SURAJUDEEN OMOTAYO OMOTARA -VS- SECRETARY TO THE

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: SEPTEMBER 26, 2018 – NICN/ABJ/02/2015

BETWEEN

SURAJUDEEN OMOTAYO OMOTARA – CLAIMANT

AND

SECRETARY TO THE GOVERNMENT
OF THE FEDERATION – DEFENDANTS
NATIONAL IDENTITY MANAGEMENT
COMMISSION

REPRESENTATION : Parties absent.

Sharafa Yusuf with M.O Lawal for the Claimant.

M.M. Dikwa for the 2^nd Defendant. 1^st Defendant absent.

JUDGMENT

This suit was commenced originally at the Federal High Court by a writ filed on the 19^th of June, 2012. And by the Order of that Court on the 25^th of September, 2012, it was transferred to this Court. It was heard partly by another Court and commenced De novo on the 14^th of February, 2017 before this Court.

By the amended Statement of Claims dated 23^rd May, 2014, the Claimant claimed against the Defendants as follows:

A Declaration by the Honourable Court that the suspension and subsequent termination of appointment of the Claimant by the 2^nd Defendant is null and void as same was done in contravention of the Public Service Rules.
A Declaration by the Honourable Court that the stoppage of payment of the salary of the Claimant by the 2^nd Defendant is illegal same having been done in violation of the Public Service Rules.
A Declaration by the Honourable Court that the Claimant is and still remains a staff of the 2^nd Defendant.
An Order directing the 2^nd Defendant to issue to the Claimant offer of transfer of service in line with the provision of the National Identity Commission Act.
An Order directing the Defendants to restore all the rights of the Claimant to him as staff of the 2^nd Defendant.
An Order directing the 2^nd Defendant allow the Claimant perform his official duties as a staff of the 2^nd Defendant.
An Order directing the 2^nd Defendant to pay all the outstanding salary and promotion arrears of the Claimant to him from May, 2009 till the determination of this matter.
An Order directing the 2^nd Defendant to upgrade and convert the Claimant from Clerical Officer on Grade level 5 to Administrative Officer on Grade level 8 notionally from 2006 the Claimant have sought and obtain approval to embark on part – time B.Sc programme in Business Administration and upon completion of same having applied for conversion and upgrade, the promotion interview of which he was unable to partake in as a result of the suspension by the 2^nd Defendant.
An Order directing the 2^nd Defendant to issue to the Claimant the subsequent promotion letter to Administrative Officer (1) grade level 9 notionally from 2009.
An Order directing the 2^nd Defendant to issue to the Claimant the subsequent promotion letter to Senior Administrative Officer grade level 10 notionally from 2012.

It is the case of the Claimant that he is a staff of the 2^nd Defendant, the National identity Management Commission (hereinafter referred to as NIMC or the Commission) which Commission was established by the National Identity Management Commission Act, 2007. It is also the Claimant’s case that he was employed by the Federal Ministry of Interior, formerly Ministry of Internal Affairs on 24^th July, 2002 in Exhibit A1. That by Exhibit A2 a letter of Deployment of staff dated 5^th November, 2002 he was deployed to the then Department of National Civic Registration (now NIMC) as a Computer operator on salary grade level 04/1. That his appointment was confirmed on the 1^st of November, 2004 as published in official Gazette of 13^th December, 2007 in Exhibit A3.

It is also the case of the Claimant that on the 22^nd of August, 2005 he applied to the Department of National Civic Registration/Federal Ministry of Interior for approval for part time studies in Business Administration and was granted provisional approval in Exhibit A4 dated 27^th December, 2007. He proceeded and obtained a B.Sc degree from the Ambrose Alli, Ekpoma as shown in Exhibit A5, a notification of final degree examination results dated 20^th May, 2009. He avers that he wrote an application for upgrading and conversion to the 2^nd Defendant through the Director of Identity Database Department on the 27^th May, 2009 for which he gave the 2^nd Defendant a notice to produce.

The Claimant maintains that on the creation of the 2^nd Defendant (NIMC), it was given the right to determine the staff it was willing to absorb among the staff the defunct Department of National Civic Registration and the remaining staff were to be redeployed by the Head of Civil Service of the Federation. This at paragraph 10 of the amended Statement of Claim. The Claimant averred that the 2^nd Defendant neither absorbed any staff through the issuance of transfer of service nor sent any staff to the Head of Civil Service of the Federation but instead embarked on employment of temporary staff that were paid far more than what the Public Servants inherited were paid. That the long silence of the 2^nd Defendant on the issue of absorption of the defunct Department of National Civic Registration staff prompted the Claimant and six other staff to write a letter of Appeal to the Director General of the 2^nd Defendant in Exhibit A7 dated 14^th March, 2009. He maintains that he wrote Exhibit dated 17^th April, 2009 due to the lack of response from the 2^nd Defendant to his earlier letter.

