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UGIAGBE v. A.G EDO STATE & ORS (2021)

UGIAGBE v. A.G EDO STATE & ORS

(2021)LCN/15751(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, June 25, 2021

CA/AK/330/2019

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

KENNETH BOBBY UGIAGBE, ESQ. APPELANT(S)

And

1. ATTORNEY GENERAL OF EDO STATE 2. EDO STATE CIVIL SERVICE COMMISSION 3. THE GOVERNOR OF EDO STATE 4. OLUWOLE IYAMU, ESQ. 5. MISS DEBORAH ENAKHIMION 6. S.O. OKO-OSE, ESQ. RESPONDENT(S)

 

RATIO

WHETHER OR NOT LEAVE OF COURT IS REQUIRED TO FILE AN APPEAL FROM THE NATIONAL INDUSTRIAL COURT TO THE COURT OF APPEAL

Section 9 (1) of the National Industrial Court Act, 2006, provides that subject to Subsection 2, no appeal shall lie from the decision of the Court to the Court of Appeal or any other Court except as may be prescribed by this Act or any other Act of the National Assembly.
Section 9 (2) of the Act provides that appeal from the decision of the Court shall lie only as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria.
The provision of Section 9 (2) of the National Industrial Court Act is entrenched in Section 243 (2) of the Constitution of Nigeria, 1999 (as amended) which provides:
“An appeal shall lie as of right to the Court of Appeal on the question of fundamental right as contained in Chapter IV of this Constitution as it relates to matters upon which National Industrial Court has Jurisdiction”.
The Constitution also gives a party right to appeal as of right from the decision of the National Industrial Court in criminal matters in respect of which the Court is given jurisdiction by virtue of Section 243 (5) of the Nigerian Constitution, 1999 (as amended).
PER ABUNDAGA, J.C.A.

WHETHER OR NOT ALL COURTS ARE BOUND TO CONSIDER ALL ISSUES SUBMITTED TO IT FOR CONSIDERATION

​It is settled law that with the exception of the final Court in the land, all other Courts, Court of trial and appellate Court are bound to consider all issues submitted to it for consideration. See Ahmed V. Mohammed (2009) LPELR-8739 (CA), p 23, paras D-F, Tidex & (Nig) Ltd V. Maskew & Anor (1998) LPELR-168 (CA), Pp. 37-38, paras C-A, University of Agriculture, Makurdi V. Jack (2000) LPELR-10620 (CA) Pp. 27-28 paras F-C.
Arguments were robustly canvassed on these issues before the lower Court. Therefore, Section 15 of the Court of Appeal Court Act, 2004 empowers this Court to step into the shoes of the trial Court to do the needful.
PER ABUNDAGA, J.C.A.

DEFINITION OF THE TERM “CONFESSION”

Section 28 of the Evidence Act, 2011, defines Confession thus:
“A confession is an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
In the case of FRN V. Iweka (2011) LPELR–9350 (SC) P. 451 Paras B–E, it was held that the conglomerate definitions assigned to the words/phrases, “Confession” or “Confessional Statement” by the Evidence Act and the case law refer to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. The following cases were referred to:
Saidu V. The State (1982) 4 (SC) 41 at 56, Ikemson & Ors V. The State (1989) 3 NWLR (Pt. 110) at 476, Akpan V. The State (1990) 7 NWLR (Pt 160) 101 at 109, Nwaebonyi V. The State (1994) 5 NWLR (Pt 343) 138 at 149, Edighere V. The State (1994) 5 NWLR (Pt 344) 312 at 321, Kasa V. The State (1994) 75 NWLR (Pt 344) 269 at 284–288.
PER ABUNDAGA, J.C.A.

THE POSITION OF LAW WHEN A STATUTE DIRECTES THAT A CERTAIN PROCEDURE BE FOLLOWED BEFORE A PERSON CAN BE DEPRIVED OF HIS RIGHT

In the case of Adeniyi V. Governing Council of Yabatech (1993) LPELR-128 (SC), Pp 42-43 Paras F-A, it was held that in all cases, the general principle is that where the contract of service is protected by statute and the removal of plaintiff is predicated upon compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void.

​The case of Idoniboye-Obu V. NNPC (2003) LPELR-1426 (SC) defines “statutory provisions” as meaning, what it says; namely the provisions of a statute or, by extension of a statutory instrument. See also the case of PHCN V. Offoelo (2012) LPELR-19717 (SC) Pp. 41-42, paras B-D.

In yet another decided case that gives light in a situation such as in this appeal, this Court, in the case of NJC V. Senlong & Ors (2010) LPELR-4582 (CA) Pp. 51-52, paras E-B, held that when a statute directs that a certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such a procedure must be strictly followed, otherwise the Court will declare void any act done not in accordance with the prescribed procedure. See also Ahmed V. Abu & Anor (2016) LPELR-40261 (CA) P. 26, paras A-E.
PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court, holden at Akure delivered by Hon. Justice A. Adewemimo on 11th April, 2019, in Suit No. NICN/BEN/18/2017.

In brief, the facts leading to this appeal can be summarized as follows:
​The Appellant before the unfortunate events that led to his dismissal and hence, this appeal was a staff of the Ministry of Justice in the Citizens’ Rights Department under the Edo State Civil Service. He was alleged to have received the sum of One Million Naira from a relation of some accused persons with the aim of perverting the course of justice, and was accordingly issued a query in which he was requested to answer within 24 hours. However, before the expiration of the 24 hours, and without receiving the Appellant’s answer to the query, he was placed on indefinite suspension without pay by the Respondents. He was at that time an officer on Grade level 10. A disciplinary committee was subsequently constituted to investigate the allegations against him as contained in the query that had been issued to him. The committee completed its assignment and submitted its report, upon which he was dismissed. The Appellant felt displeased with the dismissal and decided to approach the National Industrial Court (hereinafter to be referred to as “the lower Court”) before which he sought the following reliefs vide his complaint which was filed on 15th August, 2017:
a. A DECLARATION that the indefinite suspension without pay of the Claimant by the 4th Defendant and subsequent dismissal of Claimant vide letter dated 17th May, 2017 from Edo State Civil Service by the 4th Defendant constitutes/constituted an unfair dismissal without any factual basis at all and as a result wrongful, unlawful, unconstitutional, illegal and invalid.
b. A DECLARATION that the setting up/constitution of the Disciplinary Committee by the 4th Defendant and the subsequent purported findings of the Disciplinary Committee and its report/recommendations is unlawful, unconstitutional, illegal and invalid.
c. A DECLARATION that the actions of the 2nd, 4th, 5th and 6th Defendants herein jointly and severally in procuring the punishment of dismissal of the Claimant from Edo State Civil Service without any factual basis in wanton breach of all principles of natural justice as well as the relevant constitutional guarantees to Claimant of due process and as shown on the facts of this case is malicious, arbitrary and constitutes abuse of office hiding under the colour of law and/or office and as such the 2nd, 4th, 5th and 6th Defendants are personally liable for such acts of abuse of their respective offices.
d. A DECLARATION that the actions of the 2nd, 4th, 5th and 6th Defendants in the circumstances presented in this case constituted a most wanton and unconstitutional application of unfair practices and bias to the direct detriment of the Claimant.
e. A DECLARATION that the 4th defendant lacks the requisite powers under the Edo State Civil Service Rules to issue and sign the letter of dismissal dated 17th day of May, 2017, issued to the Claimant being a senior officer on Grade Level 10.
f. AN ORDER setting aside the letter of dismissal dated 17th day of May, 2017, which was issued to the Claimant by the 4th Defendant purportedly on behalf of the 2nd Defendant.
g. AN ORDER setting aside the purported report, findings and recommendations of the Disciplinary Committee constituted by the 4th Defendant the content of same having not been brought to the attention of the Claimant by the Civil Service Commission (2nd Defendant herein) before acting on it as required by the Edo State Civil Service Rules.
h. AN ORDER directing the Edo State Civil Service Commission (2nd Defendant) to immediately re-instate the Claimant to his statutorily protected employment with the Ministry of Justice in the Edo State Civil Service, in all respects and for all rights and entitlements of the Claimant including his promotions, arrears of salaries (N173,610.32k monthly) and emolument to be made effective from the 26th day of October, 2016, being the date Claimant’s dismissal was made to take retrospective effect.
i. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants jointly and severally from harassing, blackmailing or subjecting the Claimant to any form of disadvantages on account of bringing this claims before this Honourable Court in pursuance of the legal rights as conferred on the Claimant by the harmonized terms and condition of service of officers in Civil Service and the Constitution of the Federal Republic of Nigeria.
j. AN ORDER OF PAYMENT OF COMPENSATORY, AGGRAVATED AND EXEMPLARY DAMAGES in the sum of N400,000,000.00 (Four Hundred Million Naira) jointly and severally against the Defendants for their actions of the wrongful dismissal of the Claimant with the resultant injustice against him, his wife, 5 young children and for the financial difficulty Claimant and his family has so far suffered.
k. OTHER RELIEF(S) in law or equity including but not limited to order for cost of this action on a full indemnity basis and injunctions as the Court is authorized to grant in line with the provisions of the Constitution of Nigeria, the provisions of the National Industrial Court Act, and under the stipulations of the National Industrial Court Rules as this Honourable Court deems just and proper in the circumstances.

