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National Industrial Court

PROFFESSOR GBOLAGADE AYOOLA -VS- THE GOVERNING BOARD OF

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP E. N. AGBAKOBA

 

DATE:  30TH OCTOBER, 2019                                      

SUIT NO NICN/ABJ/215/2016

 

BETWEEN

PROFFESSOR GBOLAGADE AYOOLA����������������������….CLAIMANT

 

AND

1. THE GOVERNING BOARD OF THE NIGERIAN NATIONAL

MERIT AWARD

2. PROFESSOR EM. ESSIEN

(Chairman, Governing Board of the Nigerian National Merit Award)       DEFENDANTS

3.   THE SECRETARY TO THE GOVERNMENT OF THE 

      FEDERATION

4. THE ATTORNEY GENERAL OF THE FEDERATION

 

REPRESENTATION

BABAJIDE BABATUNDE for the Claimant

A. M. ADOYI for the 1st and 2nd Defendants

 

JUDGEMENT

  1. The claimant, by a General Form of Complaint filed on 14thJune, 2016 along with the accompanying frontloaded documents, approached the Court for the following reliefs:
    1. A DECLARATION that the purported suspension and termination of Claimant�s appointment as Secretary of� the Nigerian National Merit Award before the expirations of his two�year tenure of� office vide letters dated the 4th February 2016 and the 7th April 2016 respectively is a breach of the principles of natural justice, the terms and conditions of the appointment of the Claimant and is therefore irregular, wrongful, illegal, unconstitutional, null, void and of no effect whatsoever;

 

  1. AN ORDER setting aside the letters of suspension and termination of the Claimant�s appointment as Secretary of the Nigerian National Merit Award dated the 4th February 20 16 and the 7th April 20 16 respectively;

 

  1. AN ORDER directing the Defendants to pay the Claimant the sum of N43,645,.582.75 being the outstanding salary arrears and allowances based on the approved scale applicable to the chief executive officer/executive secretary of a Grade A Parastatal of the Federal Government for his two-year tenure of office.
  2. A DECLARATION that pasting the query of 16th February 2016 by the 1st and 2nd Defendants in a public place is wrongful, illegal and violated the extant public service rules.

 

  1. AN ORDER directing the 1st and 2nd Defendants to issue a normal letter of apology to the Claimant for pasting the said query in a public place.

 

  1. Damages in the sum of N10,000,000.00 (Ten Million Naira only) for the embarrassment caused the Claimant as a result of pasting the said query in a public place.

 

4TH DEFENDANT�S STATEMENT OF DEFENCE filed on 16thDecember 2016.

 

  1. 4th Defendant denying paragraphs 19, 21, 22 and 23 of the Statement of Fact averred that it does not know those that vied for the position neither was it involved in the election/voting process. And that it was never informed about the salary irregularities of the claimant neither, is it the body charged with monitoring or giving the scale of salaries payable to employees.

 

  1. 4th Defendant reacting to paragraphs 29, 30,31,32,33,34,35,36,37 of the Statement of Facts stated that the claimant was not just told to quit his position, that after issuing him query which he failed to respond to, an investigation committee was set up to look into the case, of which the claimant was sent a letter dated 15th February, 2016 inviting him to appear before the committee which he refused to do and as a result of this, his appointment was terminated.

 

  1. Responding to paragraph 41, 42 and 43 of the statement of facts, 4th defendant averred that after the claimant was issued a query dated 4th February, 2016, claimant was suspended from performing his executive functions by the board for the following reasons: falsification of records, suppression of records, false claim against the board of NNMA on impropriety, gross misconduct in indirectly corresponding with the SGF and other government officials without approval of the chairman of the board or appropriately routing them amongst other offences.

 

  1. 4th Defendant denying paragraphs 47,48,49,50,51,52,53 and 54 stated that he is not under obligation to pay the outstanding salary, allowances or other emolument from May, 2014 to May, 2016 as he is not the employer of the claimant. And that the claimant has no claim or cause of action whether directly or indirectly against the Attorney -General of the Federation sued as the 4th Defendant.

 

  1. WHEREOF the 4th Defendant hereby prays this Honourable court to dismiss all the Claimant�s Claim against the 4th Defendant for lacking in merit and legal justification in this suit.

 

 

REPLY TO 1ST & 2ND DEFENDANT�S STATEMENT OF DEFENCE filed on 19thJanuary, 2017.

 

  1. Reacting to paragraphs 23 and 24 of the 1st and 2nd Defendants� Statement of Defence, the Claimant stated that the Chief Accountant of NNMA wrote a letter to the National Salaries, Income and Wages Commission on the directive of the late Chairman of the 1st Defendant, Professor Idachaba, and that  the response of the Commission and other findings from the survey of salaries of heads of Federal Government parastatals in the category of the NNMA were duly reported to the late Chairman. Also, that the late Chairman�s directive on the said letter to the Commission and the survey carried out were part of data collection only with a view to determining the appropriate salary and allowances of the Claimant.

 

  1. Claimant admitted paragraph 25 of the Statement of Defence to the extent that the Claimant presented the statute to the Defendant as applicable law to determine his salary and allowances but which the 1st Defendant refused to countenance.

 

  1. In response to paragraphs 32 and 42 of the Statement of Defence, the Claimant stated that his leave was duly sought from, and approved by, the 3rd Defendant being the appropriate authority to do so. That in any case, at the time Claimant�s leave was sought for and approved, the 1st Defendant was not in existence as it stood dissolved before it was subsequently reinstated by the Federal Government.

 

1ST AND 2ND DEFENDANTS� JOINT STATMENT OF DEFENCE/COUNTER CLAIM filed on 7thFebruary, 2017.

 

  1. The 1st & 2nd defendants admitted paragraph 13 of the statement of fact to the extent that by the appointment of the claimant as the secretary to the 1st defendant, he became the head of the Nigerian National Merit Award secretariat, operating the structure and supervising the administrative and other functions of all staff as directed by the 1st defendant. That he was also appointed as the Chief accounting officer responsible to the board on all matters and to serve as a direct link to the office of the secretary to the government of the Federation on the directive of the 1st defendant. Furthermore, that the claimant was at all material time answerable to the 1st defendant and was never appointed as the Chief Executive officer of the Nigerian National Merit Award.

 

  1. 1st & 2nd defendants admitted paragraph 15 of the statement of fact and state that the terms and conditions of service of the claimant is regulated by the Nigerian National Merit Award Act, his letter of appointment and the public service rules.

 

  1. Denying paragraphs 23, 24 and 25 of the statement of fact, 1st and 2nd defendants averred that upon assumption of office, the claimant wrote to the National salaries, income and wages commission to determine the scale of the office of the secretary to the Nigerian National Merit Award by a letter dated the 19th day of June, 2014. That the commission responded by a letter dated the 24th day of June, 2014, further correspondence between the claimant, the National salaries, income and wages commission by letters dated 25th July, 2014 and 2nd July 2014 fixed the salary of the claimant. However, that upon receipt of the response from the National salaries income and wages commission, the claimant in bad faith held back the content of the letter from the 1st defendant at the meeting where his salary was deliberated upon and subsequently fixed.