It is his case that his salary for the month of May, 2009 was not paid when other staffs were paid their salary. That upon enquiry he got information from the Director, Finance and Investment Department on 28^th May, 2009 that the non-payment of his salary was on the instruction of the Director General of the 2^nd Defendant based on the fact that he had been transferred from the Headquarters of the 2^nd Defendant and that he (Claimant) had been suspended because he refused to proceed on transfer and he was shown a copy of his suspension letter. The Claimant however, maintained that his immediate boss, Mr J. O Hammed, a Principal Executive Officer, Identity Database Department of the 2^nd Defendant told him he was not aware of such transfer and suspension. That he also went to the Head of Human Capital Management of the 2^nd Defendant one Mrs Aderonke Agunbiade for collection of the letters on the 28^thof May, 2009 but she told him the matter had been forwarded to the junior staff disciplinary Committee. On the same day, he averred that he went to the office of the Discipline Schedule Officer in the 2^nd Defendant one Mrs Shotanwa to collect the letters but was told that the matter had been forwarded to the junior staff disciplinary Committee. He maintains that it was on the same 28^th May, 2009 that he saw the letters of transfer, query and the letter of suspension and that he was not allowed to collect the letters by the Head of Human Capital Management of the 2^nd Defendant (the said Mrs Agunbiade and the Discipline schedule Officer Mrs Shotanwa).

The Claimant maintains he wrote Exhibit A10 dated 5^th of July, 2009 to the 2^nd Defendant through the Director Database Department of the 2^nd Defendant on the 9^th of June, 2009 who raised objection to the content of the letter he wrote and asked him to write another letter. And he then wrote another letter dated the same 5^th of June, 2009 which was received by the 2^nd Defendant (NIMC) on the 10^th of June, 2009. The Claimant averred that the Director General of the 2^nd Defendant raised objection to the content of this second letter. And he was asked to write another letter which the Director General dictated the content to him. This third letter was equally dated 5^th June, 2009 and was received on the 15^th of June, 2009. This 3^rd letter was admitted in evidence as Exhibit.

The Claimant maintained that while he was hoping for a positive response to this letters from the 2^nd Defendant, he was informed by a security man in the service of the 2^nd Defendant that the Director General of the 2^nd Defendant had instructed that the (Claimant) should not be allowed in the 2^nd Defendant’s Headquarters from Wednesday, 29^th July, 2009 that he had been deployed out of the National Headquarters of the 2^nd Defendant that he should proceed to his new post. The Claimant maintained that the real reason for this was that he was seen as the leader of the staff who wrote the letter.

The Claimant averred further that he wrote a letter for redress to the Chairman of the Federal Civil Service Commission in Exhibit A12 dated 20^th August, 2009 through the Director General of the 2^nd Defendant and advance copies were served on the 1^st and 2^nd Defendant. The Claimant maintained that contrary to the provisions of the Public Service Rules, the 2^nd Defendant refused to forward the Claimant’s letter of 20^th August, 2009 Exhibit A12 to the Federal Civil Service Commission and he had to follow up the matter based on the advanced copies he presented to the Federal Civil service Commission.

The Claimant averred that he had been working with the Identity Database Department of the 2^nd Defendant since the creation of the 2^nd Defendant and since the year 2004 he had been working directly under the said Mr J. O Hammed. He also averred that the Federal Civil Service Commission sent a letter to the 1^st Defendant as Supervisor of the 2^nd Defendant in Exhibit A13 dated 4^th December, 2009. At paragraph 27 of the Statement of fact (claim) the Claimant averred that:

“. . . He gathered on his follow up to the letter of the Federal Civil Service Commission to the 1^st Defendant that the 1^st Defendant wrote the 2^nd Defendant twice to present its position in respect of this matter but the 2^nd Defendant refused to comply with the said directive.”

The Claimant maintained that while waiting for a response of the 1^st Defendant to the letter of the Federal Civil Service Commission he wrote Exhibit A14 dated 30^th September, 2011 to the 1^st Defendant (SGF) a letter of appeal for redress of his victimization and oppression through suspension. He averred that when there was no response he wrote another letter to the 1^st Defendant (SGF) in Exhibit A15 to the same 1^st Defendant (SGF) on the same subject matter on the 2^nd of December, 2011. And on the 1^st of March, 2012 when nothing had been forthcoming he wrote Exhibit A16 to the same 1^st Defendant on the same subject matter. He averred that from his follow up an Exhibit A16 both 1^st and 2^nd Defendants responded to the Claimant’s letter explaining its position.

The Claimant also averred that by the end of July, 2012 it was 38 months since the arbitrary stoppage of his salary without giving him any fair hearing. He averred further that he gathered that the junior staff Disciplinary Committee set up could not hold because some members of the Committee noted that without the Commissioner of the Federal Civil Service Commission or his representative any decision reached will be invalid, that one Mr Inyang who represented his Department walked out of the Committee.

He averred that he knows that under the Guidelines for Appointments, Promotion and Discipline any decision reached by a disciplinary Committee in the absence of the Commissioner of the Federal Civil Service Commission is invalid. That he was not heard by any Committee of the 2^nd Defendant in the matter.

