SUNDAY EMEJE v. NATIONAL INSTITUTE FOR PHARMACEUTICAL RESEARCH AND DEVELOPMENT
(2010)LCN/4192(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of May, 2010
CA/A/291/2008
RATIO
DUTY OF COURT: WHETHER THE COURT CAN FILL THE GAP WHERE THE STATEMENT OF CLAIM IS VAGUE
The Statement of Claim was vague where details of important facts were called for. This gap cannot be filled by the Court. This is so since a Court of law is not with authority to dish out remedies in vacuo. See the case of Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 where the Supreme Court per Onu J.S.C had held: “Ubi jus, ibi remedium, Jus here signifies the legal authority to do or demand something and remedium here means the right of action or the means given by law for the recovery or the declaration or assertion of that right. In other words the maxim presupposes that whenever the law gives a right, it also gives remedy, that remedy must be founded on a legal right. PER MARY U. PETER-ODILI, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
SUNDAY EMEJE Appellant(s)
AND
NATIONAL INSTITUTE FOR PHARMACEUTICAL RESEARCH AND DEVELOPMENT Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): The Plaintiff now Appellant took out the Writ of Summons in this Suit on the 4th of November, 2002 and with it filed a Statement of Claim in which he made the following claims against the Defendant now Respondent viz:-
1. A declaration that his suspension from work without due process is unlawful and therefore null and void.
2. An order directing the Defendant to reinstate the Plaintiff to his office, restore his salaries and other benefits, allowances and entitlements without loss of seniority or any privilege whatever.
3. A perpetual injunction restraining the Defendant either by itself, servants, agents or privies howsoever described from harassing or terminating the Plaintiff’s employment without due process.
FACTS: –
The Statement of Claim was amended by the order of Court on the 17th day of September, 2003. The Plaintiff testified and called one witness. In his testimony the Plaintiff said he joined the services of the defendant on the 1st of June 1989 and was eventually confirmed as Maintenance Officer and was later promoted via Exhibit P3 to HATISS 09 Level 09 Step 2 on the 13th July 1999. He was in the good books of the Defendant before the current Director-General of the Defendant Dr. Inyang took over the management of the Institute in August 2001. Between September, 2001 and April, 2002, the said Director-General had caused the Plaintiff:-
1) To be queried on 26/9/2001.
2) To be reprimanded 18/10/2001.
3) Removed as maintenance officer on 18/10/2001.
4) To pay the sum of N170,000.00 to the Defendant on 27/11/2001.
5) To be issued another fetter to pay the sum of N317,000,00 to Defendant through N15,000.00 monthly deductions from his salary.
6) To be singled out of 171 employees who had not returned certain advances made to them and asked to refund the sum of N1,273,679.00 to the defendant when other staff had far heavier sums to return. This was via a letter dated 5th April 2002.
7) To be suspended from work on the 14th May, 2002 and denied his entire salary from then till date.
Plaintiff said all these punishments were meted out to him without due process. His witness PW2 testified that P11 which in the minutes of the meeting of the defendant’s Board of directors of 9th May 2002 were not the minutes he recorded as the Secretary of that Board meeting on that day. He said this because the minutes which is purportedly the decision of the Board to suspend himself, the Plaintiff, James Bako and Mr. R.G. Jigah. Rather he identified Exhibit 12 as the minutes prepared by him, which does not contain the said paragraph and which Exhibit 12 is what he submitted to the Director General. That Exhibit 11 was not signed by PW2 as Secretary who signed Exhibit 12.
Although the Defendant filed a Statement of Defence later amended it did not call any witness but rested and relied on the Plaintiff’s case.
Written addresses were ordered and provided and in a considered judgment the learned trial judge, Honourable Justice S.J. Adah dismissed the Plaintiff’s case. Plaintiff being dissatisfied has appealed to this Court.
Mr. Okpanachi, learned Counsel for the Appellant adopted their Brief filed on 13/11/08 and in it was framed two issues viz:-
1. Whether the learned trial Judge was right when he held that the Appellant’s suspension was proper because the governing Board of the Defendant approved it.
2. Whether the Lower Court is not wrong in not deciding in favour of the Appellant even though it concluded that “A situation where the Plaintiff was suspended 14/5/02 and by 8/8/02 the same suspension was extended and it lingers on ad infinitum is a very terrible thing”.
Mr. Adino for the Respondent adopted the issues formulated for the appellant with the slight modification which I consider apt for the first issue, which I shall utilise and it is:-
ISSUE NO:1
Whether the Learned trial Judge was right when he held that the Appellant’s suspension was proper.
