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National Industrial Court

Stephen O. Okereke & ORS VS Nigerian Ports Authority

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 4TH APRIL 2019   

                                               

SUIT NO: NICN/LA/274/2014

                       

BETWEEN                            

  1. Stephen O. Okereke
  2. Nnana S. Okereke                                                                                                    (Representing the Estate of Christopher Okereke (Deceased)

Claimants

AND

Nigerian Ports Authority                                                                                         REPRESENTATION

H.O Ogungbamila with O. Abraham-Aderibigbe  for the Claimants

U.I Obi with C.A. Olaifa for the Defendant

Defendant

JUDGMENT

  1. Introduction & Claims

This suit was initially instituted at the Federal High Court as Suit No. FHC/L/CS/4714/2008 – Christopher Okereke v. Nigerian Ports Authority. The Defendant challenged the jurisdiction of the Federal High Court and lost. It subsequently appealed to the Court of Appeal in Appeal No. CA/L/432/2010 – Nigerian Ports Authority v. Christopher Okereke. While that      appeal by the Defendant was pending, the Claimant, (who is said to be deceased and now represented by his son and brother), purportedly applied before the Federal High Court to transfer the suit to this Court following the statutory transfer of all labor-related matters to the National Industrial Court. The Federal High Court, per Yunusa J by an order dated 4/10/13 transferred this suit to the national Industrial Court of Nigeria.

By his General Form of Complaint dated 23/10/14, the Claimant sought the following reliefs against the Defendant –

1          A Declaration that the Plaintiff’s dismissal of 20th April, 2005 by the           Defendant was wrongful and therefore null and void.

  1. Re-instatement of the Plaintiff’s pension and all other benefits attached      thereto.

                        SPECIAL DAMAGES

  1. Plaintiff’s terminal benefit                         –           =N=4,000,000.00
  2. Legal and Medical Expenses                      –           =N=2,000,000.00

            AGGRAVATED DAMAGES

  1. Malicious Prosecution                                –           =N=5,000,000.00
  2. False Imprisonment                                     –           =N=5,000,000.00
  3. Defamation                                                   –           =N=4,000,000.00

                        TOTAL                                              =N=20,000,000.00

 

Alongside his Form 1, the Claimant filed his statement of facts, witness statement on oath, list of witness as well as list and copies of documents to be relied on at trial. The Notice of Preliminary Objection filed by the Defendant on 20/2/15 was heard and dismissed on 21/4/15 consequent upon which the Defendant filed its statement of defence together with all the requisite frontloaded processes.

  1. Case of the Claimant

The Claimant opened his case on 22/6/15. 2 witnesses – CW1 & CW2 testified for the Claimant. CW1 adopted his witness deposition dated 23/10/14 as his evidence in chief and tendered 16 documents as exhibits. The admissibility of 5 of the documents were successfully objected to. The 5 documents were thus marked tendered and rejected. The remaining 11 documents were admitted there being no objection and marked as Exh. C1-Exh. C11 respectively.

Under cross examination, the witness testified that he does not have medical evidence of the cause of his father’s death; that he did not accompany his father to this court over this matter; that he is not seeing the documents  tendered for the first time here; that he saw the query issued to his father before he died  and his reply to same; that he does not know if there were other staff of Defendant whose certificates were verified; that he does not know when his father obtained his first School Leaving Certificate and that he holds Senior Secondary School Certificate qualification.

The second witness for the Claimant testified on 9/3/16. Witness adopted his 2 witness’s statement on oath dated 23/10/14 as his evidence in chief. Witness also tendered a document to be admitted as exhibit. The document was admitted without objection and marked as Exh. C12.