He also averred that several efforts to reconcile with the Director General of the 2^nd Defendant through the letters of Appeal has not yet yielded any result due to the insistence of the Head of Human Capital management of the 2^nd Defendant, Mrs Aderonke Agunbiade that the Claimant sign in the month of December, 2009 for a wrongly routed letter of Reassignment/Redeployment dated 6^th April, 2009 not routed through, his department i.e. not under flying seal (UFS) which did not get to him and he told her the date of the letter should be changed to December, 2009 so that he (Claimant) would not put himself into trouble of being seen as having absconded from work. He averred still that all his effort to get this matter resolved through the appropriate authorities had been frustrated by the Director General of the 2^nd Defendant who told him through the Head of Human Capital Management, the said Mrs Agunbiade on 16^th February, 2010 that he should continue writing to whoever he wants that nothing will come out of it.

He averred that under the Public Service Rules (PSR) Suspension from work should not be for more three (30 months, that in his case for 38 months he had been prevented from entering the premises of the 2^nd Defendant Headquarters. And by his suspension, he had been denied the opportunity of being converted and upgraded based on his earlier application upon graduation from Ambrose Alli University Ekpoma while other staff who made similar applications had since been interviewed, converted and upgraded by the 2^nd Defendant, this at paragraph 41 of the Statement of facts and 42 of the Claimant’s Witness Statement on Oath.

He averred further that by the Public Service Rules he would have written two promotion examinations which would have taken him to Senior Administrative Officer on grade level 10 in 2012. He averred that the 2^nd Defendant had on 28^th December, 2009, or thereabout absorbed the inherited staff of the defunct Department of National Civic Registration and have since issued letters to them. And that he had been unable to service 2 loans he took while in the employment of the 2^nd Defendant due to the stoppage of his salary. And despite getting his lawyer to write the Defendants to recall him, the Defendants had refused to recall him.

CASE OF THE DEFENDANTS

It is the case of the 2^nd Defendant, (Here, the 1^st Defendant did not file a Defence) that the Claimant is not being owed any salaries as he was paid his salaries at all material time and in particular, from May, 2009, the date of his suspension to December, 2009 being the effective date his appointment was terminated. The 2^nd Defendant maintains that the National Identity Management Commission Act of 2007 established to reform the Identity sector. The Act repealed the Directorate for National Civic Registration (DNCR) Act of 1979 and vested the assets and liabilities of the former DNCR including human resources in NIMC.

The 2^nd Defendant maintains that the Claimant was a Clerical Officer on GL 05 with it having been inherited from the defunct DNCR. The 2^nd Defendant aver that the Claimant was deployed via an internal memo dated April 6^th, 2009 to the Bwari Area Council that the said memo was copied to the Director, Identity Database being the Director of the Department under which the Claimant was working with the Director General of the Commission and the Coordinator FCT NIMC, office being the receiving office. That the Claimant refused to collect the posting letter and persistently refused to proceed on posting based on the report from the FCT Coordinator. That the Claimant was queried 2 weeks after the redeployed on 24^th April, 2009 for refusing to proceed on posting and was giving till the close of work on the same day to respond why disciplinary action should not be taken against him for refusal to accept posting punishable under the (PSR) 030301 (b). That the Claimant refused to collect the query. And he was suspended for acts of misconduct by the internal memo dated May 7^th, 2009 pending the referral and determination of his case to the Junior Staff Disciplinary Committee and the Claimant, again refused to collect the letter of suspension.

The 2^nd Defendant maintained that on the 28^th of April, 2009 a stakeholders meeting was held to deliberate on various issues emanating in the Commission and among the staff. That the stakeholders comprised of the Union Executives in the Commission, members of the old Executives of the defunct DNCR, members of the concerned staff Group two representatives of each Department in the Commission, and former Secretary of the DNCR including the Claimant. That among issues deliberated upon was the issue of redeployment wherein the Claimant informed the meeting that he believes his redeployment was born out of his “activities”, and that he will not accept the posting letter and that the only authority he recognises is the Federal Ministry of Internal Affairs.

The 2^nd Defendant averred that on the 5^th of June, 2009, the Claimant wrote an appeal letter to the Director General (Exhibit A) claiming that communication gap and misunderstanding of the official channelling or routing had stopped some letters from reaching him. He asked that his response should not be misconstrued for arrogance, disobedience or insubordination and appealed for the restoration of his salary. That on the 19^th of May, 2009, the Claimant’s several acts of misconduct were tabled before a duly constituted Junior Staff Disciplinary Committee and after due consideration, it was magnanimously resolved that the Head, Human Capital Management should explore the possibility of breaking the communication gap allegedly the Claimant by delivering the letter of redeployment to the Bwari Area Council office of NIMC through his immediate Supervisor. That the Junior Staff Disciplinary Committee further resolved that if the Claimant accepted the letter and proceeded on posting, his salary should be reinstated, and if he failed to accept the letter, the provisions of the Public Service Rules on misconduct should be applied against him. That the decision of the Junior Staff Disciplinary Committee meeting of 19^th May, 2009 was communicated to the Claimant by a letter dated 10^th June, 2009, but the Claimant refused to take advantage of the opportunity given to him to show remorse to end the saga of his several acts of misconduct by refusing to collect the letters of deployment and query.

