IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 19th June, 2017 SUIT NO.:NICN/EN/113/2013
BETWEEN:
SGT ALOYSIUS AKWUSIKE===========CLAIMANT
AND
- COMMISSIONER OF POLICE,
ENUGU STATE
- INSPECTOR GENERAL OF
POLICE=====================DEFENDANTS
REPRESENTATION:
Dr GodstimeOkafor Esq. with C.O. Ogo Esq. for the Claimant.
Emmanuel Ugwu Esq. for the Defendants.
JUDGMENT
On the 9thday of May, 2013 the Claimant by a Writ of Summonsdated 26th day of February, 2013 commenced this action. In his further Amended Statement of Claim he prays for the following reliefs against the defendants:
- A DECLARATION that the purported Dismissal of the Claimant by the Defendant is invalid.
- A DECLARATION that the refusal of the Defendants to recall the Claimant to duty is unconscionable and done mala fidei(sic).
- A DECLARATION that the provisions of Section 384(6) in Part XVI of the Nigeria Police Regulations Cap P19, Police Act Subsidiary Legislation which deprives the Claimant of his right to be defended by a legal practitioner of his choice in an Orderly room proceedings is inconsistent with the provisions of Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria and to that extent of its inconsistent(sic) is null, void and of no effect.
- A DECLARATION that the Nigeria Police Defaulter’s Charge Sheet, Orderly room proceedings, judgment, findings and recommended punishment against the Claimant by the Defendant amount to a nullity in view of Section 384(6) of the Nigeria Police Regulations Cap P19 Police Act Subsidiary Legislation.
- AN ORDER compelling the Defendants to recall and re-instate the Claimant to duty.
- AN ORDER compelling the Defendants to pay the Claimant arrears of his salary from October 2008 until the determination of this suit.
- IN THE ALTERNATIVE to relief No. 4 above:
(a) AN ORDER compelling the Defendants to formally retire the Claimant from the Nigeria Police Force from the date of determination of this suit.
(b) AN ORDER compelling the Defendants to pay the Claimant his gratuity as applicable to his colleagues in the Force and from the determination of this suit.
(c) AN ORDER compelling the Defendants to pay the Claimant his pension as and when due from the date of the determination of this suit.
- N50,000,000 (Fifty Million Naira) only as General, Aggravated, and Exemplary damages.
The Writ was accompanied with the Statement of Claim, list of witnesses, written statement on oath of witnesses, list of documents and copies of documents to be relied upon at trial. Filed along with his Amended Claim on 16th October, 2014 is an additional written statement on oath.
Upon being served with the originating processes of the Claimant, the defendants filed a memorandum of appearance on 19th March, 2014 and further filed a Statement of Defence dated 25th March, 2014 on the same day. The Statement of Defence was accompanied with a statement on oath of their witness as well as copies of documents to be relied upon at trial. Thereafter the Claimant filed a reply to the Statement of Defence on 16th October, 2014 along with the additional Statement on oath of witness.
The case proceeded to trial. The claimant gave evidence on his own behalf as CW1 and tendered Exhibits C1, C2, C3a, C3b, C4 and C5. Then with leave of court the Defendants’ counsel tendered from the Bar Exhibits C6, C7, C8 and C9. The Defendants did not call any witness, having been foreclosed following their inability to come to court at the various adjournments granted. Parties were ordered to file their final written addresses. The learned Claimant’s counsel filed his final written address dated 25th November, 2016 on 1st December, 2016. In response, the learned Defendants’ counsel filed his final written address dated 28th day of March, 2017 on 29th March, 2017. Thereafter, the learned Claimant’s counsel filed his reply on points of law dated 30th day of March, 2017 on 12th April, 2017. Parties adopted their respective final written addresses on 24th day of April, 2017.
In his final written address the learned Claimant’s counsel formulated and argued the following issues for the court’s determination:
- Whether the Claimant’s purported dismissal from service is valid?
- Whether the Claimant’s fundamental right to fair hearing was infringed upon?
- Whether the Claimant is entitled to his claims?
On the first issue, the learned Claimant’s counsel submitted that the purported dismissal was not valid. He referred to the provisions of Section 385 of the Nigeria Police Regulations Cap 19, Police Act Subsidiary Legislation which provides thus:
When a delegated officer makes any award of any punishment to a defaulter, he shall at the time of the award serve a written notice of such award on the defaulter…(underlining provided by counsel for emphasis).
