MRS AKINTOLA JUSTINAH MOJISOLA -VS- ADO LOCAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE: 7^THJUNE, 2019

SUIT NO: NICN/AK/25/2015

BETWEEN

MRS AKINTOLA JUSTINAH MOJISOLA CLAIMANT

AND

ADO LOCAL GOVERNMENT, ADO EKITI DEFENDANT

REPRESENTATION:

Dayo Akindejoye Esq. for the Claimant

Chief Olubunmi Olugbade for the Defendants

JUDGMENT

By a General form of Complaint filed on the 24^th July 2015 which was later amended on the 24^thFebruary 2017, the Claimant claims against the defendant the following reliefs:

A Declaration that the termination of the Claimant’s appointment from the Ado Local Government Service of Ekiti State by Defendant is unconstitutional, wrongful, unlawful, ineffectual, null and void.

An Order setting aside the defendant’s letter of termination of appointment given to the claimant dated the 27^th day of April, 2015 and which was received by the claimant on the 27^th day of April, 2015.

An Order directing the defendant to re-instate the claimant into the position she would have been in the Ado Local Government service but for the purported termination, compute and pay the claimant all her salaries and entitlement from the date of this termination, till the date of judgment herein. Therefore, amount due as at the month of April, 2013 to the month of April, 2015 is Five Hundred Thousand Naira only(N500,000)and also place the claimant in the position she would have been in the Ado Local Government service. That is GL 5/9 effect from 1^st January, 2014 and also to pay the sum of N50 million as damages for the injury suffered by the claimant.
An Order directing Defendant to with immediate effect release all the salaries of the Claimant which was illegally diverted and not paid to her from April, 2013 to April, 2015.

It is the case of the Claimant which is in tandem with her pleadings that he was employed by the Ado-Ekiti Local Government on the 28^th December 2006 and she was deployed to the Ewi-Palace in Ado-Ekiti as a clerical officer, that her employment was confirmed by the defendant in the year 2011 to take effect from 1^st January 2008. However, on the 6^th October 2011, she was offered a provisional admission into the Government Staff Training School and consequently she was released by the defendant on the 29^th February, 2012 to undergo a six months course leading to improvement in the Local Government Studies. That she received a letter of promotion from the post of Clerical officer GL04 to Senior Clerical Officer GL05 notionally with effect from 1^st January 2009 and financially from January 2014.She averred that she was issued a query sometimes in 2012 for purportedly reporting that a cleaner abandoned her duty and she had been covering for her despite the fact that cleaning is not part of the schedule of her duty, that on the 30^th May 2012, 26^th June 2012 and 2^nd July 2012, she was issue three consecutive queries by the Secretary to the Ewi Council, that her salaries for the period of three months was not paid to her despite repeated demands and pleas. Again on the 30^th May 2012 she was yet issued another query by the Secretary Ewi in Council for dereliction of duty despite the fact that her study leave was due to lapse on 4^th June 2012 and had excuse from duty certificate dated 30^th May 2012. She however informed the Senior Administrative officers in the defendant about her predicament and victimization in her place of deployment (Ewi-Palace in Ado-Ekiti) but nothing was done. She later received a letter on the 11^th July 2012 from the defendant inviting her for a Chat about her salaries that was withheld by the Secretary to the Ewi Council but was told to contact the Treasurer and therefore on the 8th August 2012, she instructed her solicitors to write a letter to the Chairman, Ado-Ekiti Local Government on the victimization, witch-hunting and threat of termination of her appointment and requested that the allegations be investigated with a view of transferring her to another unit of the Local Government as well as commencement of the payment of her salaries which were seized. Sequel to this, she received another query on the 13^th November 2012 on the letter dated 5^th September 2012 which she was asked to respond to within 24hours why disciplinary actions should not be taken against her for externalizing internal matters which is a gross misconduct and violation of the Local Government Staff Rules Section V, Subsection 05517 of Ekiti State 2010 Edition as amended which she responded to the next day. Upon her response, she received another letter dated 22^nd April 2013 written by one Akeem N.O for the defendant posting her out of the palace to the open Registry with immediate effect, therefore, she reported and assumed duty immediately. That to her surprise, she still was not paid her salaries for April 2013 to February 2014 hence she wrote to the Deputy Director of Administration on the 24^th February 2014 but on the 30^th April 2014, she received a letter asking her to proceed on annual leave with effect from 6^th May 2014 to 4^th June 2014 and the sum of N14,172.71k as leave bonus. It is her testimony that the non-payment of her salaries despite repeated demands caused her financial embarrassments, that she wrote to the National Human Right Commission on the 24^th June 2014 on the issue and on the 9^th September 2014, One Mr. Olu Oni wrote on behalf of the chairman of the defendant to the State Accountant General that her salaries be paid as she was not under any disciplinary action. However in December 2004, the Local Government Service Commission invited her to appear before the panel to explain what happened but was not indicted she was told that the only thing that they could do was to redeploy her back to the palace because the palace would be offended by her not being posted back. As such she was posted back by yet another letter dated 4^th March 2015 but was not allowed to resume upon her arrival, she thereafter reported back to the her head of department in the defendant to wade into the situation. She continued that she wrote to the Permanent Secretary of the Local Government Service Commission on the 20^th of April 2015 to narrate her ordeal, however on the 27^th April 2015, she received a letter of termination of her appointment. She contended that the procedure for terminating her employment with the Ekiti State local Government Commission and the non-payment of her salaries for twenty four (24) months is a breach of the principle of fair hearing, natural justice as enshrined in the 1999 Constitution as amended.