The 2^nd Defendant also maintained that the Director, Identity Database Department invited the Claimant shortly after he refused to accept his redeployment letter and advised him in the presence of other staff on the essence of his redeployment exercise, telling him not to view it as a bad development but he should rather embrace it and proceed to the designated place to develop and make the place a better place, but the Claimant bluntly, refused and told the Director that the posting was being done to get him out of the Headquarters, knowing that he intended to contest for the Union’s Chairmanship.

The 2^nd Defendant also maintained that four months after the initial decision of the Junior Staff Disciplinary Committee to route the Claimant’s posting letter through his immediate Supervisor following his claim that it was the reason he did not receive same, the Committee at its duly constituted sitting of 29^th October, 2009 took the long overdue decision to dismiss the Claimant from service in ex?

The Defendant also maintained that the decision to terminate the appointment of the Claimant from service was duly communicated to him by a letter dated 30^th December, 2009. The Claimant however refused to accept same and the said dismissal letter was sent by courier to his last known address in line with the extant rules. But the letter was returned with the return notice that the “consignee refused to collect the shipment”.

THE CROSS EXAMINATION OF WITNESSES

At the cross examination of the Claimant by the 2^nd Defendant the following question and answers ensued:

Q: You wrote letters to the SGF in Exhibit A8, A12, A14, A15 and A16, what has the response?

ANS: As to A8, I was a signatory here. So the reply could not have come to me, but I heard NIMC acted in line with the appeal.

Q: What did NIMC act on?

ANS: The staff of the DNCR were issued with offer of appointment in line with the approval of the SGF to NIMC when that was done I was already suspended.

Q: Were you offered an Appointment by NIMC?

ANS: In line with Public Service Rules the answer cannot be Yes or No.

Q: Do you have any letter of employment from NIMC?

ANS: I do not have as I was already suspended.

The Claimant in addition called a subpoenaed witness who gave evidence under oath in Chief and was cross examined thereafter. He told the Court his name as Ahmed Jimoh Olaniyi. He told the Court he was employed by the Federal Civil Service Commission in 1992 and that he knew the Claimant was employed in the DNCR in 2002 and deployed to the division where he worked. That in the year 2007 the NIMC was created and it took over NIMC. He said around 2009 he heard a rumour that the Claimant who was then his subordinate had been transferred and queried and suspended. That by the nature of the Civil Service, there were rules and ethics guiding the operation of every civil servant. And one of such ethics he said was under flying seal UFS, which presupposes that any letter or memo is coming from a Ministry, Department or Agency it will be sent to the accounting officer who will in turn minute it to the Director of the relevant Department. If it had to do with any staff the Director of such Department would minute same to the Supervisor of that officer who is expected to hand it over to the staff in question, that he did not receive any such letter to the effect of query, transfer or suspension. That as the Supervisor of the Claimant all he could say was that he was not informed officially. CW2 then identified Exhibit B stating that he was the Author; Exhibit B being the internal memo dated 5^th of February, 2009 co-opting the Claimant into the CW2’s supervision.

Under cross examination CW2 told the Court that the rumours he heard were about the transfer of the Claimant who was working under him. He admitted that he (CW2) worked in NIMC until he was transferred to the office of the Head of Service of the Federation in June, 2009. He told the Court he was offered a letter of employment by NIMC which he accepted. But NIMC decided that those of its staff who were transferred to the office of the Head of the Civil Service of the Federation should go.

He was asked by Counsel to the 2^nd Defendant:

Q: Are you aware of the Claimant was offered employment by NIMC?.

He answered: He was not.

The cross examination ended, the 1^st Defendant did not cross examine and the Claimant did not re-examine. At that point Counsel to both 1^st and 2^nd Defendant informed the Court that they will not be calling any witnesses and the case adjourned for adoption of final written addresses. At this juncture, it is worthy of note that Counsel for the 1^st Defendant had told the Court that they were aligning with the Defence of the 2^nd Defendant.

THE WRITTEN ADDRESS OF THE PARTIES

In the Claimant’s final written address the following issues were formulated for determination:

Whether the Statement of Defence of the 1^st and 2^nd Defendant in this case were abandoned hence the case put forward by the Claimant is unchallenged?
Whether the suspension and subsequent termination of Appointment of the Claimant by the 2^nd Defendant is lawful.
Whether the Claimant is still a staff of the 2^nd Defendant hence entitled to his monthly salary.
Whether the Claimant is entitled to upgrade and conversion to Administrative officer on grade level 8 notionally from 2006, promotion to grade level 9 notionally from 2009 and promotion to grade level notionally from 2012.

By way of response, the 2^nd Defendant formulated a sole issue for determination.

Whether the Claimant was a staff of the 2^nd Defendant at any time.

To this, the Claimant filed a reply on points of law. In the arguments of the 1^st issue for determination by the Claimant, whether the Statement of Defence of the 1^st and 2^nd Defendant in this case were abandoned hence the case put forward by the Claimant is unchallenged?