 

  1. Furthermore, that claimant subsequently approached the 1st defendant to determine his salary which the 1st defendant without knowledge of the procedure for fixing salaries of public servant as it was the first time they were to appoint a secretary independent of the office of the secretary to the Government of the Federation, placed the claimant on the salary scale of a Professor that he was before he became the secretary of the 1st defendant. And that the claimant accepted the salary placement as same was higher in scale than what was advised to be paid to the claimant by the National salaries, income & wages commission which fact the claimant withheld from the 1st defendant.

 

  1. 1st & 2nd defendants reacting to paragraph 32 and 33 of the statement of fact stated that the claimant left his duty post without approval of his employers and while the claimant was away, the 1st and 2nd defendants discovered certain improprieties which required explanations hence, the 1st defendant convened a meeting to decide the appropriate steps to be taken. And that the claimant was investigated and was subsequently invited before a committee to answer to complaints levied against him.

 

  1. Admitting paragraphs 42 and 46 of the statement of fact, 1st & 2nd defendants stated that the claimant was dismissed by the 1st defendant upon the recommendation of the committee set up to investigate him and for services no longer required; stating that the claimant�s appointment was duly terminated, as by its law, could hire and fire in line with due process of law, which it complied with.

 

  1. In response to paragraph 54 of the Statement of Facts, the 1st & 2nd defendants stated that the claimant is not entitled to the reliefs stated in sub-paragraphs (i) to (vi) of the statement of fact against the & 2nd defendants; and that this suit against them is malicious, frivolous, misdirected and should be dismissed with cost.

 

1ST DEFENDANT�S COUNTER CLAIM

 

  1. The 1st defendant/ counter claimant averred that if the 1st defendant were aware of the recommendation of the National Salaries, Income & Wages Commission to fixing the salary of the claimant, they would have abided by the decision as it is the body responsible for fixing the salaries of the claimant and all other employees of the 1st defendant and their decision is binding on the 1st defendant.

 

  1. The 1st defendant/counter claimant averred that the claimant without the prior approval of the 1st defendant appointed a personal assistant to the office of the secretary to the 1st defendant. And that when the subject of the personal assistant to the secretary of the 1st defendant was brought before the 1st defendant for deliberation in their meeting of the 1st day of December, 2014, the board ruled that the appointment of the special Assistant be withdrawn and the claimant should present a formal request for that purpose. However, that despite the directive of the 1st defendant, the claimant failed, refused and neglected to withdraw the appointment of Dr. Olajide Ogunlayi as he continued to attend various management meeting.

 

  1. The 1st defendant/counter claimant averred that at the meeting of the 1st defendant held on the 4th day of February, 2016, a committee was constituted to investigate complaints of misconduct against the claimant; and that when the committee concluded its sitting it was recommended that the claimant�s appointment be terminated and the claimant�s appointment was accordingly terminated.

 

  1. Whereof the 1st defendant counter claims against the claimant as follows:

 

  1. A declaration that the various acts of the claimant in awarding contracts without complying with the due process of the law as prescribed by the Public Procurement act is a breach of his fiduciary duty, the terms and condition of his appointment and due process of the law.

 

  1. A declaration that the claimant�s refusal to appear and/or represent himself before the committee duly constituted by his employers to investigate complaints levied against him amounts to misconduct.

 

  1. A declaration that the various acts of the claimant flouting the directive of the 1st defendant, spending beyond approved budget without prior approval; awarding contracts without following the due process of law as laid out in the Public Prosecution Act, reshuffling the NNMA secretariat without the prior consent of the 1st defendant, presenting the budget of the NNMA without authorization flouting the directive of the 1st defendant inter alia amount to acts of insubordination.

 

  1. A declaration that the act of the claimant withholding the various correspondences he had with the National Salaries, Incomes and Wages Commission from the 1st defendant in the determination of his salary scale amounts to suppression of record.

 

  1. A declaration that the claimant�s salary scale is as placed by the salaries and wages commission, the body empowered by the Act of the National Assembly to fix salaries scale of all workers in the public sector.

 

  1. A declaration that the act of the claimant withholding the letter dated 301 September, 2015 from the 1st defendant and making the l defendant peg the claimant�s salary at par with the salary scale of the professor amounts to suppression of records and a fiduciary breach of trust.

 

  1. An order directing the claimant to refund to the 1st defendant the sum of N1,291,415.45k being the difference in the sum he was erroneously paid under the scale of a professor and the scale of salary of a GL 17 as proposed by the National Salaries, Income and Wages Commission from the 5th day of May, 2014 to the 5th day of April, 2016 when his appointment was terminated.

OR

An order directing the claimant to refund to the 1st                         defendant the sum of N866,866.39k being the                                 difference in the sum he was erroneously paid under the                   scale of a professor and the scale of salary of a GL 17 as                  proposed by the National Salaries, Income and Wages Commission had he completed his tenure as secretary to the 1st defendant 5th day of May, 2014 to the 4th day of May, 2016.

 

viii)      An order directing the claimant to pay to the 1st defendant, the      sum of N1,000,000 being the cost of prosecution of this suit       instituted by the claimant.

 

ix)        An order directing the claimant to return to the Nigerian National   Merit Award, a set of the Laws of the Federation, 2010 which was         assigned to the office of the secretary of the Nigerian National             Merit Award but taken away by the claimant as same is a public      property.

 

x)         General damages in the sum of N20,000,000 (Twenty Million          Naira).

REPLY AND DEFENCE TO COUNTER CLAIM

REPLY TO 1ST & 2ND DEFENDANTS� STATEMENT OF DEFENCE filed on 21stMarch, 2017.

 

  1. In reply to paragraphs 23 and 24 of the 1st and 2nd Defendants� Statement of Defence, the Claimant stated that the correspondence with the National Salaries, Income and Wages Commission was on the directive of the 1st Defendant though the Chairman at the material time, late Professor Idachaba, and the response of the Commission and other findings from the survey of salaries of heads of Federal Government parastatals in the category of the NNMA were duly reported to the 1st Defendant through the late Chairman.

 

  1. The claimant admitted paragraph 23 of the Statement of Defence only to the extent that the Certain Political, public & Judicial Office Holders (Salaries & Allowances, etc.) Act was presented to the 1st Defendant as applicable law to determine Claimant�s salary and allowances but the 1st Defendant refused to countenance it.

 

  1. Reacting to paragraphs 32 and 42 of the Statement of Defence, the Claimant stated that by letter dated 22nd January 2016, his 2016 annual leave was duly sought from, and approved by, the 3rd Defendant being the appropriate authority to do so.  Furthermore, that at the time when Claimant�s leave was sought for and approved, the 1st Defendant was not in existence as it stood dissolved by the President.

 

DEFENCE TO 1ST DEFENDANT�S COUNTER CLAIM

 

  1. In answer to paragraph 4 of counter claim, the Claimant/defendant to counter claim stated that he rejected his placement on the salary of� a Professor but the 1st Defendant/counter Claimant appealed to him to exercise patience pending when the 1st Defendant should have consulted with the Federal Civil Service Commission as required by the NNMA Act and the resolution of financial problems.