Learned Counsel for the Appellant, Mr. Okpanachi referred to Rule 01403 of the Federal Civil Service Rules 2000 and paragraph 7 of Chapter 4 of the ‘Guidelines for appointment Promotion and Discipline’ which guide the suspension of civil servants of the level of the Appellant. Also that pursuant to Rule 04405 of the Federal Civil Service Rules 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 should forthwith be prohibited from carrying on his duties pending investigation into the misconduct.
Mr. Okpanachi said that no criminal proceedings had been instituted against the Appellant and no Disciplinary Committee had been set up to investigate him. That he was not invited before any Committee to answer any allegation before he was suspended on 14/5/2000 nor at any time and so the conditions in Chapter 4 of the Guidelines and Rule 04405 of the Civil Service Rules were not complied with before he was suspended. He referred to paragraph 8(v) of part 4 of the Guidelines for appointment, Promotion and Discipline that the Board of any extra-ministerial department or Parastatals of the Federal Government had no rote to play in the suspension of a civil servant. He said that power is delegated to the Head of such Parastatals and he cannot re-delegate that power to the Board and so it followed that the learned trial judge was wrong to hold that because the Board took a decision to suspend, the suspension was in order.
Learned Counsel for the Appellant said they tendered Exhibits 11 and 12 to show the ungodly animosity of the Respondent against the Appellant not to prove the Board had powers to suspend the Appellant.
That the Respondent never called a witness, never contradicted nor controverted the Appellant’s evidence yet the Lower court came to the conclusion that the Appellant’s suspension by a body which had no power to suspend him from 2002 till the date of hearing was right. He cited Eperokun v. University of Lagos (1986)4 NWLR (pt. 34) 162;
Olaniyan v. University of Lagos (1985) 2 NWLR (pt 9) 599; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.
Learned Counsel for the Respondent, Mr. Adino submitted that the pleadings and evidence before the trial court show that the Defendant was given fair hearing before he was suspended from work. That written allegations against the Plaintiff/Appellant were shown to him to respond to and that is sufficient and tantamount to giving him a fair hearing or opportunity to defend himself. He cited Yusuf v. Union Bank of Nigeria Ltd (1996) 6 SCNJ 203 at 205. He stated that the provision of Rule 01403 of the Federal Civil Service rules 2000 cited by the Appellant’s counsel was inapplicable in this case. That Appellant did not plead and lead evidence at the trial court that his HATISS 09, STEP 2 is equivalent to Grade Level 10 in the core civil service. That assuming without conceding that the Appellant’s rank is equivalent to Grade Level 10, that the Director-General as Head of the Respondent (Extra-Ministerial Department) has the power to suspend the Appellant pursuant to Rule 04405. That the Court should invoke the provision o Section 150(i) of the Evidence Act in favour of the Respondent as the burden of proof is on the appellant to rebut through positive evidence at the trial the presumption that the Respondent obtained the requisite consent before extending his suspension. He further referred to the pieces of evidence before the trial Court that show that the Appellant was over indulged before his suspension.
Learned Counsel for Respondent said it was not true that Appellant’s case was not contradicted or controverted at the trial court as Appellant’s evidence was weak and had been battered under cross-examination. That the Appellant ought not succeed on the strength of his own case and it is when he has discharged the burden of proof that the Defendant/Respondent will be called upon to adduce evidence in rebuttal. He cited Ezemba v. Ibeneme (2004) 122 LRCN 5163 at 5166; Elema v. Akenzua (2000) 79 CRCN 2048 at 2050; Agbi v. Ogbeh (2006) 139 LRCN 1739 at 1745.
I would quote the Letter of Suspension of the Appellant fully as follows:-
“NIPRD/P.141, 14th May, 2002
Mr. Sunday Emeje,
National Institute for Pharmaceutical
ReOffice of the Director General
NIPRD/P.141, 9th August, 2002
Mr. Sunday Emeje,
Maintenance Officer,
NIPRD
Idu-Abuja.
RE: LETTER OF SUSPENSION
In a letter of 14th May, 2002 you were informed of the directive of the Board to ask you to proceed on suspension with effect from that date. The intention was to allow the Board to conduct further investigation on your involvement in some critical issues raised in the reports of some internal inquiries. The board thereafter referred the case to its committee for further action.
2. The board met on 8th August, 2002 to receive the report of this committee and was informed that the committee will require some more time to conclude its assignment.
