought.

 

ON ISSUE 1

Whether the claimant’s dismissal was unlawful and its subsequent commutal to compulsory retirement sufficient remedy to the wrong and illegality done to the claimant by the defendants.

 

  1. It is counsel’s submission that the Claimant’s dismissal was wrongful and unlawful and its commutal to compulsory retirement, while also being unlawful, did not remedy the wrong. Counsel wished to place on record that the Claimant is a public officer and his employment with the Nigerian Police Force enjoys statutory flavour and can only be terminated in accordance with the law. NIMASA V. ODEY (2014) 2 WRN P.83 at 116.He argued that in the instant case, the 1st Defendant is empowered under Section 7 of the Police Service Commission (Establishment) Act No. 1 of 2001to be responsible for the appointment, promotion dismissal, and the exercise of disciplinary control over persons (except the 2nd Defendant) in the Nigeria Police Force; of which those persons include the Claimant. Defence Counsel posited that to determine whether a public officer’s dismissal/removal was lawful or not, this Court is required to enquire into whether the process of removing such an officer was done according to the provisions of the law. NIMASA V. ODEY (2014) 2 WRN P.83 @ 105. And that in the instant case, the Claimant was dismissed on the grounds that his written representations in Exhibit C27 to Exhibit C26 (the query) did not exculpate him from the issues raised in the query for acts of misconduct. Therefore, that the question that follows then is ‘’whether the process of removing the Claimant, though later commuted to compulsory retirement, was done in accordance with law?’’Furthermore, that by Section 318(1)(h) of the 1999 Constitution (as amended)the Claimant is a member of the public service, being an officer of the Nigeria Police Force, at the time and that the law that prescribes his dismissal is the Public Service Rules. In fact, that at the time of his dismissal, the Defendants purported to discipline the Claimant in pursuance of the Public Service Rules 2008 (PSR) gazette in Government Notice No. 278; TUONZUGHUL v. A-G., BENUE (2005) 5 NWLR (Pt. 918) 226, NEPA v. OSOSANYA (2004) 12 WRN 1, (2004) 1 S.C. (Pt.1) 159; MAIKYO v. ITODO (2007) 3 S.C. 34.

  1. It is counsel’s submission that the claimant’s dismissal runs afoul the provisions of the PSR cited above and is, therefore, unlawful, urging the Court to so hold. IDERIMA v. R.S.C.S.C (2005) 16 NWLR (Pt. 951) 378.She argued that the Defendants’ failure to investigate the allegations levelled against the Claimant and his reply, which is in itself rife with documents attached, some of which this Court admitted in evidence, amounted to a denial of the Claimant’s right to fair hearing, urging the Court to so hold. Section 36 (1), (2) & (3) of the 1999 Constitution (as amended); BAMGBOYE v. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290.The Claimant’s Counsel reiterated that had the Defendants conducted an unbiased investigation, especially in the light of existing Police records, they would have arrived at a different conclusion and not dismissed the Claimant. And that as it stands, the Claimant was arbitrarily removed from his office by the whims and caprices of those who wielded the power to do so to achieve their capricious aim. He urged the Court to undo this misdeed and turn the tides of injustice against the Claimant. OTAPO v. SUNMOUN (1987) 2 NWLR (PT. 58) 578 SC and IDERINMA v. R.S.C.S.C (2005) 16 NWLR (Pt. 951) 378 SC.

 

  1. Counsel to the Claimant also submitted that the law is trite that the remedy for an unlawful dismissal is reinstatement with payment of all outstanding emoluments and not compulsory retirement, unless the circumstances cited in the case of NEPA v. OSOSANYA (Supra) apply. She also submitted that “Reinstatement” has been defined to involve ‘putting the specified person back in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment”.GOV., KWARA STATE v. OJIBARA (2006) 18 NWLR (Pt. 1012) 645 S.C.; IDERINMA v. R.S.C.S.C (Supra). Submitting further, that where there is a wrong there is a remedy — ubi jus ibi remedium and that compelling the Claimant to retire did not remedy his unlawful dismissal. In fact, that it was in itself unlawful, given that the Claimant could have been reinstated. DAUDA v. STATE UNIVERSAL BASIC EDUCATION BOARD (SUBEB) unreported Suit NICN/BAU/02/2016 delivered by Hon. Justice R. H. Gwandu on September 20, 2016 and found on https:/judgment.nicn.adr.gov.ng accessed on Thursday 29 August, 2019.

ON ISSUE 2

Whether in the light of the 1st issue, the claimant is entitled to the reliefs sought in his complaint.

  1. Learned Counsel submitted that a public servant can only be validly removed from service if the procedure prescribed by law was followed. IDERIMA V. R.S.C.S.C. (Supra). He argued that in the instant case, the Claimant has led uncontroverted evidence to establish that not only was he removed by the Defendants without complying with the PSR, he was not given fair hearing and thus entitled to reliefs. ISIEVWORE v. NEPA (2002) 2 NWLR (Pt. 784) 417.Claimant’s Counsel submitted that the position of the law regarding remedies of specific performance is that whereas the Court will not grant specific performance of a contract of service, the Court will, in its discretion, grant specific performance where the contract of employment has a legal and statutory flavour thus putting it over and above the ordinary master and servant relationship. SHITTA-BAY v. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC 40 and OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599 SC.

 

  1. Counsel noted that with respect to the 3 relief above, my Lord will find that Rules 385 — 388 of the Nigeria Police Regulations (NPR) provide for the Defendants’ power to record, enforce and publish in the Force Orders any one or more punishment against any defaulting junior officer. In the same vein, that Rule 389 of the NPR empowers the 2nd Defendant to expunge any one or more punishment entries (including the bad name and negative report against the Claimant, as in the instant case) in the Record of Service of a junior officer such as the Claimant. Thus, that the Claimant’s dismissal and subsequent compulsory retirement, being an administrative decision made in violation of the Claimant’s right to fair hearing as well as the law regulating removal of a public servant, is subject to judicial review. Therefore, that this Honorable Court can compel the 2nd Defendant to expunge any one or more punishment entries and negative report against the Claimant having been made in violation of his right to fair hearing and the law regarding his removal.