On the 27^th March 2017 till the 8th November 2018, this Court ordered that the defendant should file a consequential amended statement of defence and advance same to the claimant. The defendant failed to do so despite being given ample opportunity to present its case, it also failed to comply with cost awarded against it

At trial, the claimant testified for herself as CW, she adopted her sworn deposition on oath dated 24^th February 2017 as her evidence in the case, she also tendered some documents which were admitted as evidence by the Court and marked Exhibits AJ-AJ13. The defendant on the other hand failed to adduce any evidence in support of its case.

Upon the failure of the defendant to comply with the directive of this Court, the Court ordered that the defendant’s right to defence be foreclosed and ordered the claimant to file her final address pursuant to Order 38 Rules 2(1) and (4) of the National Industrial Court Rules 2017.

The Claimant filed her final written address on the 12th December 2018 and formulated two(2) issues for the determination of the Court viz:

Whether in view of evidence before this Court, the claimant is entitled to the reliefs sought?
Whether the Claimant’s appointment has statutory flavour?

On issue one, counsel submitted that by the evidence before the Court, the claimant has proven her case on the balance of probability that the defendant never denied the fact that the claimant was duly employed, confirmed and promoted. Counsel submitted that where a party fails or neglects to challenge any averment validly raised, the issue not contested is deemed conceded, he relied on the case of Nwankwo & ors v. Yar’adua & Ors [2010] 10 SCM 103. He continued that by Section 1 of the Local Government Service Rule 2010 under the introductory part of paragraph 01003 under the definition section defined Local Government Service Commission as a body charged with the responsibility of over-seeing the activities of the personnel recruited for Service development in the Local Government, Ado-Ekiti Local Government inclusive in Ekiti State, he continued that the claimant complied with the provision of Section 02103 of the Ekiti State Local Government Staff Rules 2010 and was employed had her employment confirmed and later got promoted. Counsel submitted further that it is the defendant that has the right to employ an employee into the services of Ado local Government and not the Ewi of Ado-Ekiti or any traditional rulers in Ekiti State. He argued that by the provisions of Sections 02403 and 02404 of the Ekiti State Local Services Rules 2010, the Claimant’s victimization began from the queries which emanated from the Secretary Ewi in Council who is not the employer of the claimant. Counsel noted that the only query by the Local Government was to the effect that she externalized internal matters for informing her solicitor to write for the non-payment of her salary. It is counsel’s contention that the defendant contravened the provision of the Ekiti State Local Government Service Rule 2010 particularly on disciplinary procedure under Section 05201 and 05302, that where an act or rule provides a procedure to be followed, failure upon which such a procedure renders anything done in a nullity. He cited the case of Inakoju v. Adeleke [2000] FWLR (Pt1025) 423 at pg 697-698 that the Ado Local Government did not follow the procedure with regard to discipline of an officer before the claimant’s appointment was terminated.