 

  1. Responding to paragraph 30 of counter claim, the Claimant/defendant to counter claim stated that the 1st Defendant/counter claimant was fully aware of the National Salaries, Income & Wages Commission�s recommendation which was the reason it initially offered the Claimant the salary of a director which the Claimant rejected before he was offered the salary of a Professor.

 

  1. In response to paragraphs 31 �31 of counter claim, the Claimant/defendant to counter claim admitted the appointment of a personal assistant, but stated that as head of a Federal Government parastatal, he was entitled to a personal assistant whom he paid from his own salary and 1st defendant/counter claimant never queried him for the appointment.

 

  1. In rebuttal of paragraph 36 of counter claim, the Claimant/defendant to counter claim stated that at no time did he leave his duty post in December 2015 or at any other time for that matter.

 

  1. The Claimant/defendant to counter claim further averred that he sought and contained approval for his 2016 annual leave from 25th January, 2016 to 5th February, 2016 from the 3rd Defendant through the Permanent Secretary (Special Duties) and with the concurrence of the Permanent Secretary (General Services), both in the office of the 3rd Claimant being the appropriate authority to approve his leave.

 

  1. In answer to paragraphs 38, 39, 40, 41, 42 and 43 of counter claim, the Claimant/defendant to counter claim stated that the 1st Defendant/counter claimant never set up any committee to investigate the Claimant. And that he was neither invited to appear before any committee nor did he receive any such invitation either by electronic mail of any other mode of communication.

 

  1. The Claimant/defendant to counter claim shall at or before trial contend that the 1st Defendant�s counter claim is patently hopeless as the reliefs being Sought are incompetent and not properly made out on one or all of the following grounds:

 

  1. that the Claimant�s appointment having been terminated by the 1st Defendant, the counter claim discloses no cause (or reasonable cause) of action against the Claimant;

 

  1. that the Honourable court is Coram non judice in respect of the counter claim as it is not cognisable in law; and

 

  1. that the counter claim is an abuse of court process as it constitutes an attempt to direct the court to both what it cannot do.

 

  1. Whereof the Claimant/defendant to counter claim urges this honorable court to dismiss the counter claim with substantial costs.

 

REPLY TO DEFENCE TO COUNTER CLAIM filed on 3rdJuly, 2017.

 

  1. In reply to the claimant/defendant to counter claimant�s averment in paragraph 8 of his defence to counter claim, the 1st defendant/counter claimant stated that it was the claimant/defendant to counter claim who without the prior approval of the claimant to counter claim wrote to the 3rd defendant on a need to amend the NNMA Act. And that the proposed amendment of the NNMA act which was the sole brain-child of the claimant/defendant to counter claim has been abandoned as parties concerned see no reason for the amendment.

 

  1. Reacting to the claimant/defendant to counter claimant�s averment in paragraphs 23, 24 and 25, the 1st defendant/ counter claimant stated that the issue of the claimant/defendant to counter claim�s salary was first discussed at the meeting of the 1st defendant when the 2nd defendant resumed office as the Chairman of the 1st Defendant/counterclaimant; as after the demise of the then Chairman of the 1st defendant during his trip in 2014, the 1st defendant did not convene another meeting till the appointment of the 2nd defendant.

 

  1. In reply to the claimant/defendant to counter claimant�s averment in paragraph 38 the 1st defendant/ counter claimant stated that this Honourable Court is vested with jurisdiction to appropriately determine the counterclaim arising from the same suit.

 

  1. Trial commenced on 23rd April 2018, the Claimant testified for himself as CW adopted both his witness statement on oath and his additional statement on oath dated 14th of June 2016 and 21st of March 2017 respectively which were marked C1 and C2 accordingly. CW also tendered 7 other     documents, which were admitted and marked as Exhibits C3-C9. He was duly crossed examined by the 1st and 2nd Defendants.
  2. The Acting Secretary of the 1st Defendant pursuant to the Subpoena duces tecum of, 4th July 2017  marked as Exhibit C22 at the instance of the Claimant, produced the 11 documents which were admitted and marked as ExhibitC10-C21. Thereafter the Claimant closed this case.

 

  1. The 1st and 2rd Defendants called three (3) witnesses. Elizabeth Mu�azu, who testified as DW1, on 29th of October 2018 adopted her witness statement on oath dated 7th February 2017 as her evidence and same was marked as Exhibit Dl. She tendered 2 documents which wereadmitted and marked as Exhibits D2-D3. She was crossed examined by the Claimant counsel.

 

  1. The defendant�s 2nd witness was Ibrahim Namadi, he testified as DW2 on 29th of October 2018 adopted his witness statement on oath of 7th February 2017 as his evidence and same was marked as Exhibit D4. He also tendered 2 documents which were admitted and marked as Exhibits D5-D6. He was cross examined by the Claimant.

 

  1. Lastly, the defendants on 7th of May 2019 called one James Bako, who testified as DW3, adopted his witness statement on oath of 7th February 2017 as his evidence and same was marked as Exhibit D7. He tendered 12 documents which were admitted and marked as Exhibits D8-D20. He was crossed examined by the Claimant during which Exhibit D21 was tendered through him. Although DW3 filed an additional witness statement on oath he neglected to formally adopt same during examination in chief, I shall refer to this subsequently

 

  1. At the close of trial parties were instructed to filed their final addresses in line with the provisions ofthe rules of this court.to wit ; Order 19 rule 22.

 

  1. 10. lt is pertinent to note that DW3 did not adopt his further witness statement on oath dated 25th July 2018. The process is deemed abandoned and liable to be struck out. Consequently, 1st and 2 Defendants� amended Reply to defence to Counter claim goes to no issue and is deemed abandoned.

 

1ST AND 2ND DEFENDANTS� FINAL WRITTEN ADDRESS filed on 31stMay, 2019.

 

ISSUES

1.   Whether the suspension and subsequent termination of the         appointment of the Claimant by the Respondent from the            Nigerian National Merit Awards was lawful and in accordance       with his terms and conditions of service.

 

  1. Whether the 1st and 2d Defendants are entitled to the grant of their Counter Claims.

 

  1. Learned Counsel posited that the 1st Defendant�s powers to hire remunerate and fire the Claimant is derived from the provisions of the Nigerian National Merit Award Act 1992.

 

  • 43.  Claimant submitted that where the Claimant alleges that the terms and conditions of his employment was breached by his employers in terminating his employment; the onus of proof is on him to sufficiently prove how such terms and conditions was breached. Per Peter- in the case of AJi V. Chad Basin Development Authority & Anor. [2015] LPELR � 24562 (SC).

 

  • 44.  He submitted that where a person has been afforded an opportunity to be fairly heard but refuses to avail himself of that opportunity such a person cannot be heard to complain that his right to be fairly heard was breached. Chami V. United Bank for Africa PLC [2016] 6 NWLR Part 1191 P.474; Darma V. ECO Bank [2017] LPELR � 41663 (SC).