Learned counsel submitted that no notice of any sort of punishment whatsoever was served on the Claimant till date. That what the Provost that presided over the Orderly room trial did was a mere recommendation subject to confirmation and/or approval as seen in annexure B to the Defendants’ Statement of Defence. No any notice of confirmation or approval of any punishment was served on the Claimant.
He further stated that Section 386(2) of the Nigeria Police Regulation, supra, provides thus:
Where the punishment awarded to a junior officer in respect of any offence against discipline is dismissal, the dismissal shall have effect on the date when the award of that punishment is brought to his notice, or (if it is earlier) the date on which notice of that award is served on him by post at his last known address and is thereafter presumed to have been duly delivered. (Underlining provided by counsel for emphasis).
To the learned counsel this provision shows that the punishment (the dismissal of the Claimant) only takes effect when such is served on the officer involved. It therefore follows that assuming without conceding that the recommendation of the orderly room trial was approved, it is not yet binding on the Claimant as it has not been served on him. It therefore follows that the Claimant by law is still in active service until whenever the order of dismissal is brought to his notice. He further referred to sections 273(3) and 370 of the Police Subsidiary legislation and submitted that the Claimant is a junior officer. Thus being a junior officer, the claimant is entitled to the benefit of section 386(2) of the Police Regulations, supra, which is to the effect that when a junior officer is dismissed from the force, that the dismissal will take effect on the date such dismissal is brought to his notice. He added that at the time of writing his address, the Claimant has not been served with any notice whatsoever of the purported dismissal from the force which leads to the irresistible conclusion that the Claimant is still a bona fide member of the Police Force and he urged the court to so hold.
The learned counsel referred to the case of Eze vs Spring Bank Plc (2011)-2892 (SC) where the Court while holding on the determining factor whether a dismissal is correct or wrong held thus:
Now to determine whether the dismissal of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is departure from the prescribed procedure or a violation of the elementary rules of natural justice, then the dismissal is unlawful.
He continued that the purported punishment meted out to the Claimant has not been published in line with the provisions of Section 387 of the Police Subsidiary Legislation, supra, which provides thus:
It shall be the responsibility of the delegated officer awarding a punishment in respect of an offence against discipline by a junior officer to ensure that the particulars of the punishment awarded are published in force orders.
Furthermore, the letter by the 1st Defendant, Exhibit C9, informing the DPO of the Claimant that the Claimant has been dismissed following the outcome of the orderly room trial and that the publication would be made in Enugu State Order, was never carried out. This is because the publication was never done. The claimant’s ID and other accoutrements were to be retrieved from him but it was never done, hence they were tendered in court as Exhibits C6 to C11. He added that the failure to render the ID card and accoutrements is an offence under Section 402 of the Police Subsidiary Legislation.
To the learned counsel therefore, this all go to show that there is grave error committed by the Defendants in the process of the purported dismissal of the Claimant, leaving room for only one conclusion, i.e., the Claimant has been and still is in active service since the laid down procedure for dismissing him has not been followed. He therefore urged the court to hold that the purported dismissal is null and void and of no effect in view of the fact that the mandatory requirements of the law were not complied with.
On the second issue, which is whether the Claimant’s right to fair hearing was infringed upon, learned claimant’s counsel answered in the affirmative. He submitted that a cursory look at the record of proceedings at the orderly room trial, the court would find out that the claimant was not allowed to be represented by any counsel of his choice, call any witnesses in defence of the charge against him, his evidence was not taken on oath and he was not even cross examined at the end of his testimony. He added that the proceedings of the orderly room trial can best be described thus: “that the Claimant was already presumed guilty and evidence was just called for to nail him the Claimant fir it”. He submitted that this is contrary to sections 36(5) and 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. He reproduced the provisions of Section 36(5) as follows:
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Also, that Section 36(6)(c) of the 1999 Constitution reads:
Every person who is charged with a criminal offence shall be entitled to:
- c) be given adequate time and facilities for the preparation of his defence.
That also, the provisions of S.36(6) involves affording the accused person the opportunity to call any witness(s) of his choice in the defence of the charge against him. That this opportunity was not afforded the Claimant, for immediately the Claimant finished giving evidence which was not on oath, the Provost delivered its judgment indicting the Claimant and thereby infringing on the Claimant’s fundamental right to fair hearing.
