IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: December 07, 2017
NICN/OS/11/2013
Between:
Oladiti Wasiu
———————-Claimant
And
- Inspector-General of Police
- Commissioner of Police
(Osun State Command)
- Police Service Commission
———————-Defendants
Representation:
Omoniyi Ogunniyi Esq. for the claimant.
No counsel for the defendant
JUDGMENT
This suit was originally commenced before the Federal High Court Osogbo on March 10, 2010 by way of a Writ of Summons before same was transferred to this Court. By his regularized processes, the claimant is seeking for the following reliefs against the defendants:
- Declaration that the dismissal of the Claimant by the 2nd Defendant from the Nigeria Police Force is wrongful, unlawful and a violation of the Constitutional right of the Claimant.
- An Order reinstating the Claimant into the Nigeria Police Force with full rights and privileges of a policeman.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. The defendants did not enter appearances through any counsel neither did they file any process in defence of this case.
The case of the claimant is that he was a Police Officer who got enlisted into the Nigeria Police Force on June 1, 2006 having trained at the Police College, Ikeja and graduated on January 6, 2007; he was posted to the Osun State Command of the force.
On the November 24, 2009 while on duty, there was an alleged act of stealing at Access Bank Plc. Osogbo and the claimant was arrested alongside one Akande, Bello Tunde and Farola Muyiwa on November 25, 2009. Then the claimant with the three other arrested police officers were subjected to “orderly room trial” as ordered by the 2nd defendant. At the said trial, none of the complainants testified against/gave evidence against the claimant on the offence. Regardless of this fact, the claimant was dismissed from the Nigeria Police Force and he appealed against the said dismissal to the 2nd defendant to re-consider his case but to no avail.
Throughout the hearing of this case, the defendants were absent and unrepresented while the claimant testified as CW1. The Court granted some adjournments to enable the defendants attend the Court and defend their case but to no avail. Eventually they were foreclosed from cross examining the claimant and defending themselves. In line with the Rules of this Court, Counsel were directed to file their final written addresses by the Court but only the claimant’s counsel complied with the direction.
CLAIMANT’S ARGUMENTS
In his final written address, counsel to the claimant formulated these issues for determination of the Court:
- Whether this Honourable Court can act solely on the totality of the uncontroverted evidence given by the claimant in this suit.
- Whether the dismissal of the claimant by the 2nd defendant from the Nigeria Police Force is lawful and in conformity with the claimant’s Constitutional right.
Arguing issue one, counsel submitted that the consensus of judicial authorities on an uncontroverted or unchallenged evidence is that where evidence given by a party to any proceeding was not challenged by the other party who had opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it; citing G.S Pasantto (Tradiing as Com Est) v. Adecentro Nig. Ltd [1997] II NWLR (Pt. 529) 467 ratio II SC; Omoregbe v. Lawani [1990] 3-4 SC. 108 and Aduke v. Obiareri [2002] 4 NWLR (Pt. 758) 537 ratios 6 & 7.
Counsel went on that the claimant has placed before this Court, his amended statement of claim, written statement of oath and further statement of fact and further written statement on oath and that none of these has been responded to by the defendants or denied in anyway whatsoever. He continued that by the decision of the Court in Aduke v. Obiareri (Supra), the statement of claim and the averments in the statements on oath are deemed admitted.
Counsel argued further that an averment in an affidavit not challenged or controverted must be accepted and acted upon by the Court as true, citing Ikono LGC v. De Beacon Finance and Security Ltd [2002] 4 NWLR (Pt. 756) 128 p. 142; Nwosu v. Isesa [1990] 2 NWLR (Pt. 106) 773 and Uzoukwu v. Eze Onu II [1991] 6 NWLR (Pt. 200) 708. To counsel, statement on oath and statement of fact are also affidavits and that the evidence of the claimant before this Court having been deemed admitted require no further proof and that if there need be any proof at all, such proof will be minimal. This is because the Court can act on the claimant’s uncontroverted evidence in the absence of any fact creating any doubt on its mind in respect of the said evidence. He urged the Court to so hold.