​After the exchange of processes filed between the parties, the lower Court took evidence including documentary exhibits from parties. Parties also, through counsel filed final written addresses which were adopted as counsels’ final oral addresses. In his judgment, the trial Judge upheld the dismissal, with the effective date being 17th May, 2017, when he was dismissed. He also granted the Appellant, arrears of salary from October 26th, 2016 to May, 17th 2017 based on his last Grade level 10 with a further order that the sum thus awarded shall be computed and paid to the Appellant within 60 days from the date of judgment.

The notice of appeal filed on 10th July, 2019, contains 8 grounds of appeal including the omnibus ground (see pages 268–274 of the record of appeal).

The record of appeal was transmitted on 23/9/19, and deemed duly compiled and transmitted on 25/3/21.

The Appellant’s brief of argument, settled by Paul Osarenhoe, Esq was filed on 7/11/19, and deemed properly filed and served on 25/3/21. The Appellant also filed a reply brief of argument on 9/2/21 and deemed properly filed and served on 25/3/21.

​On 29/6/20, the Respondents filed a notice of preliminary objection. The Respondents’ brief of argument settled by I.O. Kadiri, filed on 29/6/2020, deemed properly filed and served on 14/7/20 and further deemed properly filed and served on 25/3/21 incorporate arguments on the substantive appeal and the notice of preliminary objection. The Appellant’s reply brief contains Appellant’s response to the notice of preliminary objection and his response to issues raised in the Respondents’ brief of argument.

At the hearing of the appeal on 25/03/21, the Appellant’s brief of argument and reply brief were adopted by Ambrose Etsenamhe Esq. who represented the Appellant. He urged the Court to allow the appeal and set aside the judgment of the lower Court and in regard to the notice of preliminary objection, he urged the Court dismiss it as same is unmeritorious.

I.O. Kadiri, representing the Respondents adopted the Respondents’ brief of argument, starting first with the aspect of it that contains argument on the notice of preliminary objection. He urged the Court to sustain the notice of preliminary objection and to strike out/dismiss the appeal. He also went on to adopt the arguments canvassed on the substantive appeal and urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

​The notice of preliminary objection seeks to terminate the appeal in limine, and as dictated by the rules of this Court and the established principle of law and practice, the notice of preliminary enjoys a place of priority in the determination of this appeal, because if it finds favour by this Court the appeal ordinarily should end there.

It is for this reason that I proceed now to determine the merit or otherwise of the notice of preliminary objection.

In the notice of preliminary objection, the Respondents urge upon this Court for an order dismissing this appeal for being incompetent upon the following grounds:
1. The Appellant’s grounds 1, 3, 4, 5, 6, 7 and 8 of the notice of appeal (in pages 269-275 of the record of appeal) were not complaint against violation of fundamental rights of the Appellant to fair hearing.
2. That the only complaint related to the Appellant’s fundamental rights to fair hearing violation is the ground 2 of the Appellant’s notice of appeal.
3. By the provision of Section 9 of the National Industrial Court Act, 2006, the Appellant can as of right (without leave of this Honourable Court), file his appeal if its complaints are only against violation of his fundamental rights to fair hearing.
4. Other grounds than complaint against fair hearing, upon which the Appellant may find it necessary to file this appeal ought to be initaiated thereafter (sic) the leave of the Court of Appeal is prayed for and granted.
5. The notice of appeal upon which this appeal is predicated was filed without prior compliance to praying the leave of this Honourable Court to so file.
6. Grounds 1, 3, 4, 5, 6, 7 and 8 were filed without prior leave of this Honourable Court being sought for and obtained.
7. Grounds 1, 3, 4, 5, 6, 7 and 8 are incompetent and same should be struck out/be dismissed with argument canvassed in their support.
8. The Appellant’s brief of argument dated and filed on 7/11/2019; through which argument in support of his appeal was filed is not signed by a known legal practitioner.
9. An Appellant’s brief of argument which is not signed/franked (sic) by a legal practitioner is incapable of this Honourable Court attention and same should be struck out/dismissed in the consideration of this appeal.

​The argument in support of the notice of preliminary objection is contained on pages 4-12 of the Respondents’ brief of argument. Counsel’s argument is anchored on Section 9 of the National Industrial Court Act, 2006. Counsel also refers the Court to Sections 254(C)(6) of the 1999 Constitution of the Federal Republic of Nigeria (3rd Alteration), Sections 243(2) and 243(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Counsel submits in effect that appeal from the decision of the National Industrial Court to the Court of Appeal lies as of right only on questions of the infringement of the fundamental right of the Appellant and in criminal matters. That in respect of the grounds all other leave of the Court of Appeal must be sought and obtained. Counsel submits that, of the 8 grounds of appeal, only ground 2 is based on alleged breach of the Appellant’s fundamental rights. That the other grounds could only be resolved by the lower Court through recourse to facts and evidence placed before the Court. He submits that the affected grounds are covered in issues 1, 3 and 4. Counsel therefore urged the Court to strike out the 7 grounds and the issues formulated from them for being incompetent. That the only surviving issue is issue 2 which is formulated from ground two which he submits is the only valid ground of appeal.