 

  1. It is counsel�s submission that where the law has provided for a particular procedure of doing anything, such procedure must be followed, otherwise the act done would be null and void. Amaechi V. INEC &Ors (No. 3) [2007] 18 NWLR Part 1065 P. 105.

 

  1. Counsel argued that the case of the claimant is that because the 1st and 2nd Defendants were purportedly aware of what he was supposed to earn but went ahead to illegally pay him what he is not entitled to by law hence absolved him of any liability cannot hold water as parties cannot by consent or willful omission circumvent the provision of the law. That this Honourable Court has the inherent powers to protect the Government treasury. Akinbiyi V. Lagos Island Local Government Council &Ors [2012] LPELR � 19839 (CA).

 

  1. He contended that the 2 year tenure which the Claimant is tenaciously holding on to is not statutorily provided for by the NNMA Act, 1992, as the Claimant was just a mere appointee of the Board which he is wholly responsible to and which exercises disciplinary control over him including dismissal under Section 4(2). And that the Claimant was therefore wrong to have represented himself as the executive secretary of the 1st Defendant and as a result wrote several correspondences to the 3rd defendant without the authorization of the 1st and 2nd defendants even when he was directed to desist from such acts and was queried in respect of same, thus, that such actions by the Claimant amounted to insubordination. University of Calabar V. Essien [1996] NWLR Part 477 P. 225; Jenkins v. Shelley (1939) 2 K.B. 137 at 14; R. v. Grant (1957) 1 W.L.R. 906, per IGUH, J.S.C. (Pp. 68-69, Paras. G-A).

 

  • 48.  Furthermore, that the reliefs sought by the Claimant as per his complaint in the statement of Claim are declaratory in nature hence Claimant must succeed solely on the strength of his case. Nigerian Gas Co. Ltd. V. Mr. GO. Dudusola [2005j 18 NWLR (Pt.957) Pg. 292.

 

 

CLAIMANT�S FINAL WRITTEN ADDRESS filed on 18thJune, 2019.

 

ISSUES

  1. Whether the provisions of the law regarding disciplinary procedure and fair hearing were not breached by the 1st and 2nd Defendants in suspending and terminating the appointment of the Claimant before the expiration of his tenure;

 

  1. Having regard to the statute establishing the 1st Defendant, whether it does not possess the power to determine or fix the Claimant�s salary and allowances in line with the law;

 

  1. Considering the Claimant�s functions and the terms and conditions of his appointment, whether the Claimant is (not) entitled to the salary and allowances of the Chief Executive of Grade A Parastatal of the Federal Government.

 

  1. Whether the 1st and 2nd Defendants have a cause of action and/or right of action against the Claimant as to imbue this Honourable court with jurisdiction to entertain and/or grant declaratory reliefs in their Counter claim, or alternatively.

 

  1. Whether the 1st and 2nd Defendants� have proved their Counter claim against the Claimant.

 

ON ISSUE 1

Whether the provisions of the law regarding disciplinary procedure and fair hearing were not breached by the 1st and 2nd Defendants in suspending and terminating 00 appointment of the Claimant before the expiration of his tenure.

 

  • 49.  It is counsel�s submission that the crux of the duty of this Honourable court on this issue is to determine whether or not the 1st and 2nd Defendants took the appropriate statutory steps in purporting to suspend the Claimant from office and terminate his appointment. Section 4 (1) of the Nigeria National Merit Award Act.

 

  • 50.  Counsel posited that a contract of service that enjoys statutory protection can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. Olaniyan v. University of Lagos (1985) NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; (1981) 1 SC (Reprint) 26; Oluruntoba-Oju v. Abdul-Raheem (2009) 5-6 SC (Pt. 11) 57.

 

  • 51.  He argued that the Claimant cannot be suspended from office or his appointment terminated without full compliance with the relevant provisions of the law and that if any disciplinary action is to be taken against him there must be strict compliance with those provisions as required before such disciplinary action can be properly justified. Iderima v. R.S.C.S.C. (2005) All FWLR (Pt. 285) 431.

 

  1. Counsel noted that the DW2 under cross-examination turned around to admit that Claimant was not suspended on the basis of any audit, thus, that this material contradiction in DW2�s testimony only goes to show that the assertion of 1st and 2nd Defendants of having followed due process in suspending the Claimant is nothing but a ruse. As it is the position of the law that no witness who has given on oath material inconsistent evidence is entitled to the honour of credibility. Ezemba v. Ibeneme (2004) All FWLR (Pt. 223) 1786 @ 1816; Agbi v. Ogeh (2006) All FWLR (Pt. 329) 941 @ 968.

 

  1. He submitted that the facts in evidence show that 1st and 2nd Defendants afforded the Claimant no opportunity to make his defence to the allegations before his suspension and that the procedure adopted in suspending the Claimant therefore grossly violated Rules 030302 to 030306 of the PSR governing disciplinary procedure for serious misconduct made applicable pursuant to Rule 030403.

 

  1. Counsel argued that the right to fair hearing arises where there is an allegation of misconduct which may result and in fact did result in some form of punishment or deprivation of some right. Olatunbosun v. Nigerian Institute for Social and Economic Research Council (1988) 3 NWLR (Pt. 80) 25 @52.

 

  1. He submitted that Exhibit D2 (2), the supposed letter of invitation, has no evidential value as it was not signed by the supposed maker and that it is settled law that an unsigned document commands no judicial value, as it is a worthless piece of paper which cannot benefit any party that seeks to rely on such document. Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 131; Lawrence v. Olugbemi (2018) LPELR-45966 (CA).

 

  1. Secondly, that DW1 is not the maker of the document. That though the name of DW2 appeared on it, it is not in evidence that he was called to testify in respect of the document or to link it to the specific fact in issue. Flash Fixed Odds Ltd v. Akatugba (2001) 9 NWLR (Pt. 717) 46 63, Tobi JCA (as he then was).

 

ON ISSUE 2

Having regard to the statute establishing the 1st Defendant, whether it does not possess the power to determine or fix the Claimant�s salary and allowances in line with the law.

 

  1. Counsel submitted that once the words of a statute are clear and unambiguous, the court is bound to give effect to their ordinary and grammatical meaning and that the court has to follow the literal rule of interpretation, and cannot in the process resort to any extrinsic or external aid. That the court must construe a statute according to its expressed intention. Adsa v. Oyinwola (2000) 6 SC (Pt. II) 47; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 8.

 

ON ISSUE 3

Considering the Claimant�s functions and the terms and conditions of his appointment, whether the Claimant is (not) entitled to the salary and allowances of the Chief Executive of Grade A Parastatal of the Federal Government.

 

  1. Counsel maintained that the DW2 under cross-examination admitted that the 1st Defendant, like all part-time boards of the Federal Government, sits maximum of 6 times in a year. That he further admitted that the 1st Defendant is not involved in the day-to-day management of the NNMA and that Rule 160201 (b) of the PSRalso prohibits the direct involvement of the 1st Defendant in the day-to-day management of the NNMA.