  1. With respect to the 5th relief for the Claimant’s re-instatement to the Nigeria Police Force, counsel submitted that once the removal of a public servant is found to be contrary to law, it is  to be declared null and void; and the effect of such pronouncement is that the employee was always and is still a public servant. IDERIMA v. R.S.C.S.C. (Supra). That the remedy then would be reinstatement. GOV., KWARA STATE v. OJIBARA (Supra).Also, that the remedy of reinstatement is automatic unless there is a supervening event. ISIEVWORE v. NEPA (Supra).

 

  1. With respect to the 7th relief, counsel posited that a public servant who is unlawfully and/or wrongfully removed is entitled to payment of wages and salaries accruing and due for payment but unpaid for the period of the unlawful and/or wrongful removal. ABDALLAH v. ACHOU (1978) NCLR 226.

 

  1. Claimant Counsel submitted that since the 8th relief is a claim for general damages, the trite principle of ubijus ibi remedium is applicable in this respect as the Claimant has suffered many a wrong from his unlawful dismissal. MOBIL OIL (NIG.) LTD. v. AKINFOSILE (1969) NMLR 217; BABA v. NIGERIA CIVIL AVIATION TRAINING CENTRE (1986) 5 NWLR (Pt. 42) 514; JULIUS BERGER (NIG.) PLC. v. NWAGWU (2006) 12 NWLR (Pt. 995) 518.

 

ON ISSUE 3                                         

Whether the defendants have, in any way, impugned the claimant’s case as to controvert his evidence and disentitle him to the reliefs sought.

 

  1. Claimant’s Counsel contended that it is on record that the Defendants failed to produce any of the original copies of all documents pleaded and tendered before the Court though being in the Defendants’ possession, and despite the Claimant’s notice to produce pleaded in his Statement of Facts in accordance with Section 91 of the Evidence Act.She posited that by Section 167(d) of the Evidence Act 2011, that amounts to withholding evidence and serves against the Defendants.

Court’s Decision

 

  1. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is there Claimant is entitled to the reliefs sought.

  1. In the course of this trial the Defendants filed a Preliminary objection seeking An Order of this Honourable court dismissing this suit for want of jurisdiction.

GROUNDS FOR THE OBJECTION

  1. The Claimant’s action is statute barred.
  2. The action was not commenced within the statutory period.
  3. No Pre-action Notice was served on the Defendants as required by section 20 (1) to (4) of the Police Service Commission Establishment.

  1. The Defendants submitted that in determining the jurisdiction over a suit, the Honourable court is guided by the Claimant’s claim; -the writ of summons and the statement of facts/claim filed before it.  And although the subject matter of this t falls within the jurisdictional competence of the National industrial Court, this action is barred by statute having not being brought within 3 months of the cause of action arising. Submitting that this case is caught by the provisions of Section 2 of the Public Officers (Protection) Act. 2004.

  1. To the Defendant Counsel, that where a law prescribes a period for instituting an action, proceedings cannot be instituted after that period. Udoh v Sunday Abere 92001) & SCNJ 274; Ekeogu v Aliri (1994) 3 MLR (179) 258; Egbe v Alhaji (1990) 1 NWLR (pt. 128) 1 p. 546 at 600.

 

  1. Learned Counsel for the Defendants also submitted thus: By Section 6 (1) (b) of the Police Service Commission Establishment Act 2004, the Commission has power to dismiss and exercise disciplinary control over persons (other than the IGP) in the Nigeria Police Force. By Section 6 (2) the Commission shall not be subject to the direction, control or suspension of any other authority or person in the performance of its functions other than as is prescribed in the Act and that Section 9 (1) (b) provides for the establishment in the Head Quarters of the Commission the Department of Investigation. It was pursuant to this that Claimant’s dismissal was varied.

  1. The Defendants Counsel also submitted that the Claimant is not entitled to any Declaratory Relief because he has not been able to establish that his contract of service was not lawfully determined and was or is therefore subsisting. He further argued that it amounts to poor pleading for the claimant to seek a declaration that his dismissal or subsequent compulsory retirement is void and at the same time claim damages for such.

 

  1. To the defendant, the claimant has by laches, default or inequity weakened his claim to any relief whatsoever. And not only is his claim stale, its grant will be inequitable and/or will work hardship or inconvenience.

  1. The Claimant filed a reply to the defendants/applicants’ notice of preliminary objection raising one (1) issue

ISSUE

Whether the claimant’s claims against his wrongful dismissal and its subsequent commutal to compulsory retirement along with his claims for financial entitlements fall within the limitation of the Public Officers Protection Act and Section 20 of The Police Service Commission (Establishment) Act.

 

  1. Claimant’s Counsel submitted even though the Defendants/Applicants are public officers who enjoy the protection of the foregoing provisions of law. there is a time and a season when a public officer will not enjoy the protection.

  1. It is Counsel’s contention that there is continuing injury being suffered by the Claimant as his name is being unjustly continually rubbed in the mud as one disgraced out of office for contempt and fraud.

 

The Defendant’s filed their reply on points of law:

  1. Wherein Defendant’s Counsel noted that the Claimant/Respondent filed this suit in 2017 against the Defendants for unlawful dismissal in 2011 which had been commuted to compulsory retirement in April 2016; and that in order to determine whether the action is statute barred, the court will look at the date the action was filed. That this suit was filed 6th March, 2017, Contending, that this is clearly out of the period stipulated by law. Arguing that Section 20 of the Police Service (Commission Establishment) Act provides that no action shall be instituted against the Commission and its members in any court unless it is commenced within three or six months. Thus; that where an action is statute barred a claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed.