On issue two, Counsel submitted that the appointment of the claimant is governed and backed up by the relevant statute and the statute provided for appointment under Rules 02102, 02103, 02401, 05201, 05302, 05306 and 02404 of the Ekiti State Local Government Service Rules 2010, he noted further that by the letter of appointment Ado Local Government, Ado Ekiti is the claimant’s employer and not the Secretary Ewi –in-Council. He submitted further that where the appointment of a claimant is governed by a rule that is a subsidiary legislation, such appointment has statutory flavour that the effect of the claimant’s wrongful termination is that she must be re-instated back with all her benefits and allowances paid from the date her salary was stopped, cited in support is the case of Adefemi v. Osun State College of Education Ilesha [2009] All FWLR (Pt. 456) at 1860. Counsel submitted that a Court can order a reinstatement of an employee if it is statutorily flavoured and the termination of the employee’s appointment was wrongful, he cited the case of Akinyosoye Yemisi v. Federal Inland Revenue Services [2013] FWLR (Pt 693), 1992 at 2012 to 2013. Counsel contended further that the assertion that the claimant’s employment is statutorily flavoured and pensionable was not controverted by the defendant and the law is that unchallenged evidence constitutes sufficient proof of a party’s claim, he cited the cases of Kopek Construction Ltd v. Ekisola [2010] 1 SC, 86, Olofu & Ors v. Itidi & Ors [2010] 12 SCM 186, Jolasinmi v. Bamgboye [2010] 11 SCM 127. Counsel concluded by submitting that the defendant failed to file a defence to this action which clearly shows that it has no defence to the action and urged the Court to hold that the claimant has established her case.

Upon a thorough and careful evaluation of the processes filed before this Court including the testimony of the claimant and written submission of learned claimant’s counsel, it is my humble view that the issue that would best determine this suit is:

Whether or not the Claimant has proven his case to be entitled to the reliefs sought?

It is germane for me to state at the onset that this Court on the 22^nd November 2018 delivered a ruling in this case upon the application made by Learned Claimant Counsel that the defendant should be foreclosed because of their persistent failure to file their defence in this case. I hereby adopt same as part and parcel of this judgment.

Now, to the crux of the main suit, the defendant in this suit has since the commencement of this suit failed/refused to file a defence in this case, inspite of ample opportunity granted it to do so. The basic principle of our adversarial jurisprudence is that it is the duty of the defendant to raise his defence, See the case of Federal Univerisity of Technology Minna, Niger State & Ors v. Bukola Oluwaseun Olutayo [2017] LPELR- 43827 (SC). The Court cannot raise a defence for the defendant for a case made against him by the claimant, doing so offends Section 36(1) of the 1999 Constitution as amended and the principle of natural justice particularly the rule that the Court or Tribunal established by law shall be constituted in such a manner as to secure its independence and impartially” as guaranteed by Section 17(2) (e) of the 1999 Constitution as amended. The position of the law is settled that in a circumstance of this nature, the defendant will be deemed to have admitted the claimant’s claim in the statement of claim, see the cases of Ege Shipping & Trading Co Ltd v. Tigris International Corporation [1991] 14 NWLR (Pt.637) P.70 at 84-85, Oba Adeyinka Oyekan II & Ors v. Mr. Ellis Rossek [2009] LPELR-11906 (CA). In the case of Ben. C. Emodi v. Mrs. Patricia C. Emodi & Ors [2013] LPELR-21221 (CA), Akeji JCA said: “Where therefore a Plaintiff files his Statement of Claim raising an allegation of fact against the defendants or one of them, such defendant(s) who do/does not admit the truth of the allegation must file a defence to contradict, controvert, challenge or deny the allegation. Where no defence is filed, the defendant is deemed to have admitted the assertion and the Court may peremptorily enter judgment against the defendant.”