 

Under cross examination, CW2 stated that the plaintiff was 58yrs when he died; that he has no evidence of his visit to Overcomer Hospital & General Hospital; that Alternative Medicine Practitioner is a person who treats with herbs; that he does not know the scientific or medical valve of the herbs the plaintiff was administered; that Plaintiff could not have been administered concoction; that  the beating plaintiff received at the cell and arrest led to his death; that there is no medical reports that plaintiff was suffering from any illness stated in his oath; that the Nigeria Ports Authority Police told him that his late brother was arrested and tortured at the instance of the Defendant; that he does not  know as he could not ask the Officer who told him his name; that he did not see staff of Defendant torturing his late brother; that he does not know why the Police is not a party to this suit; that his late brother lost respect in the village because he was accused of forging certificate; that there are no Chieftaincy titles in his village aside Eze and that others are regarded as Elders. Witness added that during trial at the Magistrate Court there were people from his Village at the Court; that the same people were there when he was discharged and acquitted; that he did not regain the respect after he was discharged and acquitted; that Exh.C7 was the document presented by the Claimant to the panel of investigation; that he does not know what the Panel wanted whether Testimonial or First School Leaving Certificate when the Panel visited his Village; that he was not part of the Panel; that he has Ordinary National Diploma in Finance; that he has 1st School Leaving Certificate issued by the Ministry of Education and that his late brother was not aware of the existence of a Panel.

  1. Case of the Defendant

The Defendant opened its case on10/7/18. It called one Shafideen Adekunle as its lone witness. DW1 simply adopted his witness statement on oath dated 19/6/15 as his evidence in chief. Witness did not tender any document for admission as exhibit.

The case of the Defendant as revealed from the pleadings filed, in brief, is that the deceased was its former employee; that his answer to the Query issued to him was not satisfactory; that he was aware of the Investigation Panel set up to investigate him along with other staff; that the dismissal of the deceased followed due process and was carried out in pursuance of official duty; that it did not master mind the arrest and detention of the deceased; that the deceased did not suffer any losses and damages as a result on account of the Defendant’s act and that action is barred by statute for being instituted beyond the time permitted by law under which it was instituted.

Under cross examination witness stated that he has been with the Defendant for about 27 years; that Claimant was employed on 16/8/81; that Defendant checks Certificates of staff periodically; that when claimant was reported to the Police, he was charged to court for Certificate forgery; that at the Magistrate Court, the case was dismissed and that he was not the person who reported claimant to the Police.

 

  1. Submissions of learned Counsel

At the close of trial and pursuant to the direction of the Court, learned Counsel on either side filed their final written address. The final written address of the Defendant was filed on 28/8/18. In it, learned Counsel set down the following issues for the just determination of this case – 1. Whether the Defendant acted wrongly and illegally when it dismissed the Claimant for Certificate forgery and consequently bound to reinstate his pension and other benefits. 2. Whether the Claimant was denied his fundamental rights before he was dismissed from the employment of the Defendant. 3. Whether the Claimant has proved his entitlement to special damages; and 4. Whether Defendant is liable to False Imprisonment, Defamation and Malicious Prosecution as claimed by the Claimant.

Arguing these issues learned Counsel submitted that when this matter was instituted at the Federal High Court an appeal was taken to the Court of Appeal; that same was determined on 12/7/16 and that the Judgment of the Court of Appeal had answered all the issues raised by the Claimant in this case and that the Court of Appeal dismissed the entire case of the Claimant. Counsel commended the Judgment to this Court and submitted that by the doctrine of stare desisis this Court is bound by that decision, citing Int. Tobacco Co. Plc v. British American Tobacco Nigeria Limited & Anor. (2013) LPELR-20494 (CA). Counsel submitted that the facts and parties in the instant case and the case that went on appeal are the same. Counsel prayed the Court to dismiss this suit in its entirety. On the relief for special damages, learned Counsel submitted that the Claimant did not lead any credible evidence to support the grant of this relief and that the same argument goes for claims for damages for false imprisonment, defamation and malicious prosecution.

The final written address of the Claimant was filed on 12/10/18. Learned Counsel set down the following 4 issues for determination – 1. Whether Sec.2.(a) of Public Servant(sic) Protection Act 1990 can available Defendant in circumstance of this matter; 2. Whether the ruling of Court of Appeal No. CA/L/432/2010 Nigeria Port Authority v. Christopher Okereke (attached to the Defendant’s final written address) can avail the Defendant in this matter; 3.       Whether dismissal of the Claimant via Exhibit C3 by the Defendant was not wrongful and therefore null and void; and 4  Whether the Claimant is not entitled to all his claims in this matter.