 

  1. The Defendant Counsel noted that nowhere did the Claimant/Respondent proffer directly or indirectly any evidence or grounds to make any exception to the clear provisions of the Public Officers Protection Act.

 

  1. It is Defendant Counsel posited, that the failure of Claimant /Respondent to serve and file the pre-action Notice is an incurable defect to the claim which cannot be mitigated by what the Claimant/Respondent is purporting to be doing presently. Also, that the grievous omission to a monumental requirement of the law by the Claimant/Respondent who failed to serve and file a Pre-action Notion before resorting to litigation renders whatever was filed a nullity. Arguing that a Memorandum of Appearance, is a mere technicality.

 

  1. Before I resolve the issue raised in this Preliminary objection I will address some misconceptions prevalent in the mode of presenting this Objection.

 

  1. Firstly while I agree with the Defendant, that it is wrong to seek an order for reinstatement and damages in an employment matter, as such is considered double compensation, it is also wrong to raise issues better suited for defence in a Preliminary objection.  The Preliminary Objection process is a process to address procedural or substantive issues which have the capability of putting an end to a trial and it is not a stage to raise issues best suited for defence; – such as the contention that the claimant had failed to prove that this contract of employment had not been lawfully determined, I find has nt place in a Preliminary objection.
  2. Secondly, with respect to the defendants reply on point of law; – To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to re-argue the defendants’ case – see the Supreme Court in Basinco Motors Ltd. v. Woermann-Line & Anor. [2009] LPELR – 756 [SC] pp. 41 – 42, paras. A – D:

Authorities abound on the purport and function of an appellant’s reply brief of argument, and where it does not fall within the requirement of the rule, then the reply brief becomes otiose. The purpose and purport of a reply brief is to address fresh points raised in a respondent’s brief of argument, and not to introduce fresh points. …The argument of the learned counsel of the appellant that non-consideration of the appellant’s reply brief of argument in the lower court amounted to a breach of the appellant’s right to fair hearing does not hold water. I will reproduce the provisions of section 36 [1] of the Constitution of the Federal republic of Nigeria 1999 at this juncture. It reads:-“36 [1] In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner to secure its independence and impartiality.” In instant case, I do not see that there was any breach of the appellant’s right of fair hearing, most especially when thoroughly reads the appellant’s brief of argument, which contains all relevant arguments that thoroughly and carefully covered the issues related to the grounds of appeal. The learned justice of the Court of Appeal gave the arguments in the appellant’s and respondent’s briefs of argument the attention that they deserved by considering them. The above constitutional provision does not impose upon a court the duty to deal with the same arguments over and over, and allow unnecessary repetitions to weigh it down. In other words, the doctrine of fair hearing does not extend to over stretching the court with unnecessary arguments that are not allowed by law.

 

  1. What I can see in the so-called reply on points of law is an attempt to supply new arguments in support of the earlier arguments canvassed in the defendants’ final written address and not a reply on any point of law newly raised in the claimant’s written address. I accordingly discountenance the so-called reply on points of law for being otiose.

  1. Now to the subject matter of the Preliminary objection; –

  1. The defendants have raised the provisions of Section 2 of the Public Officers (Protection) Act. 2004 and Section 20 of the Police Service Commission (Establishment) Act.# to contend that this suit is statute barred.

  1. Section 2 of the Public Officers (Protection) Act. 2004which provides as follows –

            Where any action, prosecution, or other proceeding is commenced against any person       for any act done in pursuance or execution or intended execution of any Act or Law or           of any public duty or authority, or in respect of any alleged neglect or default in the         execution of any such Act, Law, duty or authority, the following provisions shall have effect.

            (a)        the action, prosecution, or proceeding shall not lie or be instituted unless it is                     commenced within three months next after the act, neglect or default                                  complained of, or in case of a continuance of damage or injury, within three                      months next after the ceasing thereof:

            Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three         months after the discharge of such person from prison.

  1. Section 20 of the Police Service Commission (Establishment) Act provides that no action shall be instituted against the Commission and its members in any court unless it is commenced within three or six months.

  1. Now the word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in
  2. a)the public service of a state or federal government…
  3. b)the service of a body whether corporate or unincorporated established under a Federal or State Law.

  1. While, Section 318(1) of the CFRN 1999 defines “Public service of the Federation to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly.” And bearing in mind that  the Public Officers’ Protection Act applies to both natural and artificial persons. See also. KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243; ABUBAKAR v. GOVERNOR OF GOMBE STATE (2002) 17 NWLR (PT. 797) 533; NWAOGWUGWU v. PRESIDENT, FRN (2007) 1 ALL FWLR (PT. 389) 1327.

  1. I would ordinarily agree that the defendants are entitled to the protection afforded by the Public Officers Protection Law.

 

  1. But the portion of the defendant is no longer the position of the law and cannot hold. In light light of the recent Supreme Court pronouncement in NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION & 2 ORS V. AJIBOLA JOHNSON & 10 ORS [2019] 2 NWLR (PT. 1656) 247, where His Lordship Ariwoola, JSC at 271 sounded the death knell on the applicability of the Public Officers Protection law to contracts of service. In his words:

I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred.

  1. This, I find means that in respect of contracts of service limitation laws have no application even though the Apex Court did not specially consider Section 20 Police Service Commission Act. The Supreme Court refers explicably to limitation laws and I find that section 20 of the Police Service Commission Act is in fact a limitation Act. Hence by this pronouncement this flank of the Defendant’s objection cannot succeed and thus must fail
  2. The defendants had argued that the claimant did not serve pre action notice but this contention, has been proved to both the Court and the defendants.

