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CHIEF AWOS AWOSOLA GODWIN -VS- LAGOS STATE JUDICIAL SERVICE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

 

DATE:  FRIDAY 28TH FEBRUARY 2020                SUIT NO. NICN/LA/504/2017

 

BETWEEN

CHIEF AWOS AWOSOLA GODWIN                                     CLAIMANT

AND                                                                           

LAGOS STATE JUDICIAL SERVICE COMMISSION                          DEFENDANT

 

Representation:

  1. Labi-Lawal with I.T Salami and O Osibanjo appear for the Claimant

Babatunde Oduntemowo appears for the Defendant

 

JUDGMENT

  1. Introduction and Claim:

 

By a General Form of Complaint dated October 17, 2017, the Claimant instituted this action, and sought the following reliefs against the Defendant:

 

  1. A Declaration that the Defendant is in breach of the Claimant’s right to fair hearing in the determination of the Claimant’s employment with the Defendant.
  2. A Declaration that the Defendant failed to comply with the procedures laid down in the relevant laws in the determination of the Claimant’s employment.
  3. A DECLARATION that the Claimant is still in the employment of the Lagos State Judicial Service Commission.
  4. AN ORDER compelling the Defendant to reinstate the Claimant to the position he was with all the benefits attached to the position before his employment was unlawfully interfered with.
  5. Monthly payment of N69, 000.00 (Sixty Nine Thousand Naira) by the Defendant to the Claimant being his gross monthly remuneration from July 2017, till Judgment is delivered in this suit.
  6. PERPETUAL INJUNCTION restraining the Defendant from subsequent interference with the Claimant’s employment with the Defendant.
  7. THE SUM of N1, 300, 000. 00 (One Million, Three Hundred Thousand Naira) being the cost of prosecuting this suit.
  8. The Defendant entered appearance on December 12, 2018 and filed its Statement of Defence alongside other accompanying documents.Subsequently, on March 21, 2018, the Claimant filed his Reply to the Statement of Defence.
  9. Trial commenced on January 10, 2019 with the Claimant testifying for himself.  The Claimant tendered eight (8) documents which were admitted and marked Exhibits C1-C8. The Claimant was cross examined by the Defendant’s Counsel. The Defendant opened its case on February 27, 2019 and also called one witness – Balogun Oluwadamilare; who also tendered some documents which were admitted as exhibits D1 –  D11.  He was also crossed-examined.  The parties were ordered to file their final written addresses.  The said final addresses were adopted on February 4th 2020 and the matter was adjourned for judgment.

 

Facts of the Case:

  1. The Claimant was appointed by the Defendant as the President of Eredo Grade ‘B’ Customary Court, on salary Grade Level 08 (Step 10) via a posting letter of appointment dated July 7, 2009. The Claimant’s 1st tenure as President of the Customary Court lapsed in 2014 and same was renewed by the Defendant for another Five (5) years which was expected to lapse in 2019.  Sometime in March 2017, the Claimant as President of the Lagos Island Customary Court received a letter dated 27 March 2017, from the law firm of Braintrees Solicitors, seeking to know the position of the customary court in respect of a judgment delivered in suit No LIC/C/15/2001 between Dr. Femi Olokodana and Mrs. Taiwo Olokodana on the 19th day of December, 2001.  On 29th March 2017, the Claimant wrote a letter to the said law firm, stating, according to the claimant, the true and actual position of the matter as contained in the record of the court as the Claimant was not a member of the customary court at the time the judgment was delivered. In the said letter, the Claimant informed Braintrees Solicitors that the judgment delivered in the suit is yet to be set aside and was is still valid, subsisting and binding on all the parties.  In May 2017, the Claimant received a letter from the office of the Director of Public Prosecutions (DPP) of Lagos State Ministry of Justice notifying him of a petition written against his person and one Monday Christopher Ajigo on an allegation of official misconduct.  A copy of the said petition was attached to the letter which directed the Claimant to forward his reaction to the petition to enable the office of the DPP to respond to the petitioner as appropriate. In compliance with the directive contained in the letter, the Claimant wrote his reaction to the petition and took same to the office of the DPP at Alausa in Ikeja.  Upon the arrival of the Claimant at the office of the DPP, the Claimant met with the author of the letter dated 22 May 2017, and expressed his desire to submit his reaction to the petition.  The said author informed him that there was no longer any need for his reaction as the allegations contained in the petition have been forwarded to the State CID, Panti for further and thorough investigation. Thereafter, the Claimant was invited to State CID for investigation and after the said investigation; the Claimant was vindicated and allowed to go. Subsequent to the police invitation and investigation, on 4th July 2017, the Claimant was invited by the Defendant to appear before the Defendant’s Investigation Committee in respect of the earlier mentioned Petition. The Claimant appeared in person and stated his defence as contained in his letter dated 25th May 2017.  It is the Claimant’s case that in flagrant disregard of the relevant provisions of the law, the Defendant dismissed him from his employment via a letter dated August 1st, 2017, on the ground of dereliction of duty and general inefficiency.  The dismissal was to take effect from 20th July 2017.  It is Claimant’s case that the mode and manner in which he was dismissed from his employment was not in compliance with the provisions of the relevant laws.
  2. The Defendant, on the other hand states that the Commission during their investigation of the petition against the Claimant, discovered that two different letters were issued from the same Customary Court in respect of the status of the judgment delivered in 2001.  That the first letter was written by the Registrar of the Court for the revocation of the dissolution of the marriage in respect of the judgment; while the second letter was issued by the president of the Court, confirming that the said judgement was still subsisting, valid and binding on all the parties.  That, the Committee found a serious case of dereliction of duty, inefficiency, gross incompetence against the Claimant, for being unable to control his Court thereby allowing series of fraudulent letters to issue from his Court contrary to the procedure laid down under the Customary Court Laws of Lagos State and Oaths of Office taken by the Claimant.  The defendant states that on the 20th of July 2017, members of the Judicial Service Committee deliberated on the report of the Disciplinary Committee and thereafter enforced their recommendation.

Arguments of Counsel:

  1. Counsel for Defendants in their final written address formulated a lone issue for determination:
  • Whether the dismissal of the Claimant from the employment of the Defendant is lawful in the circumstances of this case.
  1. In arguing this lone issue, the Defendant submits that the terms and conditions of the employment of the Claimant is regulated by the Lagos State Public Service Rules 2015; making claimant’s employment one with statutory flavour.  The implication, according to the defendant, is that claimant’s employment cannot be properly or legally terminated or dismissed until the rules are strictly complied with.  The Defendant argued that the Claimant whose employment is five years renewable tenure, is a contract staff subject to provisions 020402 and 020404 of the Lagos State Public Service Rules 2015.  The defendant submits that it complied with the provisions of the paragraphs stated above.
  2. On behalf of the Claimant, Counsel set down two issues for determination; as follows:
  3. Whether the defendant followed the laid down procedures contained in the relevant laws before dismissing the claimant from his employment.
  4. Whether the claimant is not entitled to an order of reinstatement.
  5. The Claimant argued that the definition of ‘contract appointment’ in the Public Service Rules paragraph 020501 does not apply to his appointment.  He submits that having established that he was not a contract staff of the Defendant, that he was a State Judicial Officer as defined in the interpretation section of the Judicial Service Commission Rules 2009. On the procedure for his dismissal, the Claimant submits that the Defendant did not deny his claim that the investigation committee set up by the Defendant to investigate the matter was irregularly constituted and that a member of the committee was biased against him.  The Claimant further submits that the Defendant did not deny that the Claimant was not notified in writing of the grounds on which he was to be disciplined by the Defendant before his dismissal, as required by Rule 040303 of the Lagos State Public Service Rules 2015.  The Claimant submits further that the Defendant did not issue any query on him and he was not called upon to state in writing what he relied on to exculpate himself for misconduct as required by Rule 040402 of the Lagos State Public Service Rules 2015.  Further, the Claimant submits that he was not given access to any document or report which was used against him by the Defendant in arriving at the conclusion that he lacked the ability to discharge his responsibility, as required by Rule 040406.  The Claimant also submitted that he was not informed that the subject of his dismissal shall be brought before the Defendant, nor was he invited to appear before the Defendant to defend himself after the committee’s recommendation; as required by Rules 040403 and 040406.  The claimant further submits that his appointment was terminated by a person who had no authority to terminate it contrary to Rule 040304; and that the retroactive dismissal was contrary to Rule 040509.