That secondly, counsel submitted that Section 384(6) in Part XVI of the Nigeria Police Regulations Cap P19 Police Act Subsidiary Legislation which deprives the Claimant his right to be defended by a legal practitioner of his choice in an orderly room trial is inconsistent with the provisions of Section 36(6)(c) of 1999 Constitution and to that extent of its inconsistency null and void and of no effect. That Section 36(6)(c) of the 1999 Constitution provides thus:
Every person who is charged with criminal offence shall be entitled to
1) Defend himself in person or by legal practitioners of his own choice.
That in conformity with the above constitutional provision, it is the Claimant’s fundamental right to call a legal representative of his choice to defend the charge levelled against him but this right was trampled upon by the defendants. That by Section 36(1) of the 1999 Constitution the right to fair hearing has been guaranteed as follows:
In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunalestablished by law and constituted in such manner as to secure its independence and impartiality. (Underlining provided by counsel for emphasis).
This section shows that the right to fair hearing also applies to tribunals of which an orderly room trial is one of it. That it is trite that the Constitution is the bedrock, supreme and fundamental law of any sovereign entity (country) and all other laws derive their legitimacy and existence from it. Any such laws which violate any of the provisions of the Constitution loses its legitimacy and thus null and void and of no effect. He then referred to Section 1(1) and (3) of the 1999 Constitution which provides for its supremacy. He then submitted that Section 384(6) of Part XVI of the Nigeria Police Regulations violates the fundamental right of the claimant and he urged the court to so hold. He further submitted that the said Section 384(6) of the Police Regulations is inconsistent with the 1999 Constitution and should therefore be declared null and void in the light of Section 1(3) of the 1999 Constitution.
On the 3rd issue, whether the clamant is entitled to his reliefs, learned counsel answered in the affirmative. He stated that it is trite that where there right there a remedy. This is in tandem with the motto of the Bar which states: “Ubi jus ibi remedium”. That the claimant’s dismissal which was pursuant to the orderly room proceeding violates the provisions of the Constitution and therefore invalid. Added to this is the non-compliance with the mandatory requirements of the Police Regulations as it relates to dismissal of a junior officer. He submitted that with the successful proof of his case, the claimant is entitled to reinstatement and payment of his salaries and all entitlements. He referred to Omidiora vs FCSC (2007) Vol. 44 WEN 53 at 73 lines 35-45 (CA).
That in the case ofA.O.Borishade vs National Bank of Nigeria (2005) LPELR-11968 (CA)the court while deciding on what a plaintiff must prove where he alleges unlawful dismissal of employment held thus:
It is an elementary principle of the rules of litigation that the plaintiff in the court below who alleges unlawful dismissal of his employment must prove that the dismissal was unlawful.
Learned counsel stated that the claimant has shown in the 1st issue raised by it that the purported dismissal was not done in substantial compliance with the provisions of the Police Subsidiary legislation which is the law governing the activities of the Police or engagement or disengagement of Police Officers. That in the case of Saliman vs Kwara State Polytechnic & Ors (2005) LPELR-5897 CA while deciding on the proper order to make when an employee in employment with statutory flavour is unlawfully dismissed, held that:
Having held that the appellant’s dismissal was null, void and unconstitutional and taking into consideration the nature of the employment i.e. the statutory flavour, the necessary order to make is that of reinstatement.
He further referred to New Nigeria Newspapers Ltd vs Atoyebi (2013) LPELR-21489 CA. he then urged the court to order reinstatement.
On his part the learned defendants’ counsel formulated and argued the following issues:
- Whether the Claimant’s dismissal from service is not valid?
- Whether the Claimant’s right to fair hearing was infringed upon and if it did whether it vitiates the proceeding?
Arguing issue one, learned defence counsel submitted that the dismissal of the claimant was valid. He alluded that the claimant duly admitted in his paragraphs 6 and 7 of his additional statement on oath that he was found guilty and informed of his right of appeal and he stated the reason why he did not exercise his right of appeal. He submitted further that the dismissal of the claimant which was duly communicated to him cannot be impugned on groundless technicality that he was not communicated in writing. He added that section 385 of the Police Regulations did not provide that the failure by the delegated officer to inform the defaulter in writing vitiates the punishments awarded. That Section 386 of the Police Regulations provides that the punishment for the defaulters takes effect from the date it was awarded and not when he was given a copy of it.
That having been informed of his punishment, the Claimant had a duty under section 402 of the Nigeria Police Regulations to submit his accoutrements to the Superior Officer and his failure to do so as he did makes him liable to punishment of imprisonment not exceeding six months.