  1. All in all I find there is no merit to the defendant’s NPO and it is here dismissed.

Now to the substantive suit.

  1. Before I address the merits of this case, it is necessary to clarify some salient points, considering, as stated earlier that the Defendants did not file a Statement of Defence in this action or call any evidence, having informed the Court that the Defendant would be relying on the Claimant’s case. Technically, therefore, this case approximates to one that is undefended but it must be pointed out that the Defendant had ample the opportunity to defend this action but chose not to, in this regard I am aware of the legal position that the averments in the statement of fact, the proof of evidence in the nature of his oral testimony and documents frontloaded and admitted in this case must be taken as uncontroverted. See the (unreported) case of NICN/LA/25/2011 MR. THOMAS OLUKAYOKE & ORS Vs. TIMBUKTU MEDIA LTD. delivered 6th March 2013. As the effect of the failure of a party to call evidence in defence of a claim is that he is presumed to have admitted the case made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case place before it by the claimant.  See IFETA Vs. SHELL PETROLLEUM DEVELOPMET CORPORATION OF NIGERIA [2006] Vol. 6 MJSC, CONSOLIDATED RES LTD. Vs. ABOFAR VENTURES NIG. [2007] 6NWLR (Pt. 1030) 221 and OKOLIE Vs. MARINHO [2006] 15 NWLR (Pt. 1002) 316.

But this, however, does not mean an automatic victory for the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the Defendants case or on the fact that there is no Defence placed before the court. BENJAMIN BILLE Vs. MULTILINKS LTD. NICN/LA/175/2011 (unreported) delivered 6th July 2012. The absence of evidence by the defence does not exonerate the Claimant the burden or proof placed on him. See SECTION 131(1) and (2) Evidence act 2011, OGUNYADE Vs. OSHUNKEYE [2007] 15 NWLR (Pt. 1057). The Claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU Vs. OMOKARO [2003]8NWLR (Pt.821) 190. Uncontroverted evidence does not in any way take way the duty imposed on the Claimant to prove his case in accordance with the minimum evidence rule. In (unreported) NICN/LA/275/2012A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS delivered 19th December 2012 this court held as follows; –

“Order 15 of the National Industrial Court Rules 2017 (using the present Rules) enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 15 therefore recognizes the right of a Defendant not to defend an action filed against him or her. And by order 38 rule 2 where the Defendant is absent at the trial and no good reason is shown for the absence, the Claimant may prove his/ her case as far as the burden of proof lies on him upon her. These Rules, of course accord with the minimal evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA at 69and OGUNYADE Vs. OSUNKEYE supra at 247”

 

  1. Mindful of this position of law, I shall now proceed to deal with merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the evidence before the court against the reliefs sought by the Claimant

The rule of thumb in evaluating the Claimants evidence is as follows; – “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claims that the court should on balance decide in his favour” Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) LPELR-2153(SC) (P. 9, paras. A-B).

The Defendant raised question as to the admissibility and regularity of the claimants exhibits /evidence which I shall address while resolving, what this court considers as the issue for determination; – whether the Claimant is entitled to the reliefs sought in this suit.

The Claimant’s reliefs are as follows; –

  1. A Declaration that the processes and procedure culminating in the dismissal and subsequent commuting of the Nigeria Police Force violated his fundamental right to fair hearing and fair trial.
  2. A Declaration that the Claimant’s dismissal from the Nigeria Police Force as contained in the letter of dismissal dated, 14th June 2011 Ref: P36078/FSFHQ/ABJ/53 and the subsequent order commuting the said dismissal to compulsory retirement via letter dated 15th March 2016 is null and void.
  3. An Order of this Honorable Court directing the Defendants to expunge all negative and report resulting from the baseless claims warranting and leading up to his unlawful dismissal which was subsequently commuted to compulsory retirement.
  4. An Order of this Honorable Court mandating the Defendants render to the Claimant a letter of unreserved apology for his unlawful dismissal and subsequent commutal to compulsory retirement, and for the ill-4reatment he suffered leading up to his unlawful dismissal subsequently commuted to compulsory retirement, not being given fair hearing.
  5. An Order for re-instatement of the-Claimant to the Nigeria Police Force with immediate effect.
  6. An order that the Claimant be promoted-simultaneously with his course mates at Police Academy Course 2/90 and JCC Course 48/2008, that is, to the rank of Chief Superintendent of Police with effect from 19th February, as enjoyed by his colleagues aforementioned.
  7. The sum of N15,196,977.00 (Fifteen Million One Hundred and Ninety-six Thousand, Nine Hundred and-Seventy-Seven .Naira calculated from the sum of N187,617.00 (One Hundred and Eighty-Seven Thousand, Six Hundred and Seventeen naira payable from month-to-month commencing on the l August, 2011 after the letter of dismissal dated 14th June, 2011 Ref No. P.36078/FS/FHQ/ABJ/53 to the period of his re-instatement based on the salary entitlements of the Claimant at the time of the unlawful dismissal and continuing at the same monthly calculations along and all other financial entitlements and increments due to the Claimants rank at the time of the unlawful dismissal and thereafter till date and continuing until judgment is liquidated.

PARTICULARS OF SALARY CLAIMS

  1. NO. 36078

SALARY PROFILE

JULY, 2011-BASIC SALARY DEDUCTIONS                               =N160, 017.00

COOPERATIVE VOLUNTARY CONTRIBUTION                       =N5, 00000

LODGING DEDUCTIONS                                                               =N22, 600.00

TOTAL MONTHLY SALARY PROFILE                                    =N187, 617.00

______________________________________________________________________

GRAND TOTAL as at 30th April 2018                                          =N15, 106 977.00

and continuing at the same monthly calculations till judgment is liquidated.