In respect of the other grounds of Respondents’ preliminary objection, which are grounds 8 and 9, counsel submits that the Appellant’s brief of argument is not properly signed or franked (SIC) by a lawyer whose name is on the roll of legal practitioners. Counsel concedes that the brief of argument was signed but the manner it is done creates doubt as to which of the Appellant’s lawyers appended his signature on the Appellant’s brief of argument. This, counsel submits is contrary to Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007, effective from 1st April, 2015. Further submits that the irregularity is fundamental as the law enjoins this Court to deem the said processes such as the Appellant’s brief of argument as improper, void and incompetent. Counsel relies onYaki V. Bagudu (2016) 29 EJSC page 1 at 20 Paras A-B, FBN Plc V. Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Ahmed V. Ahmed (2013) 15 NWLR (Pt 1377) 274 at 324-325, and Okafor V. Nweke (2007) 10 NWLR (Pt 1043)521 at 534.

​Referring further to Sections 2(1) and 24 of the Legal Practitioners Act, it is contended by the Respondents’ counsel that the law mandates compliance to ensure that processes filed in the Court are signed by a legal practitioner enrolled in the Supreme Court.

The Court is therefore urged to sustain the preliminary objection on the combined grounds that failure to seek leave before grounds 1, 3, 4, 5, 6 and 7 were filed and the consequent effect of their nullity on related issues, and the irregularity in the manner the Appellant’s brief of argument is signed/flanked, and to accordingly dismiss the appeal.

The Appellant’s argument in opposition to the preliminary objection is contained on pages 1-8 of the Appellant’s reply brief.

Dealing with the first limb of the notice of preliminary objection, counsel submits that the Respondents’ submission that he requires leave to file his appeal is misconceived and misleading.

Submits that Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), gives the Appellant the right of appeal to this Court as of right on questions of fundamental right as contained in Chapter IV of the Constitution. Refers the Court to the case of LSH & T V. H & P. S.S.S. A (2015) All FWLR (Pt 765) 340 at 346 ratio 1. Submits that in determining whether or not a ground of appeal raises issues of fundamental right, it is immaterial whether or not the words and letters “breach of fundamental Right” is specifically captured in the grounds as couched. That basing the argument on the words “breach of fundamental right” will lead to absurdity.

That whether a ground of appeal complains of fundamental right infringement will be deduced from the grounds and the particulars. Counsel specifically refers the Court to Section 243(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which gives an aggrieved party right of appeal as of right in questions bordering on fundamental rights contained in Chapter IV of the Constitution. Further contention of counsel is that the questions raised in this appeal are questions bordering essentially on breach of the Appellant’s fundamental right to fair hearing as enshrined in Chapter IV of the 1999 Constitution (as amended). Reliance is placed on the case of Stephen V. Gov. Ondo State (2015) All FWLR (Pt 801)1379 ratio 1.

He submits that grounds 1, 5, and 8 are founded on breach of the Appellant’s right to fair hearing. Ground 2, counsel submits, as conceded by the Respondents is founded on the Appellant’s right to fair hearing. He proffers no argument in support of grounds 3, 4, 6 and 7.

However, counsel submitted, assuming without conceding that not all the grounds of appeal contain complaint of the nature of breach of Appellant’s fundamental right, the four grounds (I suppose grounds 1, 5 and 8 on which he proffered arguments and ground 2 conceded by the Respondents) are sufficient to sustain the appeal. Reliance is placed on the case of Hassan V. Atanyi (2002) 8 NWLR (Pt 770) 518 ratio 14, and the case of Bwai V. U.B.A Plc (2002) 4 NWLR (Pt 758) 692 ratio 8.

On this, counsel submits that, all the Appellant’s grounds of appeal are questions of fundamental human right to fair hearing.

On the second leg of the objection, counsel submits that it is misconceived. That on the face of the brief, Appellant’s counsel, Paul Osarenkhoe, Esq. signed and flanked it and attached a copy of his receipt of payment for stamp and seal in lieu of stamp and seal. He disagrees with Respondents’ counsel submission that Rule 10(1), (2) and (3) of the Rules of Professional Conduct 2007, had been contravened. Counsel relies on the case of B.O.I Ltd V. Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (Pt 1615)220 ratio 3.

Also relied on, is the case of Williams V. Adold/Stamm Int’l (Nig) Ltd (2017) 6 NWLR (Pt 1560)1 at 8-9 ratio 9, to submit that the omission to tick beside the name of counsel did not mislead the Respondents’ counsel or Court as to who signed the process. The apex Court, counsel further posits, has held that even where there are names of more than one counsel on the process it can be affixed with the stamp and seal of one of the legal practitioners listed on the face of the process, and refers to the case of Ogunpehin V. Nucleus Venture (2019) LPELR-48772(SC). Counsel submits that this objection is one anchored on technicality, whose days are no longer here, and refers to the case of Wassah V. Kara (2015) All FWLR (Pt 769)1034 SC in which the Supreme Court admonished the Court to do substantial justice and to avoid technicalities.

RESOLUTION OF THE PRELIMINARY OBJECTION
1st Limb – That leave was not sought and obtained before the appeal was filed. Section 9 (1) of the National Industrial Court Act, 2006, provides that subject to Subsection 2, no appeal shall lie from the decision of the Court to the Court of Appeal or any other Court except as may be prescribed by this Act or any other Act of the National Assembly.
Section 9 (2) of the Act provides that appeal from the decision of the Court shall lie only as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria.
The provision of Section 9 (2) of the National Industrial Court Act is entrenched in Section 243 (2) of the Constitution of Nigeria, 1999 (as amended) which provides:
“An appeal shall lie as of right to the Court of Appeal on the question of fundamental right as contained in Chapter IV of this Constitution as it relates to matters upon which National Industrial Court has Jurisdiction”.
The Constitution also gives a party right to appeal as of right from the decision of the National Industrial Court in criminal matters in respect of which the Court is given jurisdiction by virtue of Section 243 (5) of the Nigerian Constitution, 1999 (as amended).
In effect, what these provisions translate to is that appeals from decision of the National Industrial Court lies as of right where the complaint borders on infringement of the Appellant’s fundamental human right as guaranteed under Chapter IV of the Constitution, and in criminal matters in relation to matters on which the Constitution, by virtue of Section 243 (2), has given the National Industrial Court the jurisdiction to try. That means that for complaints other than these, the Appellant must seek leave of this Court to make the appeal or those grounds of appeal to be competent.

The Appellant’s counsel submitted quite rightly in my view that in the consideration of whether a ground of appeal borders on infringement of the Appellant’s fundamental human right, it is not in all cases that there must be a direct use of the words “breach of fundamental right”. The ground of appeal together with the particulars must be read together in order to appreciate whether infact, there is indeed an alleged breach of the appellant’s fundamental right. Against the foregoing background, I have taken a critical look at all the grounds of appeal together with their particulars.

Ground one complains of an alleged breach of the provisions of the Civil Service Rules of Edo State, 2006, in the process leading to the dismissal of the Appellant.

In the particulars, the complaint inter alia is that the appellant was not given a copy of the document (Exhibit DB6) relied upon by the Respondents, that is the petition which originated the entire process. The particulars also states that the Appellant was never informed at any time before his dismissal, whether orally or in writing that he had breached the rule against “divided loyalty”.