Now, can the defendant complain of lack of fair hearing in this instant? Niki Tobi JSC of blessed memory in Newswatch Communications Ltd v. Attah [2006] 4 SCNJ 282 @299-300 made a far reaching pronouncement on the importance of fair hearing to our adjectival system of justice. I wish to capture his enduring reasoning thus:

“The Constitutional principle of fair hearing is for both parties in litigation. It is not only for one of the parties. In other words, fair hearing is not a one way traffic but a two way traffic in the sense that it must satisfy a double carriage-way, the contest of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantages of the other party undeservedly. That will not be justice… It is the duty of the Court to create the atmosphere or environment for fair hearing of a case. A party who refuses or fails to take advantages of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing…”

The law is notorious as in the above captured decision that where evidence given by a party to any proceeding or by his witness is not challenged by the opposite party who has the opportunity and an enabling environment to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it. This is because in such circumstance the evidence before the Court obviously goes one way as there is nothing in such a situation to put on the other side of the imaginary scale as against the evidence given by or on behalf of the claimant, see the cases of Mabamije v. Otto [2016] LPELR-26058 SC; Mrs Esther Ighreriniovo v. S.C.C Nigeria Ltd &Ors [2013] LPELR-20336 SC, Amayo v. Erinmwingbovo [2006] LPELR-458 SC. The Apex Court in Chami v. UBA Plc [2010] 6 NWLR (Pt.1191) 4& SC; held that where a party offers no evidence as in this instance against the claimant’s case, the burden placed on the claimant is minimal as argued by the learned claimant’s counsel, since there is no evidence challenging the case of the claimant. The Claimant is then at liberty to use the unchallenged evidence to establish her case. The case of Osun State Government v. Danlami (Nig) Ltd [2003] 7 NWLR (Pt 818) 72 @99 was cited with approval in the above case.

The Claimant in this case is however, not absolved from the burden placed on him by law in proving the merit of her case as it is trite that he who asserts must prove the existence of his assertion with credible evidence but the standard of proof on the claimant is minimal, see the cases of Unity Bank v. Olatunji [2013] 15 NWLR (Pt 1378) 503 P. 531, Khaled Barakat Shami v. U.B.A Plc [2010] SCNJ P.23 at 39-40, Ajidahun v. Ajidahun [2000] 4 NWLR (Pt.654) P.605, Anna v. U.B.A Plc [1997] 4 NWLR (Pt.498) P.181 at 189. By the case of Musa v. Ahmed [2018] LPELR-44247 CA, declaratory reliefs are not granted as a matter of course and on a platter of gold. The Claimant must succeed on the strength of her case and not on the weakness of the defence, see also the case of CPC v. INEC &Ors [2011] LPELR-8257 (SC). The law is that such declaratory relief is not granted even on admission by the defendant; see the case of Okoye vs. Nwankwo [2014] 15 NWLR (pt. 1429) 93. In effect it is the duty of the claimant to plead the material facts regarding her employment such as the nature of her employment, the terms and condition of her employment and the circumstances under which her employment was determined, she must also satisfy the Court with credible and convincing evidence that she is entitled to the reliefs sought, see the case of Ozomgbachi v. Amadi & Ors [2018] LPELR-45152 SC, It is the position of the Court that a declaratory reliefs must be prove to the satisfaction of the Court notwithstanding lack/weakness of the defence.

Now, the claimant’s grouse for which she filed this case before this Court is that she was employed into the services of the defendant on the 28th December 2006 as a Clerical officer Grade Level 04 Step 1 (Exhibit AJ) and her employment was duly confirmed vide a letter dated 21st March 2011 with retrospective effect from 1st January 2009. That by the letter dated 15^th January 2014, her promotion/ advancement/conversion/regularization was approved by the defendant from the post of Clerical Officer GL04 to the post of Senior Clerical officer GL05 and was deployed to the palace of the Ewi of Ado-Ekiti upon her assumption of duty that whilst in her place of assignment she was victimized by the Secretary Ewi-in Counsel and was issued several queries as evinced in Exhibit AJ4, that the vindictive act of the Secretary Ewi in council propelled her to instruct her Solicitor to write series of letters to the Chairman of the defendant as disclosed in Exhibit AJ6. She also stated by paragraph 36 of his deposition on oath, her salaries had not been paid since April 2013 despite series of appeals, she averred further that she filed a Complaint before the National Human Right Commission through the Director of Public Complaint Commission (Exhibit AJ7) and that on the 27th April 2015, her employment was terminated by the defendant unlawfully.