  1. h.   The sum of N3, 500,000.O0 (Three Million, Five Hundred Thousand Naira) only being damages for the attendant sufferings suffered by the Claimant because of the negative consequences of the unlawful dismissal and subsequent order commuting same to compulsory retirement.
  2. The sum of N4, 500,000.00 (Four Million Five Hundred Thousand Naira) being the cost of litigation.
  3. 10% of the judgment sum due to the Claimant from the time of the judgment and accruing monthly until the judgment sum is liquidated.
  4. In Reliefs (a) and (b) the Claimants are seeking a legal pronouncement on the action of the defendants dismissing him and the subsequent commuting his dismissal to Compulsory retirement. In Relief (c) and (d) the claimant want the defendant to expunge all negative reports and baseless claims that led to his unlawful dismissal from the records together with an unreserved apology by order of Court for his disengagement done without fair hearing. In Relief(e) the claimant is asking to be reinstated and in Relief (f) he seeks simultaneous promotion with his course mates. In Relief (f) the claimant is asking for The sum of N15,196,977.00 (Fifteen Million One Hundred and Ninety-six Thousand, Nine Hundred and-Seventy-Seven .Naira being his monthly salary at N187,617.00 (One Hundred and Eighty-Seven Thousand, Six Hundred and Seventeen naira payable from August, 2011  till 20th April 2018, plus all other financial entitlements and increments due to the Claimants rank at the time of the unlawful dismissal and thereafter till date and continuing until judgment is liquidated. In relief (h)the claimant is asking for N3, 500,000.O0 (Three Million, Five Hundred Thousand Naira)as damages for the attendant sufferings suffered flowing from the negative consequences of his unlawful dismissal and order of commutating same to compulsory retirement. Relief (o) is for the sum of N4, 500,000.00 (Four Million Five Hundred Thousand Naira) being the cost of litigation. While Relief (j)is for 10% post judgment costs.

  1. In support of the claimant case the claimant filed 43 exhibits listed below; –

Exhibit C3.      Claimant’s Attestation Form for enlistment into the Nigeria Police Force in                       1986.

Exhibit C4.      Claimant’s Letter of Appointment to the Nigeria Police Force dated 21st                            March, 1990

Exhibit C5.      Claimant’s Letter of Promotion dated 30th July 2008 with Reference no:                            PSC/POL/A/   1631 /VOL.III /602

Exhibit C6.      Claimant’s Letter of Dismissal dated 14th June 2011 with Reference No.                           P.36078/FS/FHQ/ABJ/53 along with Claimant’s Affidavit dated 20th                                March, 2017 and Certified copy of Extract of Police Diary of Loss of                                 Documents

Exhibit C7.      Police Wireless Message DTO: 191200/02/2008 with Signal No.                                        AB.3592/BNS/X/VOL.14/232 along with Affidavit of the Claimant dated 19th                  May, 2017

Exhibit C8.      Police Wireless Message DTO: 031130/03/2008 with Signal No.:                                      AB.3592/BNS/X/VOL.2/658

Exhibit C9.      Police Wireless Message DTO: 050900/03/2008 with Signal No.:                                       AB.3592/BNS/X/VOL.4/235

Exhibit C10.    Police Wireless Message DTO: 180830/02/2008 with Signal No.:                                       AK.1000/BNS/GU/YL/VOL.1/3 along with extract of Police Diary

Exhibit C11.    Police Wireless Message DTO: 121200/03/2008 with Signal No.:                                       AB.3592/BNS/GU/VOL.1/59

Exhibit C12.    Photographs of the Found and Unclaimed Peugeot 404 Pick-up Truck with                        Reg. No. XA 127 NEG.

Exhibit C 13.   Certified True Copy of The Vanguard dated May 12, 2008 Vol. 24: No.                            650583

Exhibit C 14.   Certified copy of Letter of the Assistant Commissioner of Police D’                                   Department CID(ACCID), Makurdi for “Disposal of Found and Unclaimed                       Property” dated 28th   May, 2008 with Reference No:                                                          AB.3593/BNS/X/VOL.5/240 along with the list attached therewith.

Exhibit C 15.   Certified Copy of Letter of Approval for Disposal of Found and Unclaimed                       Property dated 3rd June 2008 with reference No. CMCI/POL/VOL.II

Exhibit C 16.   Certified Copy of Letter of Disposal of Found and Unclaimed Property dated                   3”June 2008 with reference No.: AB.3592/BNS /SHQ/VOL.T/70

Exhibit C 17.   Certified Copy of the Statements of Timothy Ikyapa made at Gbajimba Police                   Station of Benue State dated 4th July 2008 along with the Bail bond

Exhibit C 18.   Certified Copy of the Statement of Godfrey Agia made at Gbajimba Police                        Station of Benue State dated 4th July 2008 along with the Bail bond.

Exhibit C 19.   Claimant’s Letter of Posting/Transfer SPO dated 21 July 2008

Exhibit C 20.   Original Police Staff College Certificate dated 5/12/2008.

Exhibit C 21.   Copy of Police Wireless Message DTO: 130926/08/2008, Signal No.:                                AB.36078/SCJ/AW/JCC/48/2008 along with Claimant’s Affidavit dated 19t                      May, 2017.