That again by paragraph 6 of the Claimant’s Statement on oath and in accordance with Section 386(2) of the Police Regulations, the Claimant admitted that he was still preparing his appeal when he was arraigned and remanded in prison. The operative word in subsection 2 above is brought to his notice and the fact that the claimant was preparing his appeal presupposes that the punishment was brought to his notice, otherwise he would not be preparing for an appeal against a decision not brought to his notice.
Learned counsel contended further that the Claimant’s argument on the technicality of service or notification of punishment on the claimant does not go to the substance and are merely conditions subsequent to the punishment and not precedent to it. Hence, technicalities by their nature do not defeat the course of justice. That for the claimant to succeed, he has to plead and establish in what ways his terms of employment with the Nigeria Police Force was breached to establish that he was wrongly dismissed, else if he wants to insist by his argument in his final address that he is yet to be dismissed, then this court cannot indulge in any academic exercise of recalling to service a claimant who is by his argument is still in service or compelling a defendant who is still benefitting from the services of a serving officer to retire him. That the Supreme Court in Okomu Oil Palm Ltd vs Iserhierhen (2001) 6 NWLR (Pt. 710) 660; (2001) LPELR-2471 p.1 at 8, Uwaifo JSC, stated:
It has been firmly established that when an employee complains that his employment has been wrongly terminated he has the onus to place before the court terms of the contract of employment and to prove in what manner the said terms were breached by the employer, it is not the duty of the employer as defendant in an action brought by the employee to prove any of those facts.
That in the instant case, the Claimant has not told the court that any officer who commits the act he committed should not be dismissed, he is only challenging the constitutionality and procedure adopted in the police orderly room trial that saw to his dismissal. In the present scenario, the best that can happen to the claimant is to order for a retrial and not that cocking a riffle inside the armory room, aiming the riffle to the entrance door, pressing the trigger not minding who was coming is a conduct befitting of a trained police officer and explaining it out as accidental discharge does not deserve a punishment such as dismissal. That Pats Acholonu JCA in Uzomba vs State (2005) 1 NCC 406 at 412 had this to say with regards to “Accidental Discharge”:
The worn out hackneyed phrase “accidental discharge” has become so common in our criminal jurisprudence that many a policeman has been acquitted and discharged on the ruse of accidental discharge. It would appear that it is only in this country that the citizen experience accidental discharge. (Underlining supplied by counsel for emphasis.)
He continued that the Police Force knows better that there is no such thing as accidental discharge. They know that there is no time a gun can cock itself and that there is no time a gun can depress its own trigger, that it takes a human being to do both, such as the Claimant admitted in his paragraph 3(f) of his statement on oath and paragraph 5 of his Amended Statement of Claim. That doing both causes a natural consequence which is a shot firing therefrom.
Learned counsel stated further that another rule is that checking a blocked chamber is done in the open air while aiming the skies and not at the entrance door of any building, as the Claimant did hence, the Nigeria Police said that persons such as the claimant are dreadful hazard to the unsuspecting members of the public and great liability to the Police Force. He then urged the court not to allow the claimant back into the Force and he should not also be rewarded for being reckless and taking life with such lethal weapon as riffle by any award of damages, gratuity or pension.
That a person who unlawfully causes death of another is usually sentenced to death. Good enough, the Attorney-General of Enugu State set him free, he should not also be rewarded with money by way of gratuity, salary or pension as a commendation for a job well done because his job was not well done.
On the second issue, which is whether the claimant’s right to fair hearing was infringed and if so whether such vitiates the proceeding, learned counsel submitted that the orderly room trial did not deny the claimant the right to fair hearing. That the record of proceedings of the orderly room trial shows the evidence of the claimant, witnesses and his cross examination. The facts from then till now remains undisputed that and there is nothing else the claimant could have said that was not said by him. That it is to be noted that the trial was not for the criminal offence of murder but for disobeying the rules on handling a firearm in Force Order 237 which the Claimant knows by heart as a Police Officer.