 

Decision:

  1. I have considered the processes filed in this matter, the evidence led and the arguments of Counsel.  I adopt the following issues for determination:

 

  1. Whether the claimant was a full or contract staff;
  2. Whether claimant’s dismissal followed the laid down Rules of the Lagos State Civil Service for the type of employment determined in No. 1 above;
  3. Whether Claimant is entitled to his Claim.

 

  1. There are no contentions on the status of the Claimant being part of the Public Service of the Lagos State government, and being subject to the Lagos State Public Service Rules(LSPSR).  Both parties copiously referred to the Lagos State Public Service Rules as authority for their various positions in this case.  The Defendant referred to Rules 040301, 040401 and 040503 as authority to dismiss the Claimant.  It is the Defendant’s contention that it complied with the provisions of the Lagos State Public Service Rules for contract staffs in the dismissal of the Claimant.

 

  1. The LSPSR defined persons subject to it in its paragraph 010101 and I find that the Claimant whose appointment is made by the Judicial Service Commission (Exhibit C1, letter of posting) falls within the classes of persons contemplated in that definition. Though the Defendant made an issue of the Claimant’s non-tendering of the appointment letter; the Claimant stated that exhibit 4 was what was given to him upon appointment.  I do not see that the Defendant had denied in any way, the Claimant’s appointment as president of one of the customary courts of the state.   Claimant’s employment is also governed by the Customary Court Laws of Lagos State 2011.  The Defendant also referred to this Law in its dismissal letter to the Claimant (Exhibit D11).  The Claimant, as admitted by the Defendant clearly falls within the category of employment with statutory flavour.   The combined reading of the provisions of Sections 6 and 51 of the Customary Court Law provides conclusive evidence of the status of the Claimant’s employment as one governed by statute.  Those sections provide that;

“6- The office of a member of the Customary Court shall be by appointment for a renewable term of five (5) years and shall not be pensionable.

51-Member in relation to Customary Court includes the President.”

  1. All the above findings find support in the recent judgment of the Supreme Court in Kwara State Judicial Service Commission & Ors v. Miss Yetunde Zainab Tolani (2019) LPELR-47539(SC) where PETER-ODILI JSC stated what is to be considered to determine when an employment enjoys statutory flavours that:

I need to state very humbly too that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are:- (1) The employer must be a body set up by the constitution or statute and; (ii) The statute or regulations made pursuant to the constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline.

I find that the two ingredients are present in this case.  First, the Claimant’s office is a creation of sections 5 and 6 of the Customary Court Law of Lagos State 2011, while the Defendant employer is a creation of section 197(1)(C) of the Constitution of the Federal Republic of Nigeria 1999.  The power of the Defendant to appoint, dismiss and exercise disciplinary control over the Claimant is also provided by Paragraph 6 (c) of Part II of the Third Schedule to the same Constitution.

  1. What is left to be determined, for purposes of issue 1, is the nature of the Claimant’s appointment; whether it was on contract basis, in which case, as argued by the Defendant, Rules 020401(a) and 020404 will guide the termination; and not the general disciplinary procedures for all public servants.  Parties are agreed that the Claimant was a holder of public office for a duration of a renewable five (5) years term.  This is in conformity with section 6 of the Customary Court Laws of Lagos State 2011 which provides that “the office of a member to the customary court shall be by appointment for a renewable term of five (5) years and shall not be pensionable.