 

ON ISSUE 4

Whether the 1st and 2nd Defendants have a cause of action and/or right of action against the Claimant as to imbue this Honourable court with jurisdiction to entertain and/or grant declaratory reliefs in their Counter claim, or alternatively.

 

  1. Counsel posited that where there is an allegation of misconduct against a public servant, he can only be subjected to administrative disciplinary procedure in accordance with the extant rules. And that where his employer fails to take him through the disciplinary process, it cannot afterwards call upon the court to do so through declaratory reliefs as the court is not the proper forum to investigate and discipline such erring officer. That the power to discipline an erring officer for misconduct is only vested in the 1st Defendant (and not this Honourable court) by section 4 (2) (a) of the NNMA Act and the PSR.

 

ON ISSUE 5

Whether the 1st and 2nd Defendants� have proved their Counter claim against the Claimant.

 

  • 60.  Learned Counsel submitted that declaratory reliefs are never granted as a matter of course and on a platter of gold, as they are granted only when credible evidence has been led by the person seeking the declaratory reliefs as he would succeed only on the strength of his own case and not the weakness of the other party. Oguanuhu v. Chiegboka (2013) 2 SCNJ 693 @ 707; Matanmi v. Dada (2013) LPELR-1 9929 (SC).

 

  1. He submitted that evidence of DW3 is not only materially contradictory but it also amounts to an inadmissible hearsay. That his assertion under cross-examination that he was not allowed at the 1st Defendant�s meeting where Claimant�s salary was discussed clearly disqualified him from testifying about what transpired at the said meeting and to positively say that Claimant withheld Exhibit D5 (3) from the 1st Defendant during the meeting. And that in our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Opara v. A.G., Federation (2017) 9 NWLR (Pt. 1569) 61; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391.

 

  • 62.  Counsel submitted that Relief (ix) must fail as the 1st and Defendants failed to prove the averment in paragraph 44 of their Counter claim and that the evidence of DW2 in paragraphs 39 and 40 of Exhibit D4 is nothing but hearsay since it was evidence of a statement made to him by a person who is not himself called as a witness, and therefore inadmissible by virtue of sections 37, 38 and 126 of the Evidence act, 2011.Adenugba v. Okelola (2008) All FWLR (Pt. 398) 292 @ 307-308.

 

 

DEFENDANT�S REPLY ON POINTS OF LAW TO THE CLAIMANT�S WRITTEN ADDRESS

FILED ON 18TH DAY OF JUNE, 2016 (filed on 25th June, 2019).

 

  • 63.  Counsel pointed out that although the Claimant had argued at paragraph 46 of his Claimant�s final written address that the claimant never received any invitation from the 2nd defendant, he yet stated that the Claimant by exhibit C20 responded to the 2nd defendant�s exhibit C6 in paragraph 47 of his final written address. That the law is trite that a party cannot approbate and reprobate, as parties must be consistent in their case. Osuji v. Ekeocha [2009] 16 NWL.R Part 1166 Page 81.

 

  1. Counsel maintained that the Claimant had also argued at paragraph 50 of his final written address that members of the committee who investigated the Claimant were also members of the 1st Defendant and further argued that the 1st and 2nd Defendants were both accusers and the Judge at the same time. In response, Counsel argued that the Claimant therefore cannot complain about the composition or recommendation of such committee as it deals with the civil rights and obligation of the Claimant rather the plaintiff can only complain on the mode of implementation of the committee�s recommendation by the 1st Defendant. Oluruntoba-Oju v. Abdul-Raheem &Ors [2009] 13 NWLR Part 1157 P. 83.

 

  • 65.  Counsel urged the Honourable Court is urged to grant the counter-claims of the 1st and 2nd Defendants by ordering the Claimant to refund the excess of what he has illegitimately earned. And that facts admitted need no further proof. FUT Minna &Ors v. Olutayo [2017] LPEI.R � 43827 (SC).

 

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. I find that the  issue formulated by the claimant succinctly address the contending arguments and  questions raised and these matter and shall be the issues for determination in this suit. And in resolving these issue the Defendant�s issues will be addressed accordingly.

 

  1. The claimant formulated 5 issues; –
    1. Whether the provisions of the law regarding disciplinary procedure and fair hearing were not breached by the 1st and 2nd Defendants in suspending and terminating the appointment of the Claimant before the expiration of his tenure;

 

  1. Having regard to the statute establishing the 1st Defendant, whether it does not possess the power to determine or fix the Claimant�s salary and allowances in line with the law;

 

  1. Considering the Claimant�s functions and the terms and conditions of his appointment, whether the Claimant is (not) entitled to the salary and allowances of the Chief Executive of Grade A Parastatal of the Federal Government.

 

  1. Whether the 1st and 2nd Defendants have a cause of action and/or right of action against the Claimant as to imbue this Honourable court with jurisdiction to entertain and/or grant declaratory reliefs in their Counter claim, or alternatively.

 

  1. Whether the 1st and 2nd Defendants� have proved their Counter claim against the Claimant.

 

  1. In the claimant�s issue 1 he is asking for a determination of the proprietaries of the defendant�s action in suspending and terminating his appointment having regard to the position of the law regarding discipline.

 

  1. In issues 2 and 3 the claimant contends that the 1st defendant has the power to fix his salary and that he, the Claimant, is entitled to the renumeration of a Chief Executive of a Grade A Government agency.

 

  1. Issues 4 and 5 are as to whether the 1st and 2nddefendants have a cause of action against the Claimant and if the defendants have proved the counterclaim.

 

  1. The claimant in this suit is seeking the following reliefs; –

i        A DECLARATION that the purported suspension and termination           of         Claimant�s appointment as Secretary of� the Nigerian National           Merit   Award before the expirations of his two�year tenure of�           office vide letters        dated the 4th February 2016 and the 7th April          2016 respectively is a  breach of the principles of natural justice,      the terms and conditions of the          appointment of the Claimant and       is therefore irregular, wrongful, illegal,           unconstitutional, null, void     and of no effect whatsoever;

 

ii.      AN ORDER setting aside the letters of suspension and termination            of         the Claimant�s appointment as Secretary of the Nigerian   National Merit             Award dated the 4th February 20 16 and the 7th         April 20 16 respectively;

 

iii.     AN ORDER directing the Defendants to pay the Claimant the sum           of          N43,645,.582.75 being the outstanding salary arrears and     allowances based        on the approved scale applicable to the chief executive officer/executive    secretary of a Grade A Parastatal of the Federal Government for his two-year      tenure of office.

 

iv.     A DECLARATION that pasting the query of 16th February 2016 by        the       1st and 2nd Defendants in a public place is wrongful, illegal    and      violated the extant public service rules.

 

v.      AN ORDER directing the 1st and 2nd Defendants to issue a normal          letter of apology to the Claimant for pasting the said query in a      public  place.

 

vi.     Damages in the sum of N10,000,000.00 (Ten Million Naira only)     for the             embarrassment caused the Claimant as a result of pasting  the said query in a       public place.