3. Consequently, the board has directed that your suspension from office still stands. Though, the initial letter had indicated that the suspension is until further notice, it is important to notify you of developments on the issue.
4. You are further requested to cooperate with the committee in its investigation to make sure that the assignment is completed on time.
(Signed)
Dr. U.S. Iyang
Director General/Chief Executive Officer”.
Part of the judgment salient to the discourse in Issue No. 1 as to whether the suspension was right or not reads as follows:-
“This letter written on 9/8/02 has referred to the decision of the board on 8/8/02. It means the board that met took that decision.
Exhibit P11 is a duly certified copy of the minuets from the defendant and if that is the official record of the proceedings at that meeting it is very difficult to say it is not the authentic record in the circumstances of this case. Perhaps, the issue will have been tidier if the plaintiff had called a member of the board other than this secretary to testify as to the happenings at that board meeting. Since this was not done, I find it as a fact that exhibit P11 is the credible record of the proceedings at that meeting.
The suspension in this case is well over 36 months from the facts before the court. This type of an indefinite suspension that runs over three years is not a palatable situation to the parties in this case. I must say that when a man is suspended from his employment he cannot have any more stability to face life with the uncertainty of his suspension dangling over his head. I believe that prudence and fair play demand that suspension should not in any situation be allowed to linger indefinitely.
A situation where the plaintiff was suspended 14/5/02 and by 8/8/02 the same suspension was extended and it lingers on ad infinitum is a very terrible thing. The defendant must be called upon and I call on them to look into the issue of the plaintiff and show some palliatives or mercy. That is the only thing that is left for the plaintiff.
As for his suspension it was in order and there is nothing deficient in the steps taken in his suspension. The plaintiff has therefore not proved his case. It is hereby dismissed.
(signed)
S.J. Adah
JUDGE
7/6/2005”.
Mr. Adino, learned Counsel for the respondent contended that the Appellant’s Counsel had not shown in any way that the governing board of the respondent has no right to approve the suspension of the Appellant by the Director-General of the Respondent. Of course that is a position not agreed upon by Mr. Okpanachi for the Appellant.
Rule 01403 of the Federal Civil service rules 2000 relevant in this matter has provided as follows:-
“The Federal Civil Service Commission has delegated full power to the Permanent secretaries and Head of Extra-Ministerial Department in respect of officers on salary Grade Level 10 – 13 with exception of the power of dismissal, which being (sic) delegated only from Grade Level 01 – Grade Level 06. This Chapter should be read in conjunction with the ‘guidelines for appointment, Promotion and Discipline’ published by the Federal Civil Service Commission”
Then coming to the suspension of civil servants of the level to which appellant belongs paragraph 7 of Chapter 4 of the ‘Guidelines for appointment, Promotion and discipline’ states:
“If criminal proceedings are instituted against an officer or are about to be instituted the Permanent Secretary may suspend him from service until the determination of the proceedings or any appeal thereof”.
Learned Counsel for the appellant submitted further that no criminal proceedings had been instituted against the Appellant, no Disciplinary Committee had been set up to investigate him. That he was not invited before any Committee to answer any allegation before he was suspended on 14/5/2000 nor from then till this appeal and so Chapter 4 of the Guidelines and Rule 04405 of the Civil Service Rules had not been complied with before his suspension.
Paragraph 8(v) of Part 4 of the Guidelines for Appointment;
Promotion and Discipline contains this provision viz:
“Under no condition should interdiction or suspension be made to last more than three months in the first instance. Where the need for extension arises, the permission of the Federal Civil Service shall be obtained”.
The Respondent counsel’s reaction is that Rule 01403 of the Federal Civil Service Rules 2000 cited for the Appellant is inapplicable and that Appellant had neither pleaded nor led evidence at the trial Court that Appellant’s HATISS 09, Step 2 is equivalent to Grade Level 10 in the core civil service. That the appellant had not shown that the Governing Board of the Respondent has no right to approve the suspension of the Appellant by the Director- General of the Respondent.
In view of how vehemently the angle above stated was tackled by both parties it is necessary to refer to the Statement of Claim of the Appellant in the Court below and it is:-
“STATEMENT OF CLAIM
1. The Plaintiff at all times material to this suit is an employee of the Defendant.
2. The Defendant is a Federal Government owned Research Institute with its office Idu, Karmo, Abuja within the jurisdiction of this Court.