Arguing these issues, learned Counsel submitted that abuse of office and bad faith are factors that deprive a party who would have otherwise been entitled to the protection of the Public Officers Protection Act from such protection; that there was bad faith on the part of the Defendant in dismissing the Claimant and that the limitation does not apply to cases of breaches of contract citing University of Agriculture, Makurdi’s case (2004)5 NWLR (Pt. 865) 208. Counsel submitted further that the Judgment of the Court of Appeal in Appeal No: CA/L/432/2010, Nigerian Ports Authority v. Christopher Okereke  could not avail the Defendant; that the Judgment was delivered on 12/7/16 a long time after the issue before the Federal High Court had been resolved by the Third Alteration Act, 2010 and that hence what the Court of Appeal did was a mere academic exercise citing Charles Chiwendu Odedo v. INEC (2008)7 S.C 25 and that this Court should discountenance the said ruling and any reference to it. Counsel added that since the Claimant was acquitted of the criminal charge which formed the basis of his dismissal, on the authority the dismissal should be set aside. Counsel prayed the Court to declare the dismissal of the Claimant as wrongful, null and void and grant all the reliefs sought by the Claimant.. On 6/11/18, the Defendant filed a 17-page reply on points of law. The reply was essentially to counter the submission that Public Officers Protection Act does not apply to contract and that employments are contractual in nature.

  1. Decision

I have read and clearly understood all the processes filed by learned Counsel on either side. I heard the testimonies and watched the demeanor of the witnesses called at trial. I patiently and carefully evaluated all the exhibits tendered and admitted at trial. I also heard the oral submissions of learned Counsel while adopting their respective final written addresses. Having done all this I set down 2 main issues for the just determination of this case as follows –

  1. Whether or not this Court is bound by the Judgment of the Court of Appeal Lagos             Division in Nigerian Ports Authority v. Christopher E. Okereke Appeal No:             CA/L/432/2010.
  2. Whether the Claimant is entitled to all or some of the reliefs sought in this case.

I deem it imperative that I set out the history and facts of this case as concisely brief as possible. This, I believe, will engender a deep appreciation of this Judgment. Mr. Christopher Okereke, deceased, was an employee of the Defendant. His employment was regulated by and subject to the rules and regulations as contained in the Defendant’s Handbook. Sometimes in April 2004, he received a Query dated 20/4/2004 from the Defendant requesting him to show proof that the Primary Six School Leaving Certificate with the name Ndukwe Ochu was actually his and not someone else’s certificate. Claimant was subsequently dismissed by a letter dated 20/4/2005 on the ground that the management Administrative Panel set up to investigate cases of forged certificates, had found you guilty of fraud”. It was part of the case of the Claimant that the Defendant handed him over to the Police, detained, tortured and charged to Court by the Police and that he was later discharged and acquitted of the criminal charge against him. Upon his discharge and acquittal, the Claimant approached the Federal High Court in 2008 in Suit No. FHC/L/CS/4714/2008 – Christopher Okereke v. Nigerian Ports Authority.

In that suit, Claimant sought exactly the 7 reliefs he sought in this case. The present Defendant who was also the Defendant in that case filed a notice of preliminary objection challenging the jurisdiction of the Federal High Court to hear and determine the case. In a considered Ruling, the Federal High Court per D. D. Abutu Ag. Chief Judge on 9/10/09 overruled and dismissed the preliminary objection. The present Defendant being dissatisfied with the Ruling filed an appeal to the Court of Appeal. That was Appeal No: CA/L/432/2010. In a lead Judgment delivered by Oseji JCA, the Court of Appeal held inter alia, that the Claimant was given fair hearing in the events leading to his dismissal; that the Respondent (Claimant) not having challenged his dismissal until 2008, the Appellant (Defendant) was protected by the Public Officers Protection Act and that –

            ” While the Respondent was late in the claim for a declaration that his dismissal on          20-4-2005 by the Appellant is null and void, the claims for malicious prosecution,     false imprisonment and defamation flows(sic) from a recent event and he acted within time and which claim should not be allowed to die with the claim for   dismissal because time for the said claims begins to run after his discharge and        acquittal on 13-6-08”.