These are enough to sustain the said ground one as one that alleges breach of the appellant’s fundamental right which does not require leave of this Court.

Ground two: The Respondents concede ground two as alleging a breach of the Appellant’s fundamental right. Aside from the Respondents’ concession, the ground complains of breach of Appellant’s fundamental right to fair hearing. The particulars further amply the alleged breach. I have no doubt in my mind that the ground and the particulars allege a breach of the Appellant’s right to fair hearing, and does not require leave of this Court to be made a ground of appeal.

Ground 5 complains that the Appellant was queried for attempting to compromise the diligent prosecution of a case but was dismissed for “divided loyalty”.

The particulars show that the Appellant was dismissed for an offence that was not formally brought against him as required by the rules in contravention of the law that, a person subject to the rules must be given details of the allegation against him in writing. This is without doubt an alleged infringement of the Appellant’s fundamental right to fair trial and hence fair hearing. Appellant does not require leave of this Court to ventilate his grievance in relation to this ground before this Court.

​However, grounds 3, 4, 6 and 8 do not fall within the perimeter of fundamental rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Having been included in the Appellant’s notice of appeal without leave of the Court are incompetent and are hereby struck out.

The question that necessarily falls due for resolution is whether the appeal can be sustained on grounds 1, 2 and 5 which I have held to be valid.

As rightly submitted by Appellant’s Counsel on the authority of Hassan V. Atanyi (2002) 8 NWLR (Pt. 770) 581, an appeal can only be wholly incompetent on grounds of failure to obtain leave, where all the grounds are held to be incompetent for one reason or the other and there is no competent ground to sustain. Where there are valid grounds, notwithstanding the incompetent grounds the appeal can be sustained.

In the instant appeal, the appeal can be sustained on grounds 1, 2 and 5, but not too fast. There is a caveat, and the caveat is that, issues formulated from the grounds were not distilled from the incompetent grounds, or in other words, the issues formulated for consideration are not inflicted by the incompetent grounds.
This is what I shall proceed to consider anon.

The Appellant formulated three issues for determination of the appeal. Issue one is distilled from grounds 1, 3, 4, 6 and 7. As earlier stated, ground one is competent, while grounds 3, 4, 7 and 8 are incompetent and were accordingly struck out.

Therefore, issue one is distilled from ground one which is valid and competent, and grounds 3, 4, 6, 7 and 8 which are invalid and incompetent. The law is trite that issues distilled from both competent and incompetent grounds of appeal are themselves incompetent and liable to be struck out, the reason being that it is not the Court’s duty to embark on discovering what arguments are proffered from the competent and incompetent grounds of appeal. On this, I rely on the following cases, to cite just a few:
1. Dr. Chris Nwabueze Ngige V. Mr. Peter Obi & Ors (2006) LPELR 12920 (CA), per Mohammad, JCA (Pp. 148-149 paras F-A).
2. Kibiya & Ors V. Rabiu (2004) LPELR-12563 (CA), per Ba’aba, JCA (Pp. 45-46, paras E-B).
3. Adelakun V. Oruku (2006) LPELR-7681 (CA) per Salami, JCA (Pp. 10-12, paras F-A).

Therefore, issue one is therefore liable to be struck out, and is hereby struck out.

​Issue four is distilled from ground 8. Ground 8, I have held is invalid and incompetent and was accordingly struck out.

Therefore, the reasoning and conclusion in respect of issue one here is hereby adopted in respect of issue four.
Issue four is also hereby struck out.

Issues two and three are distilled from grounds two and five respectively. Grounds two and five, as held earlier, are competent.

Therefore, the surviving issues are issues two and three. The appeal can be sustained on these issues, subject to the consideration of the second limb of the notice of preliminary objection, whether in favour of the Appellant or against him.

2nd Limb: That the Appellant’s brief of argument is not signed/flanked by a legal practitioner, in a proper manner to point to which of the two legal practitioners signed the Appellant’s brief of argument.
​The Appellant’s brief of argument has on it, the name of two legal practitioners and is duly signed. The names are Paul Osarenkhoe Esq. and Ambrose Estenamhe, Esq. In lieu of Legal Practitioners Seal, at the back of the brief of argument is receipt for payment of Legal Practitioners Seal issued to Osaremhoe O. Paul. It is indicative of the fact that as at the time of filing the Appellant’s brief of argument on 7/11/19, by Paul Osarenkhoe, he had paid for the seal on 29/03/19 but was yet be issued one. Had the seal been issued it would have been placed beside the names of the two counsel, a clear indication that the appellant’s brief of argument was settled by Paul Osarenkhoe raising the presumption that he signed the Appellant’s brief of argument, even though there was an omission to tick his name.
In the circumstances, will it be in consonance with doing substantial justice to hold the Appellant’s brief of argument is invalid and incompetent on the ground that the name of Paul Osarenkhoe was not ticked? This is very far from the contemplation of Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007, called in aid of his argument by the Respondents’ counsel. In the case of Williams V. Adold/Stamm Int’l (Nig) Ltd (2017) 6 NWLR (Pt. 1560) 1 at 8-9, the apex Court inter alia held that a process prepared and filed in Court by a Legal Practitioner must be signed by a Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his firm in which he carries out his practice. In the instant appeal, it is evident in the face of the process that even though there are names of two Legal Practitioners, there is a signature, and in lieu of seal the receipt for payment of a seal yet to be issued by one of them. It leaves no one in doubt, except the one fishing for fault, based on technicality that the brief of argument was settled and signed by the person whose name is supposedly affixed on it. The days of technicality are no longer here. What is in vogue is the need to do substantial justice, and I am one person who finds comfort in doing substantial justice, and not willing to sacrifice justice on the altar of base technicality.

Therefore, the appellant’s brief of argument filed on 7/11/19 and deemed properly filed and served on 25/3/21 is valid and competent, I hold.

Therefore, the notice of preliminary objection partly succeeds only to the extent that grounds 3, 4, 6, 7 and 8, and issues 1 and 4 are incompetent and are struck out. However, the appeal is competent on grounds 1, 2 and 5 and issues 2 and 3. I so hold.

​I will proceed to determine the substance of the appeal based on the surviving issues which are:

ISSUE TWO
Whether the lower Court was right when it failed to make a finding on the various critical issues bordering on breach of right to fair hearing raised by the Appellant all through the length and breadth of his case and finally in his written address.
It is submitted by Appellant’s counsel that the Court has a statutory duty to consider adequately and properly all issues placed before it, that failure to do so will lead to denial of fair hearing. Counsel refers to the case of Tanko V. U. B. A. (2011) ALL FWLR (Pt 556) 409 and Agaka V. Ayilara (2012) ALL FWLR (Pt 608) 899 at 909, ratio 17.