It is the law that an employee who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. It is not the duty of the employer as Defendant to prove that the termination was not wrongful. That was the decision of the Court in the cases of Okoebor v. Police Council [2003] 12 NWLR Pt.834 Pg 444; Okomu Oil Palm Co. Ltd v. Iserhienrhien [2001] 6 NWLR Pt. 710 Pg 660. Idoniboye-Obu v. NNPC [2003] 2 NWLR Pt. 805 Pg 589. The Claimant in this suit has placed reliance on the rules and regulations governing her employment with the defendant, which is the Ekiti State Local government Rules. She equally tendered her letter of employment and confirmation of same.

A scan through the rules show by Rule 02102 of the Ekiti State Local Government Staff Rules that, the claimant’s employment with the defendant is that which is pensionable, it is lucid from Exhibit AJ and AJ2 that she was initially appointed as a Clerical officer GL 04 until her promotion to Senior Clerical Officer GL 05. The Claimant it is obvious was a junior staff in the service of the defendant and by paragraph 3 of her deposition on oath she was deployed to the palace of Ewi of Ado-Ekiti. Section IV, Rules 02401 to 02403 of the Ekiti State Local Government Staff Rules provides that:

“Appointment of staff to serve in the Palace shall be done by the Local Government and shall follow the pattern/procedure laid down in Rules 02102 to 02301 above”

Existence of any vacancy in any of the palace shall be reported to the Local Government for necessary action

For the avoidance of doubt any person who is to serve in any palace of the Traditional Rulers shall be appointed and posted to the place by the Local Government. If the affected Traditional Ruler favours the appointment of a particular candidate as his personal staff, the candidate’s name shall be forwarded to the Local Government for proper interview and other necessary procedures before he/she is appointed

Direct appointment by Traditional Rulers of any staff that will be in the payroll of the Local Government is prohibited. If any staff is appointed by any Traditional Ruler before his/her name is forwarded to the Local Government for interview and proper documentation, such Traditional Ruler shall be responsible for the payment of the salary and other emoluments of the staff so appointed for the period covered by such appointment. In effect, the appointment so made shall not be recognized by the Local Government”

It is clear from the above that the Claimant’s appointment was made by the Local Government Service Commission and not the Traditional Ruler (The Ewi of Ado Ekiti), the claimant confirmed this under cross examination. The next pertinent question to answer is whether or not the Secretary Ewi in Council one Chief E.B Ogunmodimu has the power or authority under the regulations guiding the claimant’s employment to issue her a query? Differently put, does the Ewi of Ado Ekiti and the Secretary Ewi in Council have authority to exercise disciplinary control over the claimant’s?

The answer to these questions could be found in the rules guiding the claimant’s appointment. By Chapter Five, Section 1(a) and (b) Rule 05101 of the Ekiti State Local Staff Rules 2010 provides that:

The power to dismiss and to exercise disciplinary control over employees in the local Government Services is vested in the Local Government Service Commission

This power may be delegated to any member of the Commission or any employee in the Local Government Service of Ekiti State.

By Section 1(2) of the Ekiti State Local Government Commission Law, 2010, the Local Government Commission is composed of a full time chairman and Six (6) other members appointed by the Ekiti State House of Assembly. From the above stated law it is seen that the Ewi of Ado-Ekiti or the Secretary Ewi-in Council are not members of the Commission to whom disciplinary powers can be delegated to. Therefore, it is clear that neither the Ewi of Ado-Ekiti nor the Secretary Ewi-in Council are members of the Local Government Commission, hence they both jointly and severally cannot exercise disciplinary control over the Claimant. As such the queries dated 26^th June, 2012, 30^th May, 2012 and 2^nd July, 2012 (Exhibit AJ4) issued by the Secretary Ewi-in Council for the Ewi of Ado-Ekiti to the Claimant is invalid/unlawful, and hereby set aside.