Before the Judgment of the Court of Appeal was delivered and pursuant to the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act 2010, the suit at the Federal High Court was transferred to this Court by Yunusa J. Although an order for transfer of this case to this Court was made and the matter transferred accordingly, however, the learned Counsel to the Claimant commenced a different suit in this Court. For, the matter that was transferred was Mr. Christopher E. Okereke v, Nigerian Ports Authority. The present suit was commenced by a General Form of Complaint & statement of claim(sic) on 23/10/14. While the 2 Claimants in this case purported to be representing the Estate of Christopher Okereke (Deceased) they failed to comply with the provision of Order 11 of the Rules of this Court dealing with Entitlement of Deceased Employee (Intestate). Under Rule 1 of that Order, Claimants are expected to provide proof of the next of kinship or relationship; attach Letter(s) of Administration obtained from appropriate Probate Registry of a High Court, or an order from a Customary Court of Appeal or Sharia Court of Appeal. There is also no evidence of death of Mr. Christopher E. Okereke the estate of whom the present Claimants claim to represent. These facts are sufficient for the Court to dismiss the case of the Claimants. I would however err on the side of caution and consider the case of the Claimants against the Defendant on the merit.

Now respecting issue 1, learned Counsel to the Claimant had urged the Court on page 12 of his final written address to discountenance that Judgment of the Court of Appeal and place no reliance on it. That submission, I dare say, is a rather bold but unfortunate one. To submit as learned Counsel did and to urge a trial Judge to discountenance the Judgment of the Court of Appeal is tantamount to asking a trial Judge to commit judicial sacrilege; a call to institutionalise judicial rascality and enthrone discourtesy in the Judiciary. Indeed, it is the duty of any Counsel who is so called and who is deserving of being so called to ensure and encourage lower Courts to follow laid down judicial precedents and to show courtesies to higher Courts in the judicial hierarchy. What learned Counsel to the Claimant, H.O. Ogungbamila, had done in his final written address is most unfortunate and in some jurisdictions he would be sanctioned by the appropriate authority of the Bar.

The doctrine of stare decisis is an age-long doctrine which is accepted and strictly adhered to. The doctrine is simply to the effect that lower courts are bound by the decisions of higher or superior Courts in the judicial hierarchy. A trial Judge has no iota of discretion on issue of this nature. In Bogoro Local Government Council v. Kyauta & Ors. (2017 LPELR (CA) the Court of Appeal restated the position of the law thus –

            “Stare decisis” is a Latin word for “to stand by thing decided”. The doctrine           requires Judges to abide by the previous decisions on the same issues made by         Courts of the same jurisdiction; and of equal or higher level. The purport of this Latin maxim is that once a point or principle of law has been settled by a decision of a competent Court, it becomes a precedent which should not be departed from          in a case in which it is directly involved, by the same Court, tribunal, or by those            which are bound to follow its decisions except where the Court finds it necessary       to overrule a case which it decided contrary to the right principle of law. To             maintain decorum in the judicial parlance and so avoid confusion, undue   uncertainty, judicial rascality and extremism in judge’s hunches; decisions of      higher Courts must be followed by lower Courts, Courts of coordinate     jurisdiction must also abide by their previous decisions on issues except when the        facts are distinguishable. See: DAKAN & ORS. V. ASALU & ORS. (2015)             LPELR 24687 (SC) CHUKWUKA & ORS. V. EZULIKE & ORS. (1986) 2   NSCC 1347”.

See also Usman v. Umaru (1992) 7 SCNJ 388, Ngwo & Ors. v. Monye & Ors (1970) LPELR-1991 (SC) and CBN & Ors. v. Okojie (2015) LPELR-24740 (SC).  The inevitable conclusion respecting issue 1 is that this Court is bound by that decision of the Court of Appeal in NPA v. Chritopher Okereke. I have noted that the Court of Appeal already decided definitely on reliefs 1 to 4 sought by the Claimant and dismissed same. Therefore I find and hold that by virtue of that Judgment of the Court of Appeal this Court can no longer adjudicate on those 4 reliefs. The first 4 reliefs sought by the Claimant are accordingly dismissed.