 

  1. In order to determine these reliefs in relation to the claimant�s employment/appointment it is pertinent and necessary to determine the nature of the Claimant�s appointment. Labour law recognizes three categories of appointment

 

  1. The Supreme Court in the case of LONGE Vs. FBN LTD [2010] LPELR 1793 SC held that ��. there are three categories of employment
  2. Purely Master and Servant relationship
  3. Servants who hold their office at the pleasure of the employer
  4. Employment with statutory flavour�.�

 

  1. A determination which of the above classifications the Claimants falls in to, is required and necessary in this suit at this time considering the nature of the Claimants reliefs.

 

  • 75.  The position of the law is that it is from the mode and manner of appointment and in determining whether the Respondent�s appointment is statutorily flavoured or not �..the courts have held that recourse should be had to the contents of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B. Also, in SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20.In the case of NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) It was held that “In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the Civil Service or Public Service Rules apply or are made relevant or incorporated. See the case of KWARA STATE POLYTECHNIC ILORIN V. SHITTU (2012) 41 WRN 26.

 

  1. Furthermore, it was held in UNION BANK OF NIGERIA PLC v. EMMANUEL ADEREWAJU SOARES – (2012) LPELR-8018(CA)“As I have stated above, as a general rule a court will not order specific performance of a contract of service. However, for a court to exercise its discretion to order specific performance or reinstatement, some special circumstances will have to be shown. Such special circumstances have been held to include where: 1. the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship; or 2. a special legal status as a tenure of public offices is attached to the contract of employment. See Olaniyan v. University of Lagos (1985) 2 NWLR (pt.9) 599; NNPC v. Idaniboye-Oba (supra); Shitta-Ba
    y v. Federal Public Service Commission (1981) 1 SC 40.” PerOKORO, J.C.A. (Pp.32-33, Paras. F-B).

 

  1. The court is at this stage to determine the nature of the Claimants appointment and this would determine whether the reliefs sought can be granted.

 

  1. The law requires that the court look at the letter of appointment to make this determination.

 

 

  1. Exhibit C3.

 

 

 

 

  • 80.  In law, where the term of service is pre-determined at the commencement of the contract the contract is categorized as a fixed term contract. See SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC). and the opening paragraph of Exhibit C3 clearly puts the Claimant under a fixed term employment of the statutory employment category, I find and hold.

 

  1. Now, with regard to Relief 1, the defendant�s issue 1: -� Whether the suspension and subsequent termination of the appointment of the Claimant by the Respondent from the Nigerian National Merit Awards was lawful and in accordance with his terms and conditions of service� which covers the same areas summarized by this court to �In the claimant�s issue 1 he is asking for a determination of the proprietaries of the defendant�s action in suspending and terminating his appointment having regard to the position of the law regarding discipline, and bearing in mind that Relief 1 is for a declaration that the purported suspension and termination of Claimant�s appointment as Secretary of� the Nigerian National Merit Award before the expirations of his two�year tenure of� office vide letters dated the 4th February 2016 and the 7th April 2016 respectively is a breach of the principles of natural justice, the terms and conditions of the appointment of the Claimant and is therefore irregular, wrongful, illegal, unconstitutional, null, void and of no effect whatsoever

 

  1. The position of the law as regards declaratory order is as was stated in the case of S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 Where it was held that �a party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146. Also in  DAVID OGUNLADE Vs. EZIEKIEL ADELEYE (2006) LPELR-7722(CA)The court of Appeal held that the differences between declaratory and executory judgments; – Whilst the latter declare the respective rights of the parties and then proceed to order the defendant to act in a particular way, and is therefore immediately enforceable; the former merely proclaims or declares the existence of a legal relationship and do not contain any order which may be enforced against the defendant vide OKOYA V. SANTILLI (1990) 2 NWR (PT. 131) 172 and Government of GONGOLA STATE V. TUKUR (1989) 4 NWLR (PT.117) 592.

 

  1. The Claimant grouse is with his suspension and subsequent by the Respondent and whether it was lawful and in accordance with his terms and conditions of service.

 

  1. The Supreme Court in ORGAN & ORS v. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LPELR-20942(SC). held that �The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred.

 

  1. Having established that the claimant appointment was governed by Exhibit C3, the Letter of employment, the enabling Act setting up the Defendant organization and the Public Service rules reserved in Exhibit C3,

For ease of reference I shall reproduce the relevant provision of the Defendants enabling law at this point.

 

  1. Establishment of the Governing Board
    1. There is hereby established a Governing Board of the Nigerian National Merit Award (in this Act referred to as �the Board�) which shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
    2. The Board shall consist of a chairman and not less than four or more than seven other members who shall be citizens of Nigeria to be appointed by the President and one of whom shall be the Secretary to the Government of the Federation or his representative.
    3. The persons appointed to be members of the Board shall be persons appearing to the President to be suitably qualified by reason of their professional, academic or administrative qualifications or by their attainments in any field of human endeavour.
    4. Subject to subsection (5) of this section, a person appointed as a member of the Board shall hold office for three years and shall be eligible for re-appointment for one further period of three years.
    5. The President may terminate the appointment of a member of the Board on grounds of misbehavior or inability to discharge the duties of his office by reason of physical or mental incapacity.
  2. Functions of the Board. The Board shall�
    1. conduct the making of the Award in accordance with this Act;
    2. institute measures designed to promote intellectual and academic excellence among Nigerians for this purpose and shall liaise with academic, professional and research institutions in Nigeria;
    3. manage the Nigerian National Merit Endowment Fund established by section 9 of this Act; and
    4. do such other things which in the opinion of the Board are necessary to ensure the efficient performance of its functions under this Act.
  3. Powers of the Board
    1. The Board may, if it considers it necessary for the due and proper execution of its functions under this Act, appoint a Secretary and such other staff as it thinks fit.
    2. The Board, in relation to any employee thereof shall have power�
      1. to exercise disciplinary control (including dismissal) over such employees; and
      2. with the prior approval of the Federal Civil Service Commission, to determine the remuneration and allowances (and in appropriate cases, pensions, gratuities and other terminal benefits) to be paid to such employees and such other conditions of service of the employees as it may think appropriate.

 

  1. The Board shall have power to acquire and hold property of any description.
  2. The Board may appoint one or more committees to carry out on behalf of the Board such functions as the Board may determine.
  3. A committee appointed under this section shall consist of the number of persons determined by the Board, of whom not more than one third shall be persons who are not members of the Board and a person other than a member of the Board shall hold office on the committee in accordance with the terms of the instrument by which he is appointed.
  4. A decision of a committee of the Board shall be of no effect until it is confirmed by the Board.