On relief one, the claimant is claiming that the termination of her employment by the defendant is unconstitutional, wrongful, unlawful, ineffectual, null and void. It is trite that by the nature of claimant’s employment, before her employment can be terminated, there must be strict compliance with the regulation governing the employment by the parties. See the cases of Igwillo v. CBN [2000] 9 NWLR (Pt 672), Demshemino v. Council Federal Polytechnic Mubi & Anor [2013] LPELR -20845 (CA). The claimant is not however, absolved from proving her case with credible evidence. In the case of Amodu v. Amode [1990] 5 NWLR (Pt. 150)356 at 370 the Apex Court Per Agbaje JSC (As he then was) of Blessed memory, had this to say:

Since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service, between them, it is for the plaintiff to plead and prove the conditions of contract of service in question. It is also for the plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him”

The cases of Dr. J.I. Okwusidi v. Ladoke Akintola University [2011] LPELR 4057 CA; Joseph Enugunum & Ors v. Chervon Nigeria Ltd [2014] LPELR 24088 CA; are in all apt with the above position of the law.

An employment which is clothed with statutory flavour as in this case must comply strictly with the provisions of relevant statute before terminating the claimant’s appointment, see the case of Ibama v. SPDC (Nig) Ltd [2005]17 NWLR (Pt.954) 364. The trial Court in the case of Adeniyi v. Governing Council of Yaba College of Technology [1993] 6 NWLR (Pt. 300) 426 at 450 held that “ the principles where a contract of service is protected by statute and the removal of a person is predicated upon the none compliance with statutory provision renders the removal ultra vires and void. See also Abdulraheem v. Olufeagba [2006] 17 NWLR (Pt1008) 280 at 328, Eperoku v. University of Lagos [1986] 4 NWLR (Pt1340) 162 at 164, Nandi v. National Ear Care Centre & Anor [2014] LPELR-22910 CA. This is to ensure that the principle of fair hearing is served to the letter failing which the purported termination of employment is to be nullified.

In the instant suit, the relevant statute to be complied with by the defendant is the Ekiti State Local Government Staff Rules, 2010 which regulates her employment with the defendant. It is her statement by paragraphs13 and 14 of her deposition on oath that she was issued three (3) different queries dated the 26^thJune 2012, 30^th May 2012 and 2^nd July 2012 (ExhibitAJ4) by the Secretary Ewi-in-Council for dereliction of her duty, I have held supra that the Secretary Ewi-in Council does not have the power to discipline the claimant, what then is the appropriate step to be taken by the defendant and was the steps as stated in the Ekiti State Local Staff Rules, 2010 adhered to?

By Rule 05501(a) and (b) of the Ekiti State Local Staff Rules 2010 dereliction of duty is a serious misconduct and such employee renders himself liable to be dismissed from the service without formality and the onus lies on him/her to show that the circumstances do not justify the imposition of the full penalty; and (b) that such an employee will not receive salary irrespective of any period during which he / she was absence from duty without leave. Now, it is the deposition of the claimant by paragraph 9 of her statement on oath that she was released by the defendant on the 29^th February 2012 to undergo a six month course leading to the improvement in the Local Government and that she was not in dereliction of her duty. To prove her contention she tendered exhibits AJ1 and AJ4. From a careful examination of exhibit AJ1, dated 29^th of February, 2012, it is seen that the 1^st defendant granted her leave to undergo a six months course in the local Government studies. It is interesting to note by exhibit AJ4 that the period in which the purported queries were issued to her dated, 26^th June, 2012 and 30^th May, 2012 by the Secretary Ewi-in –Council were the supposed period she was away on approved studies. The defendant has failed to establish otherwise vide credible evidence . It is consequent upon this that I believe the claimant and find against the defendants that it has failed to substantiate that the claimant was in dereliction of her duty. I so hold.

It is germane to discuss that the defendant vide the letter dated 5^th September 2012 (Exhibit AJ4) issued the claimant another query for externalizing her complaint and instructing her solicitor to write a letter of complaint (Exhibit AJ6). To the defendants, that singular act of the claimant amounted to gross misconduct which negated the Local Government Staff Rules Section V subsection 05517 of the Ekiti State 2010 and as such she should provide an exculpatory explanation within 24hours why disciplinary action should not be taken against her.