Here, the Claimant pointed out that both Defendants filed Statements of Defence to the Claim of the Claimant but that both Defendants did not call witnesses. The Claimant maintained that the implication of a Statement of Defence not supported by testimony of witness is that by law such Statement of Defence is deemed abandoned. He submitted that both Statements of Defence were to be deemed abandoned and evidence presented by the Claimant is unchallenged citing the case of ALHAJI MUHAMMAD MAIGARI DINGYADI & ANOR V. ALIYU MAGATAKARDA WAMAKO &ORS (2008) LPELR – 4041 (CA) at page 39 – 40 para G – E. and JOLAYEMI V. ALAOYE (2004) 12 NWLR (PT. 887) 322 at 340.

Now, even though the 1^st and 2^nd Defendant did not lead evidence, it is clear to the Court that the action they took was not to concede the case to the Claimant as a final written address was filed. And though in that address filed by the 2^nd Defendant this 1^st issue raised by the Claimant was not addressed or responded to, I find that it cannot be wholly claimed as Claimant through Counsel has done that the averments in the Defendants’ pleadings must be deemed abandoned. I would rather treat this recourse of the Defendant as being that they rested their case on that of the Claimant. In the case of NEWBREED ORGANIZATION LTD V. ERHOMOSELE (2006) 5 NWLR (PT. 974) 499 SC. Ogbuagu J.S.C as he was held:

“. . . I also note that at the close of the Plaintiff’s/Respondent’s case, the learned Counsel for the Appellant proceeded to address the Court. In other words, he rested the Appellant’s case on the case/evidence of the Respondent. Such a stance has been described or regarded as a legal strategy and not a mistake, see AGUOCHA V. AGUOCHA (2005) 1 NWLR (PT. 906) 165 at 184 – per Salami JCA, citing the case of AKANBI & ORS V. ALAO &ANOR (1989) 3 NWLR (PT. 108) 118 also reported in (1989) 5 SCNJ 1 . . .”

Also, in the case of MEZU V. C & C.B (NIG) Plc (2013) 3 NWLR (PT. 1340) 188 SC Chukwuma – Eneh J.S.C observed:

“The Defendant 1^st Respondent’s Counsel Chief Ugolo at the close of the Plaintiff’s case has rested his case on the Plaintiff’s case by urging that this procedure could be adopted where any of the following conditions exist to wit:

a)That the Plaintiff has not made out any case for the Defendant to answer, or
b)That the Defendant admits the facts of the case as stated by the Plaintiff, or
c)That the Defendant has a complete answer in law to the Plaintiff’s case (see AFOMAJA V. COMMISSIONER OF EDUCATION & ORS (1995) 8 NWLR (PT. 411) 69 at 81 . . .”

In determining this fist issue formulated by the Claimant, I hold that it cannot be said, in the light of the above cited authorities that the Defendants had abandoned the Defence. Moreso, both Defendants did cross examine the Claimant when he testified and the 2^nd Defendant still cross examined the CW2 (the subpoenaed witness). I hold further still that the recourse of the Defendant was a mere legal strategy. See NEWBREED ORGANIZATION V. ERHOMOSELE (supra).

I shall now proceed to consider issues 2 and 3 together with the sole issue formulated by the Defendant.

As to the 2^nd issue formulated by the Claimant, whether the suspension and subsequent termination of appointment of the Claimant by the 2^nd Defendant is lawful. Here Claimant through Counsel relied on the case of OLARENWAJU V. AFRIBANK (2001) 13 NWLR (PT. 731) 691 at 705 referred to paragraphs 4, 5 and 6 of his amended Statement of Claim, that the Claimant was employed by the Federal Ministry of Internal Affairs on 24^th July, 2002, that he was deployed to the DNCR on 5^th November, 2002 and that his Appointment was confirmed in the official Gazette of the 13^th December, 2007, on 1^st November, 2004. The Claimant then referred to paragraph 4 of the amended Statement of Defence where the 3^rd Defendant had averred that

“(4) That the Claimant was a Clerical Officer GL. 05 with the 3^rd Defendant having been inherited from the DNCR”

The Claimant referred to Exhibit A1 and A2 (his appointment letter) and stated it showed clearly his appointment was subject to terms and conditions laid down by the Federal Republic of Nigeria. He then submitted that his employment was protected by statute and urged the Court to so hold, citing IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005) 24 NSCQR 63 at 89 paras. F – G and OLUFAGBA V. ABDUL – RAHEEM (2009) 40 NSCQR page 684 at 762 – 763. He submitted, based on these cases that with respect the appointment of the Claimant being one protected by statute can only be terminated in accordance with the statute.

At issue 3, whether the Claimant is still a staff of the 2^nd Defendant hence entitled to his monthly salary. Here the Claimant submitted that it is settled law that once the dismissal of a Civil Servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still is a civil servant. Counsel relied on Part V Paragraph 10 (ii) of the Guidelines for Appointments, Promotions and Discipline in Exhibit A22 which provides:

“If disciplinary proceedings against such an officer results otherwise than in his dismissal, the whole of the remuneration withheld from him shall be restored to him when the final decision is taken”

In response to these the 2^nd Defendant in arguing the sole issue it formulated for determination whether the Claimant was a staff of the 2^nd Defendant at any time. Here 2^nd Defendant posited the question whether the Claimant by the Act setting up the 2^nd Defendant has met the conditions that qualifies him to become a staff of the 2^nd Defendant. The 2^nd Defendant stated that to determine this question Section 32 (3) of the NIMC Act CAP 23 of 2007 is the legal compass to locate the true position of the law that section provides:

“As from the commencement of this Act, any Director, Employee, Staff or Officer who immediately before the commencement of this Act holds office in the Department of National Civic Registration (hereinafter referred to as the Department) existing before the commencement of this Act, and who have been made an offer by the Commission shall be deemed to have been transferred to the Commission established under this Act on terms and conditions no less favourable than those obtaining immediately before the commencement of this Act, and service or employment in the Department shall be deemed to be service or employment in the Commission established under the Act, and service or employment.” Counsel then stated that from a reading of the section it clearly showed that for a person to be known as a staff of the 2^nd Defendant that individual must have been made an offer by it. That under cross examination the Claimant admitted that no offer was made to him nor a letter of employment issued to him. The 2^nd Defendant then submitted that the letter of employment is sacrosanct in regulation of employment matters. That the reason for the submission being that in an action for wrongful dismissal, the Claimant must not only plead that he was employed by the Defendant but must produce evidence of the existence of a contract of service between them, citing the case of NIGERIA TELECOMMUNICATIONS LTD V. OSHODIN (1999) 8 NWLR 528.

In the reply on points of law the Claimant submitted that the formulation of the 2^nd Defendant’s sole issue in its written address is completely different from the Defence of the 2^nd Defendant. Counsel at paragraph 2.1 and 2,2 of the Reply stated that the 2^nd Defendant cited section 32 (2) of the National Identity Management Commission Act, 2007 to argue that for the Claimant to be a staff of the Commission apart from being a staff of the defunct Department of National Civic Registration, he must also show that he had been made an offer by the Commission. The Claimant contended that the law is that facts admitted need no further proof that the fact that the Claimant is a staff of the 2^nd Defendant is a fact that had been admitted by the 2^nd Defendant. He referred to the Claimant’s averment in paragraph 25 of the Statement of Fact (Claim):

“25. The Claimant avers that he has been working with the Identity Database Department of the 2^nd Defendant since the creation of the 2^nd Defendant and since the year 2004 he had been working directly under Mr J. O Hammed.”

Counsel also referred to paragraph 2 of the amended Statement of Defence of the 2^nd Defendant where it is averred that.

“2. That (2^nd) Defendant admits paragraphs 2, 3, 4, 20, 25, 28, 31 of the Statement of Claim and denies paragraphs 1, 5, 6, 7, 8, 9, 10, 12, 13, 15, 16, 17 . . .”

Counsel stated that the 2^nd Defendant admitted paragraph 25 of the claim that throughout the Statement of Defence of the 2^nd Defendant nowhere was it alleged that the Claimant was not its staff. Reference was also made to paragraph 4 of the amended Statement of Defence where the (then 3^rd Defendant) now 2^nd Defendant stated:

“4. The Claimant was a Clerical Officer on GL 05 with the 3^rd Defendant having been inherited from the defunct DNCR.”

Counsel for the Claimant then stated that the 2^nd Defendant having admitted that the Claimant is a Clerical Officer on GL 05 in its employment in paragraph 4 of its Statement of Defence has relieved the Claimant of the burden of proving that he is a staff of the 2^nd Defendant citing AKANINWO & ORS V. NSIRIM & ORS (2008) LPELR – 321 (SC) pg. 50, paras D – E.

COURT’S FINDINGS OF FACT

In the course of hearing the matter and in the course of writing this judgment, the following have become apparent as well settled facts arising out of the proceedings.