 

  1. With regard to Suspension, the Court of Appeal in UCTH Vs. JULIET KOKO BASSEY 2008 LPELR 8553 CA: had cause to ” interpret the word “suspension” as used in section 4 of the Federal Government Public Service Rules, 2006 Section 4, Rule 030406 deals with “Suspension”. It provides as follows:
    “Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in public interest that he/she should forthwith be prohibited from carrying out his/her duties, pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument.
    From the above, it is clear that the suspension of the respondent must continue until the investigation is concluded and the matter finally disposed of. See also the book “Public Servant and the Law” by Akin Emiola; page 89, paragraph 2. In Longe vs. FBN Plc. (2006) 3 NWLR (Pt. 967) 228, Salami, JCA, had this to say:
    “The word “suspension” means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period, or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline.�
    The suspension of an employee is not an unusual procedure taken in order to facilitate investigation of an alleged impropriety.” Per OMOKRI, J.C.A. (Pp.30-31, Paras.C-D)

 

  1. The position of Labour Law is that while it is not in doubt that an employer has an unfettered right to suspend, but the scope of that right is contingent on the contract of service and/or conditions of service making the necessary provisions in that regard.

 

  1. From the above, Section 4 of the NNMA Act 2004 LFN the Board is empowered to appoint a secretary,   as well as other employees and by 4(b) ) with the prior approval of the Federal Civil Service Commission, to determine conditions of service of the employees as it may think appropriate.
  2. but more particularly Section 4(a) of the NNMA Act 2004 LFN. Empowers the Board to exercise disciplinary control over such employees; which means the defendants are in law empowered to suspend the Claimant as the law clearly gives the Board the disciplinary control over the Secretary they appoint. That being the case that part of the Claimants relief  seeking a declaration that the Claimant�s suspension is irregular, wrongful, illegal, unconstitutional, null, void and of no effect whatsoever and an order that the letter suspension be set aside fails and cannot be granted, that part of (Relief (i) and (ii)fail and is dismissed.

 

  1. With regards to termination; – the Claimant frontloaded Exhibit C7 letter of Termination

 

 

 

 

 

  1. It was held in KREST INVESTMENT LTD v. WEST AFRICAN PORTLAND CEMENT (2016) LPELR-42254(CA) thatin determining whether the termination of a contract was wrongful or not, the reasons for the termination must be read together with the terms and conditions of the contract. See: RAJI v. O.A.U. (2014″) LPELR-22088(CA) 37, and WARNER & WARNER INT. v. F.H.A. [1993] NWLR (Pt. 297) 55.” Per ABUBAKAR, J.C.A. (P. 50, Paras. C-D)

 

  1. the position of the law with regard to the nature of the claimants appointment is as was stated in the case of Olatunbosun v. NISER Council (1988) NWLR (Pt.80) 25the Apex Court held that “�.., in public employment where the employee is qualified by appointment to a permanent and pensionable position, and has actually satisfied the conditions, there should in the interest of justice, be a presumption that the employment cannot be terminated by mere notice, but should be terminated only for misconduct or other specified reasons”.

 

  1. The employment is ad culpam or quamdiu se bene gesserit. It does not therefore matter whether the Appellant’s services were terminated or whether the Appellant was dismissed, he has to be terminated or dismissed for cause shown.” Per Oputa, J.S.C (P. 44, paras. C-G)

 

  1. TSEMWAN & ORS v. GOVERNOR OF PLATEAU STATE & ANOR(2012) LPELR-7922(CA)“An employer which is clothed with statutory flavor as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect . See the case of IBAMA V SPDC (NIG) LTD 2005 17 NWLR Pt. 954 AT 364. Also the case of UBN Ltd. V Ogboh (1995) 2 NWLR (Pr 380) 647.”PER EKPE, J.C.A(P.27, Paras. E-F)

 

 

  1. The laid down procedure to be followed in disciplining the claimant has been expounded in case law and Furthermore the Court of Appeal had in YEMISI v. FIRS (2012) LPELR-7964(CA) 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.

 

  1. (d) At the appropriate point in the investigation, the officer may be suspended in accordance with Rule 04405.

 

  1. Rule 04306 provides inter alia:

 

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.”

 

  1. 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.

 

  1. from the foregoing I find that exhibit C7 is evolved out of the context of the nature of the claimant appointment. Having found that his employment was tinged with statutory flavour it can only be determined by effluxion of time as it is a fixed contract or for misconduct. Notwithstanding the Exhibit D I find that the procedure culminating in Exhibit C7 is foreign to the claimants employment and is this liable to be declared irregular, wrongful, illegal, null, void and of no effect whatsoever and that the letterof Termination is required to be   set aside. What that means is that in respect Termination that part of (Relief (i) and (ii) have merit and succeeds.

 

  1. Now with regard to the Claimants  issues 2 and 3 wherein the claimant contends that the 1st defendant has the power to fix his salary and that he, the Claimant, is entitled to the renumeration of a Chief Executive of a Grade A Government agency.

 

  1. The position of the law is that “By virtue of Sections 133 and 134 of the Evidence Act, in civil cases the burden of proof is on the party who asserts a fact to prove same for he who asserts must prove. The standard of proof required is on the preponderance of evidence and balance of probabilities. A party in a civil case must prove his/its case on credible evidence of his/its witnesses and is not at liberty in law to make a case or rely on the weakness of the defendant’s case in order to succeed. See DAODU VS. NNPC (1998) 2 NWLR (PT. 538) 355 AND AGBI VS. OGBEH (2006) 11 NWLR (PT. 990) 65.” MBODAN v. DABAI (2019) [LPELR] Per ABIRIYI, J.C.A. (PPp. 12-13, Paras. E-A)

 

  1. the claimant had argued that the Defendants had the power to appoint him and fix his salary, this position is born out by Section 4 of the defendants enabling Act (1) The Board may, if it considers it necessary for the due and proper execution of its functions under this Act, appoint a Secretary and such other staff as it thinks fit.

(2) The Board, in relation to any employee thereof shall have power�

  1. to exercise disciplinary control (including dismissal) over such employees; and

 

  1. with the prior approval of the Federal Civil Service Commission, to determine the remuneration and allowances (and in appropriate cases, pensions, gratuities and other terminal benefits) to be paid to such employees and such other conditions of service of the employees as it may think appropriate.
  2. which means that the defendants are legally authorized to appoint the claimant Secretary and with the approval of the Federal Civil Service Commission determine his salary as the Defendants think appropriate.  I resolve this part of issue 2 in favour of the Claimant.

As to the issue of whether the claimant is not entitled to the salary of a Category A parastatal the Claimant has not put before the court any evidence of the salary he was paid or any circular listing him as a Chief executive, this issue is resolved against the Claimant as it is not substantiated to the satisfaction of this court.

 

  1. Issues (iv) and (v) related to the propriety and efficacy of the defendants Counter claim. I shall treat these issues with the defendant counter claim.

Reliefs (iv) (v) and (vi) relates to defamation, Now the claimant has not put forward any particulars of defamation neither has he presented any evidence of actual publication to enable the court make a proper determination of same. In addition, the Claimant has not told the court how he arrived at 100 million Naira damages, these reliefs not been substantiated thereby fail.

 

  1. The Defendant counter claim as follows; –

 

  1. A declaration that the various acts of the claimant in awarding contracts without complying with the due process of the law as prescribed by the Public Procurement act is a breach of his fiduciary duty, the terms and condition of his appointment and due process of the law.