Rule 05517 provides that every employee is subject to the official secret act and is prohibited from disclosing to any person except in accordance with official routine or with the special permission of Government any article, note document or information entrusted to him/her in confidence by any person holding office under any Government in the course of his her official duties. Similarly, every employee shall exercise due care and diligence to prevent the knowledge of such article, note, document or information being communicated to any person against the interest of the Government”

In view of the above cited, I find that the content and letters of the query is erroneous, I say so in view of the fact that it negates the intendment and the spirit of the Rule as this provision is in relation to any document or information entrusted in the confidence of the claimant and not in relation to the enforcement of her fundamental right as her salaries were withheld as in this case. The Claimant merely instructed her solicitors to write the letter (ExhibitAJ6) to find a leeway out of the predicament she was faced with, her intentions were purely to seek an avenue to resolve the crisis she was being faced with in her place of deployment (Office of the Ewi, Ado-Ekiti) as well as to ensure the payment of the monthly salaries that were withheld, the said letter did not in any way divulge any secret act of defendant entrusted in the claimant’s care. It is upon this premise that I find that the purported reason for which she was issued the query dated 5^th of September, 2012 exhibit AJ4 by the defendant is erroneous, misconceived and thus discountenanced. I so hold.

Assuming but not conceding that the claimant action constitutes a gross misconduct, Rule 05401(a-q) provides for actions that constitutes misconducts, Rule 05402 provides further that if a superior officer is dissatisfied with the behavior of any employee subordinate to him/her, he shall inform such employee in writing giving details of the unsatisfactory behaviour and call upon him to submit within a specific time such written representation as he/she may wish to exculpate himself/herself from disciplinary action, that the superior officer may decide whether the employee has exculpated himself enough that no further action need to be taken, or that he has not exculpated himself but that he should not be punished in which case the appropriate formal letter of advice shall be issued to him/her and/or he has not exculpated himself and deserves some punishment as provided for in Rule 05201.

The claimant was issued a query letter dated 5^th September 2012 written by the chairman of the defendant (Exhibit AJ4), on the grounds that she alleged her employers of series victimization she suffered in the cause of discharging her duties. The Claimant responded to same vide another letter dated 14^th November 2012. It is her statement vide paragraph 41 of her deposition that she was invited by the Local Government Service Commission to appear before a panel in December 2014. It is apposite to state that there is nothing on record evincing that she was issued a letter to appear before the panel as she averred save for the exhibit AJ9 dated 11^th of July, 2012 which is an ‘invitation for chart’ from the defendant to her where in by paragraph 22 of her amended statement of facts she pleaded that “she received a letter titled invitation for a chart (sic) by the Ado Local Government and when she got there, they asked the claimant whether there was any time book in the palace but she said no, and they all laughed and asked her to go back to her duty post. She then asked about her withheld salaries, but they told her that the issue had not got to that stage. And she was asked to cc (sic) and call the Treasurer which did (Mr. Babatunde Lawal) but was not opportune to know what they discussed” This was way before she was issued the query dated 5^th of September, 2012. By Rule 05201(e) which provides that:

“…having being found guilty of misconduct and the Commission …it may cause an investigation to be made into the matter in such manner it considers proper and the employee shall be entitled to know where the case against him and shall have an adequate opportunity of making his defence”

It is plain on record that the claimant was not given adequate opportunity to make a defence for herself before the panel as the case against her and upon which her employment was terminated was not made known to her as stated vide Rule 05402 of the Local Government Staff Rules to afford her an adequate opportunity to make her defence before her employment was terminated on the 27^th of April, 2015 (Exhibit AJ10) on the basis of misconduct. It is the law of certain that rules of fair hearing is not a technical doctrine but are of substance. The question is not whether injustice has been done because of lack of fair hearing but whether a party is entitled to be heard before a decision had in fact been given an opportunity of hearing, see the cases of Audu v. FRN [2013] LPELR 19891, Agbo v CBN [1996] 10 NWLR (Pt 478) 370; Ime Udo Osoh v. CBN [2013] 35 NLLR (Pt 103) P1 CA, Audu v. Petroleum Equalisation Fund Management Board & Anor [2010] LPELR-3824. As stated earlier there is nothing before this Court to show that the claimant was afforded an opportunity to make representation before the panel on the allegation of misconduct. I find from all stated above in this judgment that the Claimant has not committed any misconduct, even if she did, there is no evidence before me to prove that the defendant followed or strictly complied with the procedure in terminating the claimant’s employment. It is therefore without paradventure that I find that the defendant breached the provision of the terms of claimant’s employment and resolve this issue in favour of the claimant. Accordingly, I hold that the termination of the claimant’s employment by the defendant vide the letter dated 27th April 2015 is unlawful, null and void and thus set aside.