The Claimant was employed by Exhibit A1 on the 24^th of July, 2002 by the Federal Ministry of Internal Affairs, now Ministry of Interior. About 4 months after he was by Exhibit A2 deployed to the Department of National Civic Registration (now NIMC) the 2^nd Defendant. By Exhibit A3 the official Gazette of 13^th December, 2007, his appointment was gazetted. By Exhibit A3 dated December, 2007 he was given provisional approval to undertake a part – time B.Sc degree programme in Business Administration by the Ministry of Interior, 5 years after he was employed.
In the same year 2007 the DNCR became NIMC by virtue of the NIMC Act of 2007. By the admission of the 2^nd Defendants at paragraphs 3, 4, 5, 6, 7 and so forth of the amended Statement of Defence was among staff inherited from the old DNCR.
By the admissions in (2) above, the Claimant was therefore a staff of the 2^nd Defendant having been on secondment from the federal Ministry of Interior.
It is a fact that the Claimant was posted to the NIMC Area office at Bwari between April and May 2009. By the Claimant’s own averments from his witness statement on oath that upon his discovery that his May, 2009 salary was not paid, he also discovered that he had been transferred from the Headquarters of the 2^nd Defendant and he had also been suspended because he refused to proceed on the transfer. That he was told when he made enquiries by his immediate boss Mr J. O Hammed who testified as CW2 that he was not aware of such transfer and suspension. By the Claimant’s averments, on the 28^th of May, 2009 he went to the office of the Discipline schedule offices of the 2^nd Defendant to collect the letters of transfer query and suspension but he was told that the matter had been forwarded to the Junior Staff Disciplinary Committee. That it was on the same 28^th May, 2009 that he saw for the first time the letters of transfer, query and the letter of suspension and he was not allowed to collect the letters by the Head of Human Capital Management of the 2^nd Defendant, and the Discipline schedule officer in the office of the 2^nd Defendant.
The Claimant wrote several letters in June, 2009 to the Defendant in Exhibit A9, A10 and A11 all dated 5^th June, to the 2^nd Defendant, all similarly headed: An Appeal for understanding; of varying lengths but with the same theme of contrition.
He also averred he was denied entrance into the 2^nd Defendant’s premises in and around and from the 29^th July, 2009. He also tendered and relied on several other letters to the Chairman Federal Civil Service Commission in Exhibit A12 dated 20^th August 2009 headed: An Appeal for redress over my victimization and oppression through suspension from office effected by NIMC without allowing (sic) prove, fair hearing or defence of alleged misconduct. He also wrote similarly headed letters to the 1^st Defendant Secretary to the Government of the Federation in Exhibits A13 dated 4^th December, 2009, A14 dated 30^th September, 2011, A15 dated 2^nd December, 2011 headed: Gave my soul and similarly headed like the others, and Exhibit A16.
The Claimant went on to make further averments around these and every other Exhibit he tendered. I went through the cross examination of the Claimant and the Claimant was asked thereat what the response to Exhibit A8, A12, A14, A15 and A16 were “He answered that: As to A8; I was a signatory here. So the reply could not have come to me, but I heard NIMC acted in line with the Appeal” He was questioned further:

Q: What did NIMC act on?

ANS: The staff of DNCR were issued with offer of Appointment letter in line with the approval of the SGF.

Q: Were you offered an appointment by NIMC.

ANS: In line with the Public Service Rules the answer cannot be yes or no.

Q: Do you have any letter of employment from NIMC?

ANS: I do not have as I was already suspended.

That was the last question on the cross examination of the Claimant, the Claimant did not ask questions or re-examine.

It is fact that the Claimant did not ask questions on the back and forth regarding the Claimant’s disciplinary disputes with the 2^nd Defendant.
The case of the 2^nd Defendant is that the Claimant is not its staff having not been given a letter of employment or Appointment by it i.e. NIMC. This fact is uncontroverted by the Claimant.

COURT’S DECISION

In the course of writing this judgment, I had cause to mull over the Public Service Rules (PSR) (the 2008 corrected version as relied on by the Claimant as Exhibit A21). At Chapter 2 of the Public Service Rules, at Section 5 dealing with transfers and secondments at Rule 020501 (a) and (b).

a)Transfer is the permanent release of an officer from one scheduled service to another or from one class to another within the same service.
b)Secondment means the temporary release of an officer to the service of another Government approved body or any recognized international organization or body for a specified period.

By Rule 020502 the procedures applicable for transfer and secondment (1) Application for transfer/secondment to posts graded G.L 06 and below shall be determined by the Ministry/Extra – ministerial office of the Applicant’s choice.

(ii) . . ., (iii) . . ., (iv) secondment of an officer to the service of another Government, or approved body or recognised international Organisation at his own request shall be for a maximum period of two years in the first instance. After which the officer must apply for extension, seek for transfer or return to his former post. All extensions must be approved by the appropriate Committees and the Federal Civil Service Commission. The total period of such secondment must not exceed (4) years.

(V.) If it is in the public interest to second an officer to the service of another Government approved body or recognized international Organisation, the period of secondment shall not be limited and the officer shall continue to hold his substantive post and be entitled to increment and promotion and will be treated as having been on special duty.

(VI.) During the period of such secondment the beneficiary organization shall be responsive for the officer’s personal emoluments.

Now, the case of the 2^nd Defendant is that the Claimant is not its staff. This was the thrust of its cross examination of CW1 and CW2 to the effect that the Claimant was not given a letter of offer of employment by the 2^nd Defendant to which both witnesses for the Claimant admitted that the Claimant was not given such letter of Offer of Appointment.

The 2^nd Defendant further placed emphasis on the provision of section 32 (3) of the National Identity Management Commission Act CAP 23 of 2007. It had argued at paragraph 3.0 that the Claimant in proof of his case had alluded to the fact that he was posted to the 2^nd Defendant during the transition period of the 2^nd Defendant, that this was the major reason why the Claimant is in the belief that he is a staff of the 2^nd Defendant. That the proper question to ask was whether the Claimant has by the Act setting up the 2^nd Defendant met the condition that qualifies him to become a staff of the 2^nd Defendant. The section provides:

The 2^nd Defendant stated that a reading of the above section clearly shows that for a person to be known as a staff of the 2^nd Defendant that individual must have been made an offer by it, that both Claimants’ witnesses agreed that no offer letter of employment was issued to the Claimant in this case. It was submitted further for the 2^nd Defendant that the said letter of employment is sacrosanct in the regulation of employment matters. In that in an action for wrongful dismissal, the Claimant must not only plead that he was employed by the Defendant, but must produce evidence of existence of a contract of service between them citing NIGERIAN TELECOMMUNICATIONS LTD V. OSHODIN (1999) 8 NWLR.