​Submits that the Appellant gave evidence to the effect that the 4th and 5th Respondents acting in concert concluded on the guilt of the Appellant and resolved to dismiss him even before he was heard. He referred to the language used in the query, Exhibit “KU. 05” which counsel submits shows a preconceived mindset, a definite conclusion on the guilt of the Appellant even without being heard. Further submits that it is in evidence and submission of counsel that the 4th Respondent proceeded to suspend the Appellant even before receiving or considering his response to the query issued to him. That it is also in evidence that the 5th Respondent who issued the query to him was the same person who constituted the disciplinary, and committee by signing the letter of the constitution of the committee also appointed herself a member of the committee. Submits that, these issues were addressed by the Appellant in his final written address but were not considered in the judgment of the lower Court. Viewing this default as denial of fair hearing, counsel relies on the cases of Iderima V. Rivers State Civil Service Commission (2005) LPELR-1420 (SC), LPDC V. Chief Gani Fawehinmi (1985) NWLR (Pt. 7) 300, Garba V. University of Maiduguri (1986) LPELR-1305 (SC).

​Submits further that Exhibit DB7 at pages 108-109 of the record of appeal and all the letter of invitation issued to all the witnesses that purportedly testified before the disciplinary committee were all headed in and written from the Ministry of Justice, specially, the department of administration and supplies (office of the 5th Respondent).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel points out that the 5th Respondent accused the appellant, composed the panel to try him, determined who to call as witness and invited the witness one Mrs. Josephine Anuge, an officer in her department whom she also appointed as a member of the committee and sat herself as a Judge over the case. That these facts were pleaded and were not contradicted or controverted throughout the trial, but were not considered by the trial Judge.

The Court is on this submission urged to resolve issue two in favour of the Appellant.

ISSUE THREE
Whether the lower Court was right when it upheld the dismissal of the Appellant despite the fact that the Appellant was dismissed for divided loyalty notwithstanding the fact that he was only queried for attempting to compromise the diligent prosecution of the case
It is submitted for the Appellant that the Edo State Civil Service Rules (revised to 1st January, 2006) made adequate provision to ensure and guarantee fair hearing for persons accused of one wrong doing or the other.

Refers to Rule 030307 (viii) of the said Rules which provides that, where in the course of the inquiry, further grounds for dismissal are disclosed and the State Civil Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by direction of the commission be furnished with a written statement thereof and the same steps prescribed earlier shall be taken. Submits that the Appellant was queried for attempt to compromise the diligent prosecution of a case but seeing in the course of trial that it was not substantiated, and instead of a return of innocence for him, the committee proceeded to indict him for divided loyalty which was never presented to the Appellant in the manner prescribed by the Rules for his reaction in compliance with all known standard for fair hearing.

Counsel refers this Court to Section 36(1) of the 1999 Constitution (as amended), and submits that the rules governing how notices in respect of allegations will be given to officers was obviously not followed.

Counsel therefore urged the Court to resolve issue three in the Appellant’s favour.

The Respondents formulated a lone issue in their brief of argument, and that issue is:
Whether the lower Court rightly upheld the Appellant’s dismissal from service by the Respondents.

Respondents’ counsel submits that in a case for wrongful termination of appointment, the onus is always on the employee to:
(a) Place before the lower Court, the terms of employment, and
(b) Prove in what manner the said terms were breached by the employer.

Relies on the case of FMC Ido-Ekiti V. Alabi (2012) 2 NWLR (Pt 1285) 411 (CA).

Submits that the Appellant was unable to prove the manner the terms of his employment (Exhibit DB. 15) were breached in relation to his dismissal from service by the Respondents.

In answer to the submission of Appellant’s counsel on his issue two, Respondents’ counsel submits that the judgment of the lower Court is replete with findings in regard to the complaints of the Appellant on the alleged breach of fair hearing. He refers to pages 241-245 of the record of appeal. Specifically, counsel finds fortification in the finding of the trial Judge at page 245 where he found:
“From the above cited case law, it is right to say that where the provision of a statute governing the employment relationship is followed, it will be held that fair hearing was afforded to the claimant. It is in this light that I find and hold that the Defendants, having complied with the rules of Edo State, 2006, in the disciplinary process against the Claimant, the consequent dismissal of the Claimant is lawful”

Counsel submits that it was well placed before the Court that misconduct of divided loyalty is a serious misconduct of very serious consequence and very serious wrong doing and improper behaviour which is inimical to the image of the service which if proven may lead to dismissal. Refers to Rule 030401 and Rule 030402 (5) of the Edo State Civil Service Rules (Revised 01/01/2006), and page 237 of the record of appeal.

Respondents’ counsel faults the submission of the Appellant’s counsel that since the Appellant was being tried by the Disciplinary Committee for alleged misconduct of perverting the course of justice, the committee should have started another process of investigation for misconduct of divided loyalty by issuance of another query. Counsel however submits that, facts admitted need no further proof as same is taken proven as presented by the fact of its admission. Counsel relies on the cases of Ayoke V. Bello (1992) 10 NWLR (Pt 218) 380 ratio 2, O. A. A. Co-operative Society V. N. A. C. P Ltd (1999) 2 NWLR (Pt 590) 234 ratio 4.

Counsel further submits that it was the Appellant himself who placed before the Disciplinary Committee all the admitted facts that he misconducted himself in manners of divided loyalty which did not require the committee the vires to revert the case back to the Respondents for setting up of another disciplinary panel for another investigation. That the enabling Civil Service Rules only provide that if the allegation or findings of divided loyalty is proven as in this instance the Disciplinary Panel may dismiss the Appellant. Relies on Rule 030401 of the Edo State Civil Service Rules (Revised 01/01/2006). Counsel distinguishes between the steps taken as prescribed by Rule 030307 (viii) as canvassed by the Appellant which used the word “disclosed” and Rule 030401 which used the word “proven”.

​Counsel submits that Rule 030401 empowers the panel to see to the proof of the allegation against the Appellant, and that the Appellant aided the disciplinary board to procure this proof when he voluntarily placed before the panel, facts indicating that the Appellant misconducted himself in divided loyalty matters. Thus, in effect counsel submits the Respondents found divided loyalty proved not a disclosed fact, and the 2nd Respondent exercised its power under Rule 030307(X) to find him guilty of proven misconduct of divided loyalty. Counsel thus submits that Rule 030307 (VIII) does not avail the Appellant, and thus urged the Court to resolve issue three in favour of the Respondents.

Appellant’s reply to the Respondents’ argument on issue 3 is that it is trite law that an investigative body exercising quasi-judicial functions like a disciplinary panel or appeal committee is bound to observe the rules of natural justice, which includes the right of the person who would be affected by its decision to be notified of the complaint against him and to be given an opportunity to be heard in his defence and to cross-examine witnesses if necessary. Relies on Nduul V. Wayo (2020) ALL FWLR (PT 1026) at 614-615, ratio 13.

​Counsel further submits that the argument that Appellant admitted the misconduct of divided loyalty is misplaced. Counsel submits that the principle of admission of facts relates to pleadings essentially. The law, counsel contends, is that admission must be direct and unequivocal. Points out that the Appellant was alleged to have attempted to bribe someone. He made his explanation and was exonerated. Counsel therefore submits that the nature of Appellant’s response is in no way admission to any wrong doing. That the question or issue of admission can only arise where a person is first confronted with an issue.

Counsel’s further contention is that a person who was never accused of breaking a particular rule in the first place can never be said to have admitted breaking same. Counsel therefore submits that the cases of Ayoke V. Bello (Supra) and OAA Co-operative Society V. NACP Ltd (Supra) cited by the Respondents are clearly not applicable.