Exhibit C 22.   Certified copy of Claimant’s Police Statement dated 17th September 2008

Exhibit C 23.   Acknowledgement copy of Claimant’s Letter of Appeal for Unbiased                                 Investigation: Cry for justice dated 28th May, 2009

Exhibit C 24.   Letter of Re: Appeal for Unbiased Investigation: Cry for Justice dated 2nd                                     June, 2009

Exhibit C25.    Police Wireless Message DTO: 091600/06/2009 with Reference No.:                                             CB:7000/IGP/MSIU/1]HQ/ABJ/VOL. 1/229

Exhibit C26.    Police Wireless Message DTO: 153000/08/2009 with Reference No.:                                             CB:7000/IGP.SEC/MSIU/FHQ/ABJ/VOL. 1/260

Exhibit C27.    Query to Claimant dated 7th October, 2009 along with Affidavit of Loss of                       Original Document along with copy of Extract of Police Diary

Exhibit C28.    Copy of Claimant’s Written Reaction dated 3rd November, 2009 in response                    to his Query along with Affidavit of Loss of Original Document along with                       copy of Extract of Police Diary

Exhibit C29.    Acknowledgement copy of Claimant’s letter of Appeal against Dismissal                          dated 2d August 2011

Exhibit C30.    Letter of Chief D.O. Bello & Co. dated 12/09/2012 to the 1st Defendant dated                   10th June 2015

Exhibit C31.    Letter of Chief D.O. Bello & Co. dated 12/09/2012 to the 2nd Defendant dated                 10th June 2015

Exhibit C32.    Acknowledgement copy of Claimant’s Letter: Reminder Notice Re: Appeal                      Against Dismissal, SP SimeoneAjisafe

Exhibit C33.    Acknowledgment copy of Claimant’s Letter dated 27t January, 2013

Exhibit C34.    Acknowledgement copy of Letter of Legal Aid Council on behalf of the                             Claimant dated 13th June, 2013

Exhibit C35.    Acknowledgement copy of Claimant’s letter of “Reminder: Re: Appeal against                             Dismissal SP SimeoneAjisafe” dated 7th March, 2014

Exhibit C36.    Certified True Copy of 2nd Defendant’s Letter Re: Request for Intervention                      and Reinstatement: Appeal Against Dismissal SP SimeoneAjisafe dated 15th                    June 2014 along with Claimant’s letter dated 10th June 2015

Exhibit C37.    Acknowledgement copy of Claimant’s Letter “7th Letter of Reminder Appeal                   for Reinstatement Re: Appeal against Dismissal” dated 26th September, 2014

Exhibit C38.    2nd Defendant’s Letter commuting Claimant’s dismissal to retirement dated                      15th March, 2016

Exhibit C39.    1st Defendant’s Letter commuting Claimant’s dismissal to retirement dated                       11th April, 2016

Exhibit C 40.   Acknowledgement copy of letter of Abiola Ashaolu& Co to 1st Defendant                       dated 12th May, 2016

Exhibit C41.    Acknowledgement copy of letter of Abiola Ashaolu& Co to 2nd Defendant                       dated 12th May, 2016

Exhibit C42a. Certificate of Award of Honour to the Claimant by Kwande Youth Coalition                     dated 1 7th December,2005.

Exhibit C42b. Certificate of Meritorious Award to the Claimant by Committee of Concerned                   Adikpo Associates for Claimant’s security power in Kwande dated 28/12/05.

Exhibit C42c. Certificate of the Best Award to the Claimant as the best D.P.O on the                                occasion of “Miss Adikpo” 2004/2005.

Exhibit C43.    Claimant’s Account Statement by NPF Microfinance Bank Plc reporting date                   from 01/01/2011 to 26/03/2018

Exhibit C44.    Claimant’s Correspondence to his former Counsel regarding fees dated 15th                     day of January, 2018

Exhibit C45.    Claimant’s Letter of Instruction to Messrs Crescent Legal Associates                                  dated18th December, 2017.

  1. From these documents, I can determine that the claimant was a statutory employee of the defendant, and that his employment is to be governed by the Police Act and the Public Service Rules. And being the statutory employee the law is that he can only be removed from office following the strict compliance with the relevant statutes and laid down procedure. See UNITED GEOPHYSICAL NIGERIA LTD & ORS v. OSIOBE & ORS. (2014) LPELR-24528(CA) where it was held that “In employment governed by Statute, the Statute governs the terms of employment .and dismissal. Any dismissal outside the provisions of the Statute is unlawful dismissal. Any other employment outside the Statute is governed by the terms under which the parties agreed to be master and servant. In other cases governed by agreement of the parties, where the dismissal is done in the form not agreed to, the dismissal is merely wrongful. In the case of unlawful dismissal, the Court after such finding will declare the dismissal null and void and of no effect. This returns the party to their positions ante bellum. In the case of wrongful dismissal, the only remedy is a claim in damages for that wrongful dismissal. See IDONIYE OBU V. NNPC (2003) 1 SCNJ 87 AT 105. This is because a servant cannot be imposed by the Court on an unwilling master even where the master’s behavior is wrong.”
  2. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A (P. 7, paras. A-E).

 

  1. See also NIMASA v. ODEY (2013) LPELR-21402(CA)Where it was held that “The Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. What this means is that a public servant cannot be removed without strictly complying with CSR Okocha vs. CSC Edo State (2004) 3 NWLR Pt.861 page 494.
  2. It is part of the case of the claimant that the defendants did not comply with the law governing the procedure for the dismissal of a junior officer as prescribed by the Police Regulations. Consequently, she then urged the Court to hold that her purported dismissal was mala fide and without just cause and in utter disregard to the terms and conditions of service of the defendants. Throughout this case (except for the casual references to section 2 of the interpretation section of the Police Act, and sections 105 and 370 – 389 of the Police Regulations as supporting the contention that the claimant is a statutory employee) there is no evidence as to what these terms and conditions of employment are and what procedures for dismissal were breached by the defendants to warrant a verdict for the claimant.  By the Court of Appeal decision in Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291, a plaintiff who alleges wrongful dismissal must prove it. The Court of Appeal had earlier in Okoebor v. Police Council & Ors. [1998] 9 NWLR (Pt. 566) 534 and later in Adams v. LSDPC (supra) held that a plaintiff who seeks a declaration that the termination of his contract of employment is a nullity must plead and prove the following –

  1. That he is an employee of the defendant;
  2. How he was appointed and the terms and conditions of his appointment;
  3. Who can appoint and remove him;
  4. The circumstances under which the plaintiff’s appointment can be terminated; and
  5. That his appointment can only be determined by a person or authority other than the defendant.