3. Vide its letter dated in June 1995, the defendant employed the Plaintiff as a Maintenance Officer. That appointment was confirmed and the Plaintiff was eventually promoted to Maintenance Office I and subsequently Senior Maintenance Officer vide the Defendant’s letter Ref. No. NIPRD/SS/D.154 of 13th July, 1999. The letter of employment, confirmation and last promotion of the Plaintiff are hereby pleaded.
4. Sometime in the month of August 2001, the Plaintiff’s attention was drawn to the fact that the Defendant’s generator at the premises of the Director General/Chief Executive Officer of the defendant had broken down. The Plaintiff called the attention of the then director of administration and finance to the development. He then verbally instructed the Plaintiff to immediately engage a good hand to fix and later raise the paper work for him to approve.
5. The Plaintiff did so and engaged an engineer to fix the generator and accordingly raised the paper work for him to approve. In the mean time a new Director-General was appointed for the Defendant. On the 26th of September, 2001 by its letter Ref. No. NIPRD/P.141 the said Director of Administration and Finance queried the Plaintiff for committing the Defendant to a contract of
N200,000.00 without authority. The paper work raised by the Plaintiff and the query dated 26/9/2001 are hereby pleaded.
6. The Plaintiff answered the query and by its letter of Warning/Reprimand Ref. NIPRD/P.141 dated the 18th of October, 2001, the Defendant severely reprimanded the Plaintiff and removed him as the Maintenance Officer of the Institute. The said letter is hereby pleaded.
7. To the best of the Plaintiff’s knowledge the Defendant has not paid the engineer any money. However the Defendant started deducting the cost of the repairs from the Plaintiff’s salary immediately.
8. On the 27th of November, 2001, the Plaintiff received another letter Ref. No. NIPRD/D/AF/1015/16 asking him to refund the sum of N170,000.00 used to procure Automatic Voltage regulators for two generators at the Defendant’s pilot plant. The said letter is hereby pleaded.
9. Again on the 21st of January, 2002 by another letter Ref. No. NIPRD/P.141 the Defendant informed the Plaintiff it was deducting the sum of N15,000.00 every month from his salaries to recover the sum of N317,000.00 being amount advance to him for “AVR AND REPAIR OF KADO QUARTERS. The said letter is hereby pleaded.
10. Again on the 5th of April, 2002, the Plaintiff received another letter Ref. No. NIPRD/P.141 titled “Re: OUTSTANDING PURCHASE ADVANCES (1995 – 1998) putting a search light on all the Plaintiff ever did in his department and more or less accusing him of improperly handling some funds. This letter is hereby pleaded.
11. Then on the 14th of May, 2002 vide its letter Ref. No. NIPRD/P.141 the Defendant suspended the Plaintiff from work and by another letter of 9th August 2002, the Defendant informed the Plaintiff that the Board of the defendant has decided to suspend him from work (which was on already from May with stoppage of his salary). The two letters of suspension are hereby pleaded.
12. In all these accusations and punishments, the Plaintiff was never brought before any disciplinary committee to face his accusers. The Defendant has carried on in the most arbitrary and oppressive manner despite the fact that the Plaintiff’s appointment is statutory and pensionable.
13. Whereof the Plaintiff claims against the Defendant:-
(a) A declaration that his suspension from work without due process is unlawful and therefore null and void.
(b) An order directing the Defendant to reinstate the Plaintiff to his office, restore his salaries and other benefits, allowances and entitlement without loss of seniority or any privileges whatsoever.
(c) A perpetual injunction restraining the Defendant either by itself, servants, agents or privies however described from harassing or terminating the Applicant’s employment without due process.
Clearly from the pleading above, also looking at the Statement of Defence, the inter-relationship between the parties and the Civil Service and its Rules were not part of the areas of dispute and so cannot now be smuggled in by the Appellant through counsel’s submission which cannot take the place of evidence or pleadings.
In fact those matters concerning the Civil Service Rules, HATISS etc are not within the contemplation of either the suit in the Court below or in this appeal, the condition precedent of introducing a fresh issue or issues having not been met.
Therefore, just as the learned trial Judge found, the Appellant has not shown the wrongfulness of the suspension meted out to him. I refer to the cases of: Yusuf v. Union Bank of Nigeria Limited (1996) 6 SCNJ 203 at 205; Ezemba v. Ibeneme (2004) 122 LRCN 5163 at 5166; Elema v. Akenzua (2000) 79 LRCN 2048 at 2050; Agbi v. Ogbeh (2006) 136 LRCN 1739 at 1746.