RESOLUTION
ISSUE TWO
Whether the lower Court was right when it failed to make a finding on the various critical issues bordering on breach of right to fair hearing raised by the Appellant all through the length and breadth of his case and finally in his written address.

The Appellant gave as instances, the infractions of his fundamental right which the lower Court failed to consider and make a pronouncement, the following:
(i) That the wordings of the query (Exhibit KU.05) shows a preconceived mindset and a definite conclusion on the guilt of the Appellant even without being heard first.
(ii) That the 4th Respondent proceeded to suspend him after the query even before receiving or considering his response to the query issued to him.
(ii) That the 5th Respondent who issued the query against the Appellant was the one who constituted the disciplinary committee by signing the letter of constitution of the committee, and she also thereby appointed herself as a member of the committee.

I have in the course of verifying these faults as alleged, critically examined the judgment of the Court.

The trial Judge considered one of the complaints in relation to the query on page 237 of the record of appeal which dealt with the Appellants’ complaint that the year 2000 Civil Service Rules, Rule 030307 (1) was cited.

The lower Court on that complaint stated that the position of the law is that, mere reference to a wrong law cannot vitiate an action, and relied on the case of Mike Omhenke Obomhense V. Richard Erhahon (1993) 7 SCNJ 479.

However, there is nothing in the judgment to show that the lower Court addressed the Appellant’s other two complaints in relation to the query, to wit, that the words used in the query suggested a predetermined conclusion that he was guilty even without hearing him; and that he was suspended after the query without waiting to receive his reply to the query, and consideration of same.

There is nowhere in the judgment where the lower Court considered the claims of the Appellant that the 5th Respondent who issued the query to the Appellant, constituted the disciplinary committee and also appointed herself a member; and made a pronouncement on it. What infact, the Appellant alleged here is that his accuser was also his Judge, and thus, the constitution of the Disciplinary Committee infringed upon his right to fair hearing. The lower Court ought to have made a definite finding on this complaint, but failed to and that he was thus denied fair hearing.

​It is settled law that with the exception of the final Court in the land, all other Courts, Court of trial and appellate Court are bound to consider all issues submitted to it for consideration. See Ahmed V. Mohammed (2009) LPELR-8739 (CA), p 23, paras D-F, Tidex & (Nig) Ltd V. Maskew & Anor (1998) LPELR-168 (CA), Pp. 37-38, paras C-A, University of Agriculture, Makurdi V. Jack (2000) LPELR-10620 (CA) Pp. 27-28 paras F-C.
Arguments were robustly canvassed on these issues before the lower Court. Therefore, Section 15 of the Court of Appeal Court Act, 2004 empowers this Court to step into the shoes of the trial Court to do the needful.

I will commence with the Appellant’s complaint in relation to the words used in the query (Exhibit KU. 05) thus:
“It must be pointed out that your action, to say the least is a gross violation of the provisions of Rules 04401 (i), (xi), (xvii) of Edo State Civil Service Rules (revised to 1st January, 2000)”

No doubt, these wordings coming when the Appellant was yet to submit his answer to the query demonstrates a preconceived conclusion on the guilt of the Appellant. Such a step has the likelihood of causing misapprehension in the mind of the appellant that he might not get justice. However, this action by itself alone without more is not sufficient to invalidate the findings of the disciplinary committee. But I must be quick to point it out that it might have influenced the decision to suspend the Appellant even when before the 24 hours within which he was required to submit his response to the query had expired, and/or receiving the response and considering it, the Respondents proceeded to suspend the Appellant indefinitely without pay. This is the Appellant’s second complaint in relation to his perceived infringement of his right to fair hearing. Whatever formed the decision to suspend him before the expiration of the time within which he was requested to turn in his response to the query could be better imagined. “Suspension” is provided for in Rule 030406 of the Edo State Civil Service Rules (Revised to 1st January, 2006). It provides:
“Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he should forthwith be prohibited from carrying out his duties pending investigation into the misconduct, the State Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his delegated powers) shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his emolument”

The lower Court in agreeing with the Disciplinary Committee’s suspension of the appellant stated thus:
“Rule 030406 allows for suspension of an officer from office inclusive of the enjoyment of his emoluments pending investigation into a misconduct where a prima facie case has been established against such an officer. In Ajidagba V. IGP 1958, 1 SCNLR 60, the Supreme Court defined the term prima facie case as a ground for proceeding, it was held in that judgment that:
“Prima facie is not the same as proof which comes later when the Court has to determine whether the accused is finally guilty or not guilty……”
In other words, evidence discloses a prima facie even when if it remains uncontradicted and if believed, will be sufficient to proof (sic) the case against an accused. I therefore find in the light of the above that the 4th Defendant has the power to suspend the Claimant. I so hold” (see page 238 of the record of appeal).

The lower Court appears to have missed the point here. The Appellant’s complaint is not that he cannot be suspended, but on who did it; and on the issue being considered, whether it was right to suspend him when he was yet to submit his response to the query. In Mohammed Sani Abacha V. The State (2002) LPELR-161 (SC), the apex Court interalia held:
“What is meant by prima facie (case)? It only means that there is ground for proceeding …… But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty, and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused person”.
Per Belgore, JSC (Pp. 21-22, paras G-D).
Could there be a prima facie case within the meaning of what the apex Court defined in the case of Mohammed Sani Abacha V. The State (supra) when all that the Respondents had at the time of the suspension was the query based on the petition against the Appellant? The answer is an obvious No, otherwise, where was the evidence? Even if the Respondents considered the allegations against the Appellant to be weighty, they ought to have waited to receive the Appellant’s reply to the query. At that point, even if allegations were denied by the Appellant, they could have had a solid base to suspend the Appellant pending investigation. In my view, the suspension at the time it was issued was wrong and therefore prejudicial to the Appellant. It paints a picture of a desire by the Respondents to get rid of the Appellant in a hurry when he was yet to be heard.

Last but not the least is the Appellant’s complaint that he was queried by the 5th Respondent, who also set up the Disciplinary Committee and was herself a member of the committee.

Rules 130102 and 030103 of Exhibit “DB15” are relevant. The two rules together gives the State Civil Service Commission the power to delegate full disciplinary powers to Permanent Secretaries and Heads of Extra-Ministerial Offices in respect of officers on salary GL. 13 and below with the exception of the power of dismissal which has been delegated only in respect to Gl. 06 and below.

As can be seen, the 4th Respondent has the power to discipline the Appellant. What he does not have power to do is to dismiss him, and where it comes to dismissal, it has to be carried out by the commission.

The Appellant’s complaint is that he was issued the query by the 5th Respondent, who was also made a member of the Disciplinary Committee. There is nothing in the query (Exhibit KU. 05) to suggest that the 5th Respondent issued it. Because it was signed by her does not indicate that she either signed or she was delegated to do it. She signed for the 4th Respondent who the rules empowers her to do. Therefore, it cannot also be said or argued that she issued the query and was also a member of the committee to justify the Appellant’s contention that she is the accuser and Judge at the same time in his case.

Therefore, she being a member of the committee did not amount to infraction of the rules. The only person the rules did not permit to sit on the panel is the 4th Respondent.

​This complaint in my view lacks substance.

Issue two is therefore partly resolved in favour of the Appellant and partly in favour of the Respondents.