  1. In the instant case the documents before the court and the claimant testimony establish the above  which leads to the question of whether the claimant is entitled to the reliefs he claims.
  2. Like I pointed out earlier, the defendant did not file any but duly cross examined the Claimant. The claimants case, I find, is quite within the contemplation of Okeobor v. Police Council; and as the claimant must prove his case in order to succeed. The claimant’s argument that the defendants did not enter any defence or call in evidence and so his case must be deemed admitted cannot accordingly stand as such.

  1. The facts of the case as can be gleaned from the documents frontloaded by the parties, Exhibits A and B filed by the claimant and Exhibits NPF1 – NPF9 filed by the 1st defendant, are that in 2003 vide Exhibit NPF1 dated 4th November 2003, the claimant was queried.

  1. See Exhibit C27 reproduced below

QUERY FOR SERIOUS MISCONDUCT

  1.          It has n brought to the notice of the Inspector-General of Police of the petition written       on the 15/2/05 by one Tse Agia ‘m’ of Ayua village during the crises between the      Nassarawa and Benue State in 2001, the petitioner, Tse Agiasought the assistance of          some youth to push one Peugeot 404 pick-up van with registration no XA 127 NEG to         Yelwata Police Station in Benue State for safety; for fear of it being burnt or   vandalized. Furthermore, on the 27/6/2008 you brought some armed policemen from Gbajimba Division headquarters where you contemptuously and fraudulently     converted the vehicle to your own use through a fictitious claim that it has been             auctioned to you and when the real owner of the vehicle came to challenge why the             vehicle was brought to your Division by you, you detained him and threatened him           from pursing the claim of his vehicle when the case was being investigated by the          state CID Markudi, a signal NO.200/ZN4/X/VOL1/19 DATED 29/ 7/2008  was sent     to you with the given allegation levelled against you for selling the vehicle to            yourself, but you ignored the allegation and failed to honour such invitation extended    to you to avoid being interrogated and also to avoid coming face to face with owners     of the vehicle, you sent an already prepared statement to the IPO of  the case through            one Supol Toki.
  2.          The Inspector-General of Police is miffed and embarrassed by your behaviour and has                  expressed his utter disappointment with your conduct and directed that you be queried                  and you are hereby queried for the following acts of serious misconduct:

            (i)         DISCREDITABLE CONDUCT: in that you fraudulently converted a Peugeot 404 van     kept for safe keeping at one of your outpost for your own use, contrary to rule   030402(k) of Public Service

                        Rules, 2008.

            (ii)        DISOBEDIENCE TO LAWFUL ORDER: in that you failed to honour Deputy             Commissioner of police ‘A’ Department wireless message No CB 200/ZN4/X/VOL/19 dated 29/7/2008, calling you for interview contrary to rule            030201 (N) of public service rules, 2008.

            (ii)        DISCOURTEOUS BEHAVIOUR TO MEMBER OF THE PUBLIC: in that when the      real owner of above named vehicle came to your station to challenged why the vehicle             was brought to your Division, you unlawfully detained him for no just cause contrary    to rule 030301 (p) of the public service rules, 2008.

            (iv)       CONDUCT UNBECOMING OF A PUBLIC OFFICER: In  the sum total of your action as highlighted above is prejudicial to discipline and proper administration of the Force which is unbecoming of a Senior police officer of your rank contrary h rules            030’102(w) DI the Public Service Rules, 2008.

  1.          You are therefore required to explain within 48hrs of the receipt of this query why             disciplinary action should not be taken against you. Your explanation, if any, should         be submitted through the appropriate Channel within the stipulated period or it would            be taken to mean that you have none to offer and the IGP will be at liberty to take any             action he deems appropriate in circumstance.

(AIG SULEIMN D. FAKAI NPM,mni)

ASSISTANT lNSPECTOR-GENERAL OF POLICE

FORCE SECRETARY

FOR: INSPECTOR-GENERAL OF POLICE

  1. To which the claimant responded in Exhibit C28.

  1. The claimant had always maintained that he did not auction and convert the said vehicle and present evidence to the defendants that the vehicle was validly auctioned and named the auctioneer.

  1. On the 20th October 2009 the Special Investigation Unit of the Force Headquarters, that was Inspector General of Police Mike Okiro, commenced investigation and he appeared before them and made a voluntary statement.
  2. It is the case of the claimant that when he also appeared before the Force Disciplinary Board on the 26th May 2010 answered all their questions, presented evidence that the auction of the vehicle was approved.  See Exhibits C14 and 15 and further presenting evidence that the said auction was duly advertised.13.The Claimant also testified that he was asked to leave the boardroom and that he would be communicated of the development.

  1. It was also the claimant’s testimony that the matter was being investigated by a Special Investigation Unit (SIU) set up by the Inspector General of Police. A fact he brought to the attention of the Board.

  1. Subsequently the then Inspector General of Police retired and the investigation of the SIU was truncated. The next thing he knew he was served with a letter of Dismissal.