It is therefore in the light of the foregoing that I answer this Issue No. 1 in favour of the respondent and that is that nothing has been shown to impugn the integrity of the suspension made by the Respondent against the Appellant.
ISSUE NO: 2
Whether the Lower Court is not wrong in not deciding in favour of the Appellant even though it concluded that “A situation where the Plaintiff was suspended 14/5/02 and by 8/8/02 the same suspension was not extended and it lingers on ad infinitum is a very terrible thing.”
Learned Counsel for the Appellant, Mr. Okpanachi said it was truly amazing how the learned trial Judge could find the Appellant’s suspension, ‘ad infinitum’ is a very terrible thing and still go on in the next paragraph to say “his suspension it was in order and there is nothing deficient in the steps, taken in his suspension” and dismissed his case. That the Respondent was clearly in breach of the law to suspend the Appellant without due process and to again suspend him for more than 3 months. That at 36 months that Lower court found the suspension was ‘terrible’ yet it shied away from granting him his rights. He cited Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 at 205; Saleh v. Monguno (2006) 15 NWLR (pt. 1001) 26 at 60 – 61 para D – B.
Mr. Adino, learned Counsel for the Respondent said the learned trial Judge committed no error in making the observation which Appellant’s Counsel has taken umbrage over, since the observation did not occasion a miscarriage of justice. That the trial Judge properly evaluated the evidence adduced in the case and made appropriate findings and so that observation was peripheral to the main decision and goes to no issue. He cited Wilson v. Oshin (2000) 79 LRCN 2071 at 2076.
Learned Counsel for the Respondent went on to state that Appellant’s complaints of his suspension lingering ad infinitum, it is to be wondered at if he expected the Respondent to have taken any action on the suspension while the suspension was being challenged in court. That the legal maxim ‘ubi jus, ibi remedium’ relied upon by the Appellant’s Counsel is of no moment since there has to be a right and the violation of same before the issue of remedy can arise and the Appellant has failed to show what right he had, that has been violated entitling him to the reliefs sought at the trial court. He said the cases of Dantata v. Mohammed (supra) cited by learned counsel for the Appellant were inapplicable.
The learned trial Judge finding and denigrating the length of the period of the suspension which is about 36 months, has been played upon by learned counsel for the Appellant as worthy of a remedy by the Court. Indeed the learned trial Judge sympathized with the appellant on the length of time of the suspension but what it should amount to was not projected by the Appellant either in the Court below or this Court. Thus, the situation is one that cannot go beyond that emotional outburst of the learned trial Judge as the court is one of law and emotions play no part in the dispensation of justice when application of the law is called upon.
What I am trying to say, is that the Appellant failed to anchor his complaint upon the necessary legal framework upon which the Court would grant the remedy desired. The Statement of Claim was vague where details of important facts were called for. This gap cannot be filled by the Court. This is so since a Court of law is not with authority to dish out remedies in vacuo. See the case of Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 where the Supreme Court per Onu J.S.C. had held:
Ubi jus, ibi remedium, Jus here signifies the legal authority to do or demand something and remedium here means the right of action or the means given by law for the recovery or the declaration or assertion of that right. In other words the maxim presupposes that whenever the law gives a right, it also gives remedy, that remedy must be founded on a legal right”.
It can be seen that this case of Dantata has not helped the Appellant rather it underscores the prevailing circumstance. That in effect has shown that the trial Court having properly and adequately evaluated the evidence adduced in the case and made the appropriate findings, the side comment is of no import and indeed peripheral to the decision and goes to no issue.
I place reliance on Wilson v. Oshin (2000) 79 LRCN 2091 at 2076.
From what I have said herein on Issue 2 and even in the first issue answered, this question raised herein is in favour of the Respondent.
Finally, this appeal lacks merit and it is dismissed. I affirm the judgment of the Court below.
I make no order as to costs.
JIMI OLUKAYODE BADA, J.C.A: I read before now the Lead Judgment of My Lord MARY U. PETER-ODILI, J.C.A., just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal tacks merit and it is dismissed by me.
ABDU ABOKI, J.C.A: I have read in draft the lead Judgment delivered by my learned brother, Mary U. Peter-Odili J.C.A. I agree with the reasoning and conclusions of my Lord. I also dismiss this Appeal whilst affirming the Judgment of the lower Court.
Appearances
Isaac Okpanachi;
Charles Uhegbu;
Paul Omale;
Luwi NgubaneFor Appellant
AND
S. E. AdinoFor Respondent