The second issue for determination is whether the Claimant is entitled to all or some of the reliefs sought in this Court. Having dismissed the first 4 reliefs sought by the Claimant, only 3 reliefs that is reliefs 5, 6 & 7 are left for consideration. The 3 reliefs are for award of aggravated damages for malicious prosecution, false imprisonment and defamation.

On the claim for aggravated damages in the sum of =N=5,000,000.00 for malicious prosecution, learned Counsel had submitted that the Defendant more than a year after dismissing the Claimant handed him over to the Police for prosecution; that there was malice in the conduct of the Defendant and that Claimant was eventually discharged and acquitted citing Eromosele v. Wermer (2014) LPELR-22183 (CA). The law relating to malicious prosecution is rather clear and certain. It means prosecution caused by malice and without a reasonable or even probable cause. For a party to be entitled to damages in the tort of malicious prosecution, he must prove, among others, instigation of action, absence of probable or reasonable cause, malice and favorable termination of the original suit. See Ugbe v. Chukwusa & Ors. (2014) LPELR-23324(CA). The evidence led by the Claimants in this case is simply to the effect that the Defendant reported a criminal matter to the Police. Both the 1st and 2nd Claimant’s witnesses did not lead any evidence of malice on the part of the Defendant. In any event, could it be reasonably asserted that there was no reason cause for the Defendant to have reported the Claimant to the Police in view of the allegation bordering on forged certificate? I answer in the negative. There is also no evidence that the Defendant did more than to just lodge a complaint with the Police. I find and hold that this head of relief is not proved as required by law. I thus dismiss the claim for aggravated damages for malicious prosecution same not having been proved.

Claimant also sought award of the sum of =N=5,000,000.00 as damages for false imprisonment. The position of the law on false imprisonment was well captured and espoused on by Augie JCA (as he then was) in Okeke v. Igboeri (2010)LPELR-4712(CA) in the following words on the marble –

            ”The tort of false imprisonment is the restraining or detaining of a person, if the    person doing or causing the imprisonment has no right in law to imprison that        other – see FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120, wherein it was    held as follows-

            ‘If there is evidence, which shows that the reporting party, upon suspicions of a     felony made a complaint to the Police, upon which the Police themselves acted, an           action in false imprisonment cannot be upheld. Thus, to succeed in an action for     false imprisonment, the Plaintiff must establish that the Defendant was     instrumental in setting the law in motion; passing information to the Police is not     enough’.

            In other words, a mere complaint to the Police will not make a citizen liable of      false imprisonment – see Nwangwu & Anor v. Duru & Anor (2002) 2 NWLR (Pt.             751) 265, where this Court held:

            ‘Where an individual has lodged the facts of his complaints to the Police and the   Police             thereupon on their own proceeded to carry out arrest and detention, then the         act of             imprisonment is that of the Police. “

Again the 2 witnesses called by the Claimants did not adduce any credible evidence to bring the action of the Defendant within the confine of false imprisonment in the light of the Judgment of Augie JCA (as he then was). I hold that the Claimants are not entitled to this relief not having proved same. Accordingly I dismiss same without hesitation.

Finally, Claimant equally sought aggravated damages in the sum of =N=4,000,000.00 for Defamation. In Obok & Ors. v. Agbor & Ors. (2016) LPELR (CA), the Court emphasised that aggravated damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment; such as where it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law. The motive and conduct of the defendant are taken into account; G.K.F. Investment Nigeria Ltd v. Nigerian Telecommunications Plc. (2009) LPELR-1294 (SC); Marine Management Associates Inc. v. National Maritime Authority (2012) LPELR-20619(SC) and Udofel Ltd v. Skye Bank Plc. (2014) LPELR-22742(CA).

This Court has found and held that there was no malice or allegation of one successfully put forward by the Claimants against the Defendant. The conduct of the Defendant and all actions it took could not be said to be sufficiently outrageous or done in outright disregard of the law to warrant an award of aggravated damages. I refuse and dismiss this head of claim for lack of proof by credible, cogent and admissible evidence.

Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I dismiss the case of the Claimants in its entirety for lacking in merit.

The Claimants shall bear the cost of this action assessed at =N=100,000.00 only to the Defendants payable within the next days.

Judgment is entered accordingly.

____________________

Hon. Justice J. D. Peters

Presiding Judge

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