On Claimant’s claim for reinstatement, Reinstatement connotes in its ordinary and primary meaning to recall the person to the exact position in which he was before his removal that is to restore him to his status quo ante, Olaniyan & Ors v. Unilag & Anor [1985] LPELR-2565 (SC). I have held the termination of claimant’s employment to be unlawful, what this means in law is that claimant never left her employment with the defendant. Thus the claimant whose appointment was terminated must automatically be reinstated. See the cases of Baba v. NCTC [1986] 5 NWLR (Pt 42) 524 CA; Bassey v. ATGG Akwa Ibom State & Ors [2016] LPELR-41244 (CA), Kwara State Civil Service Commission v. Abiodun [2009] NWLR (Pt.493) 1315 @1346 paragraphs F-G. The import of all stated supra is that the claimant in this case is to be reinstated back to his office in the defendant with all right and privileges attached and without loss of promotion effective from the date of the purported terminated dated 27^th April 2015 till she is reinstated.

The claimant is also seeking for the immediate release of all her salaries from April 2013 to April 2015 which were withheld by the defendant. I find no evidence on record to prove that she was being owed salaries for the period she claimed. The claimant has failed to substantiate her claim for salaries owed by tendering her payslip or statement of account to so prove. The only inkling is the fact that by exhibits AJ5, AJ6 and AJ7 that is the letters dated 17/03/2014 from the claimant’s husband on the non-payment of his wife’s 12 months salary, letter from the claimant’s solicitor dated 8^th of August, 2012 and letter from the National Human Rights Commission are all on the alleged non-payment of salary and nothing more. The position of the law is clear and firmly settled that claimant must succeed on the strength of her case and not on the weakness of the defence’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the Evidence Act, 2011 and the cases of Jovinco Nigeria Ltd & Anor v Ibeozimako [2014] LPELR 23599 CA; Odunze v. Nwosu [2007] ALL FWLR (Pt.379) 1295, Kopek Const. Ltd v. Ekisola [2010] All FWLR (Pt.519) 1035. It is consequent upon this that I find that the claimant’s claims for salaries from April 2013 to April 2015 fails. I so hold.

On the claimant’s claim for damages, there is no evidence in prove of any injury sustained, although she tendered receipt of hospital bills for her husband who was allegedly sick and eventually died. According to her, it was as a result of the non -payment of her salary that led to the death of her husband. It has been decided earlier in this judgment that the claimant has failed to substantiate her claim for the non-payment of her salaries, the import of which is that her claim for damages in respect of her husband death and injury cannot equally be sustained. There is no link/nexus between the two reliefs sought as the law is long settled that damages must be proven, the Court cannot fish out for evidence in prove of a party’s claim. It is consequent upon this that I find no merit in this claim and thus dismiss same.

It is in sum that I find that the claimant’s case succeeds in part and thus I make these declarations and order as follows:

That the queries dated 26^th June 2012, 30^th May 2012, 2^nd July 2012 respectively (issued by the Secretary Ewi-in Council for the Ewi of Ado-Ekiti to the Claimant is unlawful and hereby set aside.
That the termination of the claimant’s employment by the 1st defendant by the letter dated 27^th April 2015 is unlawful, null, void and thus set aside.
That the claimant is to be reinstated back to her position without any loss or promotion and entitlement.
That the claimant claims for her salaries from April 2013 to April 2015 in the sum of N500, 000.00 fails.
That the Claimant is to be paid all her salaries and entitlement from the 27^th April 2015 till the date of her reinstatement.
That the defendant is to comply with the judgment within 30 days of this judgment.
That the claimant’s claim for damages fails.
No order as to costs.