That orderly room trial was not by a judicial tribunal or law court, but by domestic panel set up to try the disciplinary offence against the claimant. That the Supreme Court in Baba vs NCATC (1991) 5 NWLR (Pt. 192) 390 held that the failure to provide for an opportunity for cross examination by a domestic tribunal was not fatal. Counsel continued that the Claimant made a heavy weather of his denial of the right to call a lawyer under Section 36(6) of the 1999 Constitution of Nigeria, he however did not remember that he was not tried for a criminal offence in the orderly room trail but for a disciplinary offence. That the section of the Police Regulations that denies him a right to be defended by a lawyer forms part of his contract of employment and he subscribed to the oath as a Police Officer; the rule is volenti non fit injuria. That in Bakare vs LSCS (1992) 8 NWLR (Pt. 262) 641 at 700, NnamekaAgu JSC, said:
The Court in the exercise of their power of judicial review are constantly called upon to scrutinize the validity of the decisions and transactions. In the exercise of the jurisdiction, the court can declare tem invalid or ultra vires and void not because they are unconstitutional in terms of section 33 of the Constitution (now section 36 of the 1999 Constitution) but because they offend against the rule of natural justice of audi alteram partem or nemo judex in causa sua…the great divide is that section 33 deals with judicial bodies and does not necessarily extend to all bodies not judicial, but the same deciding on rights and obligations.
Learned counsel then stated that hence the trial of the claimant did not breach any rule of natural justice of audi alteram partem because he was present at his trial and made his defence as appropriate, the rule of not being a judge in his own cause was not violated in any way. He submitted that the provision of Section 36 of the 1999 Constitution cannot be used as a basis for setting aside the orderly room trial of the Claimant.
He finally urged the court to refuse the prayers of the claimant as not being meritorious.
The learned counsel for claimant’s reply on points of law is basically a re-argument of his submissions in the final written address. It is therefore not a reply on points of law and therefore is hereby discountenanced. See Ecobank (Nig) Ltd v. Anchorage Leisures ltd& Ors (2016) LPELR-40220(CA)where the Court of Appeal, Per Oseji, JCA, at p. 42 paras B-E, reiterated the point as follows:
By law where a reply on points of law translates to re-arguing a party’s written address or brief of argument, it will be discountenanced by the Court. That was the stance of the Lower Court and the holding is within the ambit of the law. See OKPALA VS IBEME (1989) 2 NWLR (PT 102) 208; FRN VS IWEKA (2011) LPELR (9350) CA; OPENE VS NJC (2011) LPELR (4795) CA.In UBA PLC VS UBOKOLO (2009) LPELR (8923) CA this Court held that a reply brief is not meant to improve the quality of the argument in the Appellant’s brief. In the same way, a reply on point of law is not meant to improve on the quality of a written address.
I have carefully considered the processes filed, the evidence led, as well as the arguments and submissions of counsel. The issues for determination are:
- Whether the Claimant’s purported dismissal from service is valid?
- Whether the Claimant’s fundamental right to fair hearing was infringed upon and if it did whether it vitiated the proceedings?
- Whether the Claimant is entitled to his claims?
Let me consider the issues by first of all stating the facts of the case briefly. The Claimant joined the Nigeria Police in 1988 and had Force No. 21247. He averred that he discharged his duties with diligence and in utmost good faith until the 13th day of September, 2008 when an unfortunate event brought his career to an abrupt end. That as at that 13th September, 2008 he was attached to First Bank of Nigeria Plc Obollo Afor in Udenu Local Government Area of Enugu State. On the morning of the said 13th September, 2008, the Claimant went to the Armoury at Obollo Afor Police Station to pick up his armour for the day’s duty. The Armourer handed the Claimant a LAR Riffle and 10 rounds of ammunition.
That however, unknown to the Claimant and the Armourer a bullet was still lodged in the riffle. So, when the Claimant tried to head his bullet into the chamber of the riffle, it could not go in because the chamber seemed to be blocked. The Claimant then unloaded his own ammunition, corked the riffle and as soon as his finger touched the trigger, the riffle exploded and a bullet from the riffle pierced the iron door of the Armoury hitting one Sgt. Joseph Ejike who was about to enter the Armoury. Sgt. Ejike fell down and died instantly from the gunshot wounds. The claimant was now disarmed and detained for ten months and in 2009 he was summoned to appear before the then Provost for an Orderly Room Trial. The Provost who presided over the trial found the Claimant guilty and informed him that he had 14 days within which to appeal against the verdict to the Commissioner of Police. However, that, before the expiration of 1 week, the Claimant was arraigned before an Obollo-Afor Magistrate Court on a 1 count charge of Murder. The Magistrate remanded the Claimant in Prison custody and sent the case file to the Office of the Attorney-General for his opinion and possible prosecution. The Attorney-General within two weeks gave his opinion on the case in which the decision not to prosecute the Claimant for insufficient evidence was arrived at. The murder charge at the Magistrate Court, Obollo-Afor was dropped. The family of late Sgt. Joseph Ejike equally wrote the 1st defendant pleading that the Claimant be reinstated as they wer