ISSUE THREE
Whether the lower Court was right when it upheld the dismissal of the Appellant despite the fact that the Appellant was dismissed for divided loyalty notwithstanding the fact that he was only queried for attempting to compromise the diligent prosecution of the case. Chapter 3, Section 3 paragraph 030307 (VIII) of the Edo State Civil Service Rules (Revised to 1st January, 2006) is instructive on issue three.
​The said paragraph 030307 (VIII) provides:
“Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with this Rules (VIII): If during the course of the inquiry further grounds for dismissal are disclosed, and the State Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall by direction of the Commission be furnished with a written Statement thereof and the same steps shall be taken prescribed above in respect of the original grounds”.
The drafters of the Service Rules quite realistically appreciated the serious nature of dismissal of an officer from the Civil service and deservedly put in place measures that an officer shall not whimsically be put out of his means of livelihood in breach of his fundamental human right as provided in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) which provides:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.

​The question pertinent to ask is, whether the Appellant was given fair hearing before he was dismissed on the ground of divided loyalty? In considering the answer to this important poser, my Lords, our attention must be drawn to Exhibit “KU.05” which is the query issued to the appellant dated 25th October, 2016. Therein, the Appellant was queried for gross violation of the provisions of Rules 04401 (I, XI, XVii) of the Edo State Civil Rules (Revised to 1st January, 2000).

Paragraph 1 of Exhibit “KU.05” reads:
“Information at the disposal of the Ministry of Justice is that you fraudulently interacted with the accused person(s) and/or their counsel in a charge No. B/CD/48C/15 against one Mr. Adedeji Adeleke and 4 others with a view to compromising the diligent prosecution of the case, in the course of which you received the sum of N1,000,000.00”.

Exhibit “DB 11” is the CTC of the report of the Disciplinary Committee set up to investigate the Appellant based on the query that had been issued to him (Exhibit KU.05). The substance of the report is that the allegation that the Appellant collected the sum of N1,000,000.00 to infiltrate the Judge was not proved. That means that the ground upon which he was queried, and upon which the Disciplinary Committee was set up to investigate him was not proved. However, the committee was of the view that from their findings in the course of the proceedings, there was irregularity in the action of the Appellant by acting as a courier for the litigants and visiting them in prison custody in his capacity as a state counsel (prosecution), thereby casting some aspersion on the integrity of the prosecution by the Ministry of Justice. That the action smacks of divided loyalty, and thus the Appellant was guilty of corruption and dishonesty, in violation of Section 04401 (XI, XVII) (Revised to 1st January, 2000).

​The implication of what the committee did was that the Appellant was investigated on the ground of misconduct of collecting money to compromise the diligent prosecution of the case against accused persons in charge No. B/CD/48C/15, AND dismissed on the ground of divided loyalty, and as if to justify their verdict of guilt against the Appellant, added corruption and dishonesty which would have been an appropriate finding if the misconduct of perversion of course of justice, or compromising the prosecution of the offence against the accused persons was proved; and which by the committee’s showing was not proved. What then is the import of paragraph 030307 (VIII) of the Rules, if I may further probe? The Section the committee was confronted with was the very mischief Rule 030307 (VIII) was intended to cure. I dare to state that even if the committee found that the initial misconduct was proved, but that it also offended the rule against “divided loyalty” what the committee would have done is to make their observations to the Civil Service Commission with a recommendation that the Appellant be furnished with a written statement indicating that he was being proceeded against on the ground of divided loyalty, corruption, dishonesty or whatever. Definitely, the committee breached the Appellant’s right to fair hearing when in total disregard of Rule 030307 (VIII) of the Civil Service Rules of Edo State, they recommended his dismissal on a ground other than the one in respect of which he was being investigated.

In the case of Adeniyi V. Governing Council of Yabatech (1993) LPELR-128 (SC), Pp 42-43 Paras F-A, it was held that in all cases, the general principle is that where the contract of service is protected by statute and the removal of plaintiff is predicated upon compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void.

​The case of Idoniboye-Obu V. NNPC (2003) LPELR-1426 (SC) defines “statutory provisions” as meaning, what it says; namely the provisions of a statute or, by extension of a statutory instrument. See also the case of PHCN V. Offoelo (2012) LPELR-19717 (SC) Pp. 41-42, paras B-D.

In yet another decided case that gives light in a situation such as in this appeal, this Court, in the case of NJC V. Senlong & Ors (2010) LPELR-4582 (CA) Pp. 51-52, paras E-B, held that when a statute directs that a certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such a procedure must be strictly followed, otherwise the Court will declare void any act done not in accordance with the prescribed procedure. See also Ahmed V. Abu & Anor (2016) LPELR-40261 (CA) P. 26, paras A-E.

​I find it, will I say, preposterous or surprising that the action of the committee could be defended by Respondents’ Counsel in the premise that there was an admission of or confession to the misconduct of divided loyalty by the Appellant while being investigated on the query earlier issued against him (Exhibit BU.05). What admission or confession can there be without an allegation or charge?
Section 28 of the Evidence Act, 2011, defines Confession thus:
“A confession is an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
In the case of FRN V. Iweka (2011) LPELR–9350 (SC) P. 451 Paras B–E, it was held that the conglomerate definitions assigned to the words/phrases, “Confession” or “Confessional Statement” by the Evidence Act and the case law refer to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. The following cases were referred to:
Saidu V. The State (1982) 4 (SC) 41 at 56, Ikemson & Ors V. The State (1989) 3 NWLR (Pt. 110) at 476, Akpan V. The State (1990) 7 NWLR (Pt 160) 101 at 109, Nwaebonyi V. The State (1994) 5 NWLR (Pt 343) 138 at 149, Edighere V. The State (1994) 5 NWLR (Pt 344) 312 at 321, Kasa V. The State (1994) 75 NWLR (Pt 344) 269 at 284–288.
​The Appellant in the instant appeal was not investigated on the allegation of divided loyalty nor was he accused of corruption and dishonesty occasioned by his offering with or without financial benefit to assist an accused person being prosecuted by the ministry of justice in which he is State counsel, or that his visiting the accused person in prison, simpliciter amounted to corruption or fraud or dishonesty. Therefore, if what he stated before the investigating disciplinary committee in his bid to exculpate himself of the charge against him on ground of receiving money to compromise the prosecution of the suspect by his ministry was considered a misconduct of divided loyalty, what paragraph 030307 (VIII) required the Civil Service Commission to do was to furnish him with the particulars of that misconduct, issue him a query accordingly, and if need be put him through investigation by another or the same Disciplinary Committee all over. There was no charge of misconduct on ground of divided loyalty, corruption or dishonesty against the Appellant, therefore, it is a gross misconception on the part of the committee, and counsel to the Respondents to hold that the Appellant had himself admitted, or confessed to the misconduct of divided loyalty, and therefore there was no need to comply with the requirement of paragraph 030307 (VIII) of the Edo State Civil Service Rules, (Revised to 1st January, 2006).