Arguing issue two of whether the dismissal of the claimant by the defendants is lawful, counsel submitted that by their averments in paragraphs 16-20 of the claimant’s further written statement on oath dated August 8, 2014; the claimant stated that during his “Orderly Room Trial”, none of the complainants who testified as witnesses made any statement against him, none of them stated any offence committed by him neither did they state his involvement in the robbery that took place at Access Bank Plc. Osogbo on November 24, 2009. However, the 2nd defendant still pronounced the claimant guilty of the non-established offence. To counsel, where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand; citing S.B. Olanrewaju v. Afribank Plc. [2001] FWLR (Pt. 72) 208.
Counsel submitted that the Court has a duty to believe and act on unchallenged and uncontroverted pieces of evidence like those of the claimant herein where such pieces of evidence are found to be credible; citing Walter v. Skyll Nig. Ltd [2000] 13 WRN 71: Savannah Bank Nig. Plc. v. Fatokun [2002] 1 NWLR (Pt. 749) 544 ratio 2. Counsel went on that the claimant was not given any letter of dismissal and as such, the ground of his dismissal cannot be ascertained. He continued that it is implied that the claimant was dismissed on the ground of the allegation of stealing leveled against him; referring to the cases of S.B Olanrewaju v. Afribank Plc. (Supra), the Blacks Law Dictionary, eight Edition, page 1251; Kazeem v. State [2009] 29 WRN 43 @ 74; Oladele v. Nigeria Army [2004] 6 NWLR (Pt. 868) 166; Shell Petroleum Development Company Ltd. v. Chief Victor Olarewaju [2008] 36 (Pt. 2) NSCQR 1187 @ 1207. Counsel also referred the Court to Document C5, the letter dated December 16, 2009 written by the claimant to the 2nd defendant appealing to him to temper justice with mercy and to re-affirm his innocence. The claimant maintained that his appeal was received but it was neither treated nor responded to; which to him, is an act of absolute flagrance of the claimant’s right to fair hearing as enshrined in Section 36 of the Constitution of the FRN, 1999 (as amended).
Counsel urged the Court to hold that his dismissal is wrongful, it is without cause, it is unlawful and should be reversed.
COURT’S DECISION
After a careful consideration of the facts of this case and the claimant’s written argument, I am of the considered view that the only issue to resolve is:
Whether or not the claimant’s dismissal by the defendants is illegal or it was in conformity with the claimant’s Constitutional rights.
However, before delving into the merit of this case, it is necessary to resolve some preliminary issues in the case. Throughout the trial of this case, none of the defendants was in Court. No counsel entered appearance for them and they did not file defence processes. In such situation, the provision of Order 9 Rules 5 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 becomes relevant and it provides:
Where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the Court may proceed to hear the matter and give judgment.
In addition, in the case of Olorunwa v. Akindun [2016] LPELR-40866(CA); the held that:
… A defendant must expressly deny a plaintiffs’ material averment in his statement of claim otherwise he will be taken as having admitted the same. Per Akinbami JCA (P. 37 Paras C-D)
See also the case of Okoebor v. Police Council & Ors: [2003] LPELR-2458 (SC); [2003] 12 NWLR (Pt.834)444; [2003] 5 S.C 11 on this same principle of law. But where a paragraph of the statement of claim is notoriously false to the common knowledge of the Court, like stating that the 10th July is Nigeria’s Independence Anniversary; such a paragraph is not admissible because it is obviously untruth. Per Tobi JSC in Okoebor v. Police Council & Ors (supra) (Pg. 22 paragraphs A-B). See again, Emodi & Ors v. Emodi & Ors [2013] LPELR-21221(CA)
Furthermore, Order 38 Rules 2 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides:
Where a cause fixed for hearing is called and the Claimant appears in Court but the Defendant is absent in Court and has not filed any defence to the claim in accordance with these Rules, the Claimant shall be entitled to judgment as far as he can prove his case.