 

  1. A declaration that the claimant�s refusal to appear and/or represent himself before the committee duly constituted by his employers to investigate complaints levied against him amounts to misconduct.

 

  1. A declaration that the various acts of the claimant flouting the directive of the 1st defendant, spending beyond approved budget without prior approval; awarding contracts without following the due process of law as laid out in the Public Prosecution Act, reshuffling the NNMA secretariat without the prior consent of the 1st defendant, presenting the budget of the NNMA without authorization flouting the directive of the 1st defendant inter alia amount to acts of insubordination.

 

  1. A declaration that the act of the claimant withholding the various correspondences he had with the National Salaries, Incomes and Wages Commission from the 1st defendant in the determination of his salary scale amounts to suppression of record.

 

  1. A declaration that the claimant�s salary scale is as placed by the salaries and wages commission, the body empowered by the Act of the National Assembly to fix salaries scale of all workers in the public sector.

 

  1. A declaration that the act of the claimant withholding the letter dated 301 September, 2015 from the 1st defendant and making the l defendant peg the claimant�s salary at par with the salary scale of the professor amounts to suppression of records and a fiduciary breach of trust.

 

  1. An order directing the claimant to refund to the 1st defendant the sum of N1,291,415.45k being the difference in the sum he was erroneously paid under the scale of a professor and the scale of salary of a GL 17 as proposed by the National Salaries, Income and Wages Commission from the 5th day of May, 2014 to the 5th day of April, 2016 when his appointment was terminated.

OR

An order directing the claimant to refund to the 1st                                defendant the sum of N866,866.39k being the      difference                    in the sum he was erroneously paid under the scale of a                                   professor and the scale of salary of a GL 17 as proposed by the                         National  Salaries, Income and Wages Commission had he                 completed his tenure as secretary to the 1st defendant 5th day of                 May, 2014 to the 4th day of  May, 2016.

 

  1. An order directing the claimant to pay to the 1st defendant, the sum of N1,000,000 being the cost of prosecution of this suit instituted by the claimant.

 

ix)        An order directing the claimant to return to the Nigerian                                       National Merit Award, a set of the Laws of the Federation,                                     `           2010 which was assigned to the office of the secretary of                                             the Nigerian National Merit Award but taken away by the                                             claimant as same is a public property.

 

x)         General damages in the sum of N20,000,000 (Twenty                                           Million Naira).

 

  1. Now the Defendants filed their Defence and counter claim on the 7th February 2017, the defendants process raises the question begging a response as to whether the court can properly consider this counter claim and whether or not this counter claim is not caught but the Public Officer�s Protection Act. LFN 2004, bearing in mind the position of the law with regard the Doctrine of Reciprocity and the Supreme Court pronouncement in AIYETAN Vs. NIGERIAN INSTITUTE OF OIL PALM RESEARCH [1987]LPELR 275 SC.

 

  1. the law requires that I hear from counsel before resolving this issue

 

  1. The Claimant filed his additional written address on the 21st October 2019 while the defendants Counsel file their written address on the 25th October 2019.

 

  1. To the claimant the 1st and 2nd defendants counterclaim was statute barred and liable to be dismissed in its entirety. Whereas to the 1stand 2nd Defendant�s Counsel, they had proved several infractions committed by the Claimant which place him outside the ambit of the Public Officers Protection Act 2004 LFN. Arguing further that Section 2A Public Officers Protection Act 2004 LFN could not avail an officer who was involved in fraud and continued arguing further that as at the time the defendant presented their counter claim the Claimant was no longer in service and hence cannot claim the protection.

 

  1. Let me start by opining that the issue before the court is whether the 1st and 2nd defendant are not caught up in the provision of Section 2A Public Officers Protection Act 20014 LFN, in respect to their counterclaim.

 

  1. The statute in question is section 2(a) of the Public Officers Protection Act 2004, which provides as follows �

 

  1. 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.

 

  1. (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:

 

  1. 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. The issue being whether the claimants are not entitled to the protection of this act.

 

  1. To whom does the POPA apply or is the Public Officer Protection act applicable to this suit.

 

  1. 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

 

(b) the public service of a state or federal government�

 

(c) the service of a body whether corporate or unincorporated established under a Federal or State Law.

 

  1. 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.�

 

  1. In FGN Vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act not only refers to natural persons sued in their personal names but it extents to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of   ALHAJI ALIYU IBRAHIM Vs.JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC&19 ORS Vs. FGN & 3ORS[2012]17 NWLR (Pt.1329) p.309 at 338.

 

  1. From the foregoing I find that the claimants are entitled to the protection afforded by the Public Officers Protection Law.

 

  1. Now in AIYETAN Vs. NIGERIAN INSTITUTE OF OIL PALM RESEARCH [1987]LPELR 275 SC, the dictum of Nnamani JSC is, I find is most instructive. In that case the plaintiff had instituted an action for wrongful dismissal and his employers counter claimed for N12, being money the plaintiff was alleged to have taken for his own. The Supreme Court upheld the trial courts dismissal of the   counterclaim as being statute barred, thereby overturning the decision of the Court of Appeal that a former public office, former employer cannot raise Section S2A Public Officers Protection Act against the Federal Government or any of its agencies as employer. The Supreme Court Nnamani A, JSC had this to say �I see nothing that would necessitate the exclusion of the Federal Government or any of its agencies from the application of the Act.

 

  1. Bearing the above in mind, I find the arguments of the defendants; as to infractions, allegations of fraud and the fact that the claimant had left office have no bearing on the applicability of this statute. I find and hold. The 1st and 2nd defendant�s arguments as stated above are hereby discountenanced in their entirety, I find that the Claimant is entitled to raise the Act.

 

  1. In the instant case the claimant left office in January 2016 and was suspended for the issues for which the defendant seek to counterclaim in   2016. the counterclaimants instituted this suit (filed their counter claim on the 7th February 2017 a total of   months after the cause of action ceased. On this point, I find that the Defendant Counter claimants counter claim is statute barred and is consequently dismissed.

 

  1. For avoidance of doubt the claimant case succeeds but only this far:

 

i.       It is hereby declared that the purported # termination of Claimant�s appointment as Secretary of� the Nigerian       National Merit Award before the expirations of his two year tenure of� office vide letter dated the 7th April 2016 is a breach of the principles of the terms and conditions of the appointment of the Claimant and is therefore irregular, wrongful, illegal, null, void and of no          effect whatsoever;

 

ii.      By order of this court the letter of termination of the Claimant�s appointment as Secretary of the Nigerian             National Merit Award dated the 7th April 20 16 is hereby   set aside

 

iii.     The Defendants shall to pay the Claimant all such salaries and allowances due to the claimant from the date last paid until the end of his contract 7th April 2016,

 

  1. Cost of this suit is put at N300,000.00 payable within 30 days thereafter    10% interest shall attach.

 

  1. This is the Court�s judgement and it is hereby entered.

 

 

 

Hon Justice E. N. Agbakoba

Presiding Judge

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