In the Claimant’s reply on points of law in response to the 2^nd Defendant’s submission, it was submitted that the formulation of the issues whether the Claimant was a staff of the 2^nd Defendant at any time is completely different from the Defence of the 2^nd Defendant in its Statement of Defence where it had also relied on section 32 (2) of the NIMC Act the Claimant had at paragraph 2.2 stated the law is that facts admitted need no proof. That the law is that facts admitted need no proof. That the fact that the Claimant is a staff of the 2^nd Defendant needs no further proof and referred to the pleadings of the 2^nd Defendant where this fact had been admitted.

I must at this stage of this judgment state emphatically that facts and admissions of facts for whatever they are worth in adversarial situations such as in this case are always to be regulated or governed by the provisions of the law governing such facts whether admitted or not. Here, I have gone in to the bare facts of the case and it is a fact that the Claimant was the Federal Ministry of Interior (Internal Affairs) per Exhibit A2.

Now, the rules from the Public Service Rules even placed before this Court, on seconded staff I have laid out earlier in this judgment. The 2^nd Defendant’s reliance on section 32 (2) of the NIMC Act does not affect its admission that the Claimant was a Clerical Officer on G.L 05 having been inherited from the defunct DNCR. I find and do hold that this admission alone makes the reliance of the 2^nd Defendant on the provision of S. 32 of the NIMC Act appropriate.

Having so held, I shall now consider in the light of the findings of fact in the suit and the provisions of the law which heads of claim in the Claimant’s suit succeed or not.

In the first head of claim, I find and do hold that the Claimant’s claim succeeds as the 2^nd Defendant did not defend the averment by the Claimant that his suspension and subsequent termination of appointment by the 2^nd Defendant is null and void. It is accordingly thereby so declared.

Having laid out the provisions of Rule 020502 (v) and (vi) of the Public service Rules 2008 and the Claimant having laid out breaches in the process leading to the suspension of the Claimant and subsequent termination which were not defended by the 2^nd Defendant and must not be taken as true. It is hereby declared that the stoppage of the payment of the Claimant’s salary by the 2^nd Defendant is illegal having been done in violation of the Civil service Rules.

Regarding the 4^th head of claim, and having reproduced the provision of section 32 (30 of the NIMC Act, the upshot of which is; any staff whom NIMC did not make an offer shall be redeployed by the Head of Civil Service of the Federation. It is pursuant to this provision and that of Rule 020502 (1) of the PSR which provides that Applications for transfer/secondment to posts graded G.L 06 and below shall be determined by the Ministry/Extra ministerial office of the Applicants.

Here, I hold that as the Claimant had opted for secondment to the DNCR now NIMC, it is for NIMC to retain or to second or desecond the Claimant as the case maybe. See the Court of Appeal decision in ACHU V. CIVIL SERVICE COMMISSION, CROSS RIVER STATE (2009) 3 NWLR (PT. 1129) 475 at 510 – 511, G – B. I hold further that by the holding that the 2^nd Defendant second or desecond the Claimant. Any situation of imposing or appearing to force the Claimant on the 2^nd Defendant would be hereby avoided in the face of the clear provisions of the laws cited and upheld above as applicable in this case. The decision to retain the Claimant or not is not one the Court would be drawn into. And I so hold, it is up to the 2^nd Defendant.

Regarding the 5^th head of claim the 2^nd Defendant is hereby ordered and directed to restore all the rights of the Claimant to him as staff of the 2^nd Defendant.

As to the 6^th head of claim, I refrain from making any order here having in mind the order I made in the 4^th head of claim.

Pursuant to the provision of Rule 020502 9vi) of the PSR which provides that during the period of such secondment, the benefitting Organisation shall be responsible for the officers’ personal emoluments. In view of this and the provision of 020502 (v) of the said PSR that the seconded officer shall continue to hold his substantive post and be entitled to increment and promotion and will be treated as having been on special duty. I find and do hold that the 2^nd Defendant should pay all outstanding salary and arrears of the Claimant to him from May, 2009 till the date of this judgment per head 7.

Now with regard to the part of the claim in head 7 dealing with promotion arrears and that in head dealing with upgrading and conversion of the Claimant from Clerical Officer on grade level 5 to Administrative officer on grade level 8 and notionally from 2006. And those in the 9th and 10th heads of claim, the Court is quite mindful of the provisions of Rule 020701 of the Public Service Rules on promotion. At paragraph (e) of the Rule, it is provided:

“All promotions are subject to satisfying minimum requirements declared by the Federal Civil Service Commission and the availability of vacancies”

So on whether a Court will grant relief of promotion to an employee the Court of Appeal held in ABENGA V. B.S.J.S.C (2006) 14 NWLR (PT. 1000) 610 at 622 para F that promotion is neither automatic nor as of right and as such the relief for promotion in that case failed even though the appeal was unanimously allowed. For the above reasons the claims in part of head 7 and those in heads 8, 9 and 10 do not succeed.

Judgment is entered accordingly.

There are no awards as to costs

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HON. JUSTICE E. D. E. ISELE

JUDGE