The provision of the NICN (CP) Rules quoted above presupposes that the claimant is not entitled to automatic judgment whenever the defendant does not turn up for trial. Rather, the claimant is still required to prove his case to the satisfaction of the Court on his claims before the Court. It is trite that the case of a claimant stands or falls upon his own evidence and not upon the weakness of the defence because it is he that is asserting, and so, he must prove; see Idehen v. Registered Trustees Ikoyi Club 1938 [2014] 45 NLLR (Pt. 145) 558; Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083 and West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 199 paras C-E. See also the provisions of sections 131 and 134 of the Evidence Act. In the circumstance, I hold that, even though the defendants did not appear in Court throughout the trial of this case, the claimant still has a legal duty to establish his case to the satisfaction of this Court.
IS THE CLAIMANT’S DISMISSAL BY THE DEFENDANTS ILLEGAL?
The law is that, when an employee complains that his employment was illegally dismissed, the employee has the onus to place before the Court the terms and conditions of the contract of employment and to prove the way and manner those terms and conditions were breached by the employer in dismissing him. It is not the duty of his employer who is the defendant to his action to prove that it was not in such breach; see West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-190 paras D-A .
The claimant in the instance case has not placed before the Court, the terms and conditions governing his employment with the defendants; neither has he placed before the Court the Rules, Regulations or the Disciplinary Procedures on how his employment could be dismissed from the Nigerian Police Force. His counsel did not even refer to any of such document or law on the claimant’s dismissal. The claimant must rely squarely on the strength of his own case to establish his reliefs, he has a duty to know which document would anchor his case; and so, which document to tender. Where claimant fails in this regards, he swims in his/her own self-induced problem and this will not be the fault of the defendants; see the case of Ambali v. Golden Capital Plc. [2015] 59 NLLR (Pt. 203) 90 NIC 155 – 156 paragraphs A – C. By failing to tender the terms and conditions of his employment and the Rules or procedure for dismissing him by the Nigeria Police, this Court has no means of determining the way and manner those terms and conditions, Rules or Disciplinary Procedures were breached by the defendants in dismissing the claimant’s employment. Thus, the Court cannot decide whether or not the claimant’s dismissal is wrongful or illegal, regardless of the fact that his pleadings and evidence are deemed admitted by the defendants. In essence, the claimant has not discharged the burden of proving this case in compliance with the provision of section 131 of the Evidence Act. See also the recent decision of this Court in the case of Adeleke Olatunde Dagunduro v. Power Holding Company of Nigeria Plc. & Anor unreported Suit No: NICN/IB/52/2014 Judgment of which was delivered on April 25, 2017.
It is again the argument of the claimant’s counsel that where the dismissal of a servant is based on a criminal allegation, such allegation must first be proved beyond reasonable doubt before a Court with competent jurisdiction before the dismissal can stand; citing S.B. Olanrewaju v. Afribank Plc. (supra). In the instant case, the claimant’s letter of dismissal is not before the Court neither is the copy of the ‘Orderly Room Trial’ part of the Court’s record on this case, so that the Court can ascertain the exact reason for the claimant’s dismissal. Thus, I find and hold that the Court cannot apply this principle of law being canvassed by the claimant’s counsel to this instant case.
Besides, it is trite that where an allegation of crime is made against an employee, it has to be proved beyond reasonable doubt in a court of law seized with jurisdiction to try the offence. However, where the alleged crime is termed misconduct in the terms and conditions of the employment between the parties, then the employer can apply appropriate sanction to either terminate the employment or dismiss the erring staff without first of all prosecuting him for the alleged crime. See the case of Anaja v. UBA Plc. [2011] 15 NWLR (Pt. 1270) 377 CA. Furthermore, in the case of Ansmabe v. BON Ltd [2005] 8 NWLR (Pt. P28) 650, the Court held that ‘whilst a servant who has stolen, embezzled or misappropriated his master’s funds is liable to be prosecuted for his crime in court, the master needs not wait until he is so prosecuted before determining his employment.
Consequently, I find and hold that despite the fact that the defendants did not appear in Court throughout the trial of this case to challenge it; the claimant has failed to prove his case to the satisfaction of the Court in line with the provision of section 131 of the Evidence Act, 2011 and under Order 38 Rules 2 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. I further hold that the claimant’s case lacks merit and it is accordingly dismissed.
Judgment is entered accordingly.
I make no order as to cost.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