  1. The claimant maintains that at no time was the result of the investigation brought to his attention.

  1. The proper procedure for disciplining a police officer such as the Claimant who is by virtue of his office a public servant has been expounded by the Court of Appeal in YEMISI v. FIRS (2012) LPELR-7964(CA), where the court of Appeal looked into the provisions of Rule 04406 and held that “A careful examination of the relevant Public Service Rules reproduced above shows that the procedure for any disciplinary action against an officer, which is likely to lead to his dismissal, is in two stages. The first stage is the issuance of the query by the offending officer’s superior and a report by that superior officer to another officer superior to him. The second stage is that where the concerned officer’s reply to the query is not satisfactory and it is considered that the conduct complained of is such that could lead to dismissal, the procedure set out in Rule 04306 must be followed. Because of the serious nature of the penalty for the alleged misconduct, the Rules set out a detailed procedure that must be followed”.

  1.          The Court of Appeal continued that “Because of the serious nature of the                           penalty for the alleged misconduct, the Rules set out a detailed procedure that                    must be followed. It fully accords with the principle of fair hearing. Once the                 Junior Staff Disciplinary Committee came to the conclusion that the                               appellant’s conduct warranted dismissal or termination, Rule 04306 (vi)                                     became applicable.” Per KEKERE-EKUN, J.C.A (P. 25, paras. A-E)

  1. The Court of Appeal went on “….c) On receiving the report the Permanent Secretary/Head of Extra-Ministerial Office 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.

Rule 04306 provides inter alia:

  1. Rule 04306: Unless the method of dismissal is otherwise provided for in these Rules an officer in the Federal Public Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule:

(i) The officer shall be notified in writing of the grounds on which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the 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 and he should be asked to state in his defence that he has been given access to such documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he relies to exculpate himself;

(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 dismissal shall be brought before the board and he shall be required to appear before it to defend himself and shall be entitled to call witnesses, His 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 has previously been supplied with a copy thereof or given access thereto.


(ix) The board having inquired into the matter shall make a report to the Commission. …

(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.”

Having determined that the Claimant’s appointment had statutory flavour it follows that his dismissal must be in accordance with the laid down procedure. SEE E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION [2005] 7 SC (PT. III) 135 employment with statutory backing must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect. OKOCHA V. CSC, EDO STATE [2004] 3 NWLR (PT. 861) 582.  This finding means there was no dismissal at all since and everything the employer did is a nullity before the law and is hereby set aside. SeeBCC PLC V. AGER [2010] 9 NWLR (PT. 1199) 292.

                        The manner and conduct of the disciplinary action taken by the defendants I find is                       not in line with the laid down procedure which is the prerogative of the Claimant as a                   public servant and as such I find the claimant was not properly dismissed in                                   accordance with the statutory provisions and the law.

  1. Having not properly dismissed him by case law means there is nothing on which the defendants can base their action in commuting the dismissal to compulsory retirement. The Claimant’s dismissal was illegal, unlawful and null and void. I find that the defendant having acted without recourse to the law, in fact, it is as if the defendants had not acted at all and all the action amounts to a nullity. The law is that any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See DR. TAIWO OLORUNTOBA-OJU & ORS. V. PROF. SHUAIB O. ABDUL-RAHEEM & ORS. (2009) 13 NWLR PT.1157 PG.83; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NW LR PT.622 PG.290. BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. V. ESEALUKALPELR-20159(CA)

 

  1. I find that the Claimant was never dismissed, remains in service and is still in the service of the Defendants.  I resolve the substantive issue in this suit against the Defendants.

  1. The claimant’s case succeeds but only this far’-
  2. a)Reliefs (a) and (b) succeed.
  3. b)Relief (c) and (d) fails as these reliefs are within the realm of defamation and more succuntly the Claimant did not substantiate relief (c) with regard to what and whereof  the negative claims.
  4. c)Relief(e) succeeds.
  5. d)Relief (f) fails. This court has held severally that Promotion is neither automatic nor a right; it is a privilege. See ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] 14 NWLR (PT. 1000) 610. Accordingly, it will be incidious for the Court to foist on an employer a person who should occupy a particular position. See SHELL PET. DEV. CO. V. NWAKA [2001] 10 NWLR (PT. 720) 64.
  6. e)Relief (g) cannot be granted as the Claimant did not present any reliable evidence in support of the sum claimed as his salary, the Particulars of salary is not evidence for this court, being neither the pay slip, bank teller or receipt as evidence of salary. I find that at the figures in Exhibit C43 are at variance with the amounts being claimed.
  7. f)Relief (h) I find cannot be granted as the claimant has not substantiated by evidence of the negative effect of the defendant’s action neither did he inform this court as to how he arrived at the sum sought in this relief. Furthermore having upheld his reinstatement damages would be double compensation.
  8. g)Relief (i)cannot be granted as it is against public policy see the case of When GUINNESS NIGERIA PLC  EMMANUEL NWOKE [2000] LPELR-6845(CA) held that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party, Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)”. Exhibit C43 falls short of indicating the amount of fees against each of the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees appears speculative. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. Relief (i) accordingly fails and so is dismissed.
  9. h)Relief (j) for 10% post judgment interest also fails as all monetary reliefs upon which this would have inured have failed.
  10. For avoidance of doubt, this the judgment of this Court; –
  11. It is hereby declared that the processes and procedure culminating in the dismissal and subsequent commuting of the Nigeria Police Force is illelgal, unlawful and null and void.
  12. It is hereby declared that the Claimant’s dismissal from the Nigeria Police Force as contained in the letter of dismissal dated, 14th June 2011 Ref: P36078/FSFHQ/ABJ/53 and the subsequent order commuting the said dismissal to compulsory retirement via letter dated 15th March 2016 null and void and hereby set aside.
  13.  It is hereby ordered that the claimant be reinstated without loss of status, years of service, seniority, arrears of outstanding salaries, benefits and
  14. Cost of this suit is put at N200, 000.00 (Two Hundred Thousand Naira only.
  15. Judgment is entered accordingly.

…………………………………….

HON. JUSTICE E. N. AGBAKOBA

PRESIDING JUDGE, ABUJA DIVISON

 

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