Aside from the fact, which is incontrovertible that the Appellant was not accused of any misconduct bordering on divided loyalty, corruption or honesty to which he could be said to have confessed to, there is nothing in the proceeding of the committee that established that misconduct against the Appellant. The report of the committee shows that when the author of the petition (Exhibit “DB6”) was confronted with the allegation of “trying to infiltrate the Judge in the case” in his petition, the petitioner disclosed that his position was informed by a mild drama that allegedly played out in the Court premises during trial where the relations of the accused persons reportedly lamented the refusal of bail for their persons and subsequently expressed disappointment at the failure of their alleged contact (Mr. Ugiagbe) to deliver. The committee itself noted that there was no direct evidence.

​Mr. Osa-Uwagie, a legal practitioner who was mentioned by Mr. Ugiagbe (Appellant) in his response to the query was called before the committee to testify. It is on record of the committee that Mr. Osa–Uwagie introduced himself as a legal practitioner in private practice and told the committee that Mr. Kenneth Ugiagbe had approached him within the Ministry of Justice premises some months earlier and mention to him of possible plan to engage his services in a criminal matter to which he advised Mr. Ugiagbe to come to his chambers for formal discussion on the issue. That he also confirmed that he mentioned to Mr. Ugiagbe that his minimum chargeable fee in a murder case was N1,000,000.00, adding that he neither saw Mr. Ugiagbe again nor any litigant on the issue. In what was a confirmation of what Mr. Osa-Uwagie said, the Appellant told the committee while denying the allegation of fraud and attempt to pervert justice levelled against him that he received the sum of N500,000.00 only from some family members of the accused persons, being part payment for transmission to Mr. Osa-Uwagie whom he had contacted on the accused’s behalf to handle the case for them. That he was quick to disclose that he had to refund the money following the inability of the family members to meet up with the proposed fee of N2,000,000.00 charged by Barr. Osa-Uwagie. It is also on the record of the committee that the appellant disclosed that the money was in his possession for about five months, but reiterated his earlier position in his reply to the query that he was never at any point a member of the Ministry of Justice Prosecuting team in the case and could therefore not be in a position to influence the prosecution or to pervert justice in the case. The record of the committee also has it that the Appellant admitted visiting the accused persons in prison custody following his elder brother’s appeal for assistance for the relations whom his elder brother had earlier introduced to him.

The record of the committee also contains the submission of the Director of public prosecution as contained in the documents received from the Ministry of Justice on the issue, that the Appellant had no opportunity to be involved in the determination of prima facie case against the accused.

​Now, the relations of the accused persons in the criminal charge were not called to testify as to disprove the assertions made by the Appellant.

Now, was it the offer to assist the relations of accused persons being tried for a capital offence to secure a counsel for their defence, or the visiting the accused persons in prison on the plea of the Appellant’s elder brother who had introduced them to him that constituted such a gross misconduct that did not require him to be given fair hearing, and to be instantly dismissed?

The Appellant was until his dismissal, a State Counsel and entitled to be accorded the status of a minister in the temple of justice, and therefore as a minister in the temple of justice, he had a duty to ensure that the accused persons had a fair trial since they were until found guilty presumed to be innocent. That duty included him asserting within legal limits to ensure that the accused persons were afforded adequate time and resources for the preparation of their defence in person or by a Legal Practitioner of their choice. The case of Innocent Nweke V. The State (2017) LPELR–42103 (SC) P,p 6-7, paras E–F is instructive on this point.

​I want to situate the action of the Appellant, in the absence of any evidence to the contrary, as nothing but assisting the accused persons who happened to be known to his elder brother to secure a legal practitioner who would defend them in their prosecution for a capital offence.

In any case, even if the Edo State civil service are not on the same page with me in this thinking, the least they could do is to comply with their own rules which required them to give the Appellant the opportunity of defending himself. It is a surprise that the Ministry of Justice could not do justice to one of their own. What kind of justice can they dish out to others if they could deny same to one of their own? I am really disappointed.

All that I have been saying condescend to this; that the Appellant was denied fair hearing. He ran to the lower Court to seek refuge but it could not protect him. What does the law mandate me to do in the circumstance?

​The position of the law is long settled that once there is a denial of fair hearing, that in effect is a breach of the audi alteram principle of the rules of natural justice. The only order that can be made by an appeal Court is one of retrial or rehearing before the investigative panel to enable the Appellant to be properly heard and not shut out. See: Danladi V. Dangiri & Ors (2014) LPELR–24020 (SC) P. 58 Paras C-E, see also Aniyanghan & Ors V. Seiyabakoru & Ors (2017) LPELR– 43383 (CA), P. 22, Paras, B-D, Aroyewun V. Cop, Ogun State (2004) LPELR-11201 (CA), PP. 10-11, Paras D-A.
In the case of Andong & Ors V. Asuquo & Ors (2020) LPELR-50072 (CA) it was held:
“The denial of fair hearing to a party is fatal to the judgment. It renders the proceedings null and void. When there had been a denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing. See NUT. Taraba State V. Habu (2018) 15 NWLR (Pt 1642) 381 at 392. In the instant case, the lower Court denied Appellants fair hearing and thereby suffered miscarriage of justice”, per Shuaibu, JCA (P 17 para D-F).

The Appellant was denied fair hearing before the Disciplinary Committee set up by the Edo State Civil Service Commission. Unfortunately, he could not get this remedied by the lower Court.

​This appeal is therefore meritorious, and is hereby allowed. Accordingly, the judgment of the lower Court delivered by Hon. Justice AA Adewemimo on 11th April, 2019 in Suit No. NICN/BEN/18/2017 is hereby set aside.

In its stead, judgment is entered in favour of the Appellants in terms of claims (a), (b), (c), (d), (f), (g), (h), (i). And in respect of claim (j), I award the sum of N10,000,000.00 being compensatory, aggravated and exemplary damages jointly and severally against the Respondents for their actions in the wrongful dismissal of the Appellant with the resultant injustice done to him.

The Appellant is entitled to costs of N200,000.00 against the Respondents for the prosecution of this appeal.

EXPLANATORY REMARK
This judgment has been delivered a few days outside the constitutional period provided for delivery of judgment after adoption of briefs of argument. This is caused by the JUSUN strike which lasted for more than two months and was only called off on 14th June, 2021.

During the strike it was not possible to access the files, Exhibits and other processes necessary for writing the judgment because the Courts were under lock and key.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother JAMES GAMBO ABUNDAGA, JCA.
I agree with his reasoning and conclusions.

My brother had amply covered the whole field of the issues brought up in the preliminary objection and the briefs of argument.
I have nothing to add.
I allow the appeal.

The judgment of the National Industrial Court delivered on the 11th of April, 2019, in Suit No. NICN/BEN/18/2017 is hereby set aside.
I abide by the consequential order made as to costs.

HAMMA AKAWU BARKA, J.C.A.: I have had a preview of the judgment of my learned brother James Gambo Abundaga, JCA, just delivered, and I am in alignment with the brilliant reasoning and conclusion reached in the determination of the difficult issues that arose in the appeal.

I believe that justice was breached by the Ministry of Justice against a member of the same Ministry of Justice.

Consequently, I find the reasoning and conclusions by my learned brother remedying the injustice meted out apt, and also allow this appeal endorsing all orders made including that on costs.

Appearances:

AMBROSE ETSENAMHE For Appellant(s)

I.O. KADIRI, PRINCIPAL COUNSEL, MINISTRY OF JUSTICE, BENIN EDO STATE For Respondent(s)