 

  1. The LSPSR contains a definition of ‘Contract Staff’.  It is in Rule 010103 – the interpretation section.  It defined contract appointment as:

an engagement of a person to an established office for tour(sic) of two (2) years renewable only once or as stipulated in the terms and conditions of his contract.

This provision is clear and unambiguous that a contract appointment is one for two years, renewable for another two years.  Parties are agreed that Claimant’s appointment was for five years, renewable for another five years.  The evidence before the Court actually shows that the Claimant had finished the initial tenure of five years, and was on his second, before he was dismissed.  The definition in Rule 010103 is reiterated in Rule 020401.  This Rule falls under section 4 with the heading “RULES FOR APPOINTMENT ON CONTRACT”.  It provides that:

Contract appointment means an engagement of a person to an established office for a tour(Sic) of two (2) years renewable only once or as stipulated in the terms and conditions of his contract.  It should be offered only where a specific need has been identified that is not met by the existing Civil/Public Servant population.  The contract appointment must be recorded in a formal agreement.

 

  1. Again, this provision is clear that the term of office for a contract appointment is two years.  There is no evidence to show that claimant’s appointment was made to meet specific need for which the civil/public service population did not meet.  On the contrary, the Claimant’s appointment is part of the civil/public service population and is duly provided for by a separate law; the Customary Courts Law of Lagos State 2011.  Rule 020402 refer to rules for appointment on contract.  This provision crystalizes where an appointment, meeting the definition of contract appointment is intended, and is therefore only relevant and applicable when a contract appointment is to be made.

 

  1. By the foregoing, I find that claimant’s appointment was NOT on contract basis.  I so hold.

 

  1.  I now proceed to resolve issue 2, which is, whether claimant’s dismissal followed the laid down Rules of the Lagos State Civil Service for the type of employment determined in No. 1 above.  If as I have found, the Claimant’s appointment is not on contract basis, then Rule 020404 “termination during current contract” relied on by the Defendant in the dismissal of the Claimant will not apply.  This Rule envisages that termination of contract appointment may be done by the state government at any time in accordance with the terms specified in the contract itself.  The Defendant who alleged that the Claimant was appointed on contract did not furnish this Court with the said contract, specifying that the Claimant was so appointed, and specifying the terms.  Exhibit C1 shows the posting of the Claimant as President Eredo Grade ‘B’ Customary Court, written by the Judicial Service Commission, to the Executive Chairman of Eredo Local Coucil Development Area.  It can only be said that such posting was pursuant to an appointment under the Customary Court Laws of Lagos State.

 

  1. Now, if Rules 020401 – 020404 do not apply; because the Claimant is not a contract staff, then it would not be preposterous to suggest that since the Defendant’s evidence and case is that the Claimant was a contract staff and the procedure adopted to dismiss him was in accordance with the procedure for the dismissal of contract staffs, the implication would be that having found that the claimant was not a contract staff, then it can be concluded that the procedure adopted by the Defendant, cannot be in consonance with the provisions of all the relevant and cited laws.  In that case, this issue can be concluded at this point, and the dismissal declared illegal.

 

  1. It must be noted that this Court has not been called to conduct an investigation on the allegations against the Claimant leading to his dismissal.  The role of this Court in this matter is to determine whether the manner by which the decision of the Defendant was arrived at was according to law.  See Governor Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292.  The unfettered judicial discretion of the Court is only exercised when statutory institutions fail to carry out the statute and tort procedure set out for removal. See also Olaniyan v. University of Lagos (1985) 2 NWLR SC 599.

 

  1. The Claimant’s principal reliefs are for:
  2. A DECLARATION that the Defendant is in breach of the Claimant’s right to fair hearing in the determination of the Claimant’s employment with the Defendant.
  3. A DECLARATION that the Defendant failed to comply with the procedures laid down in the relevant laws in the determination of the Claimant’s employment.

This suit is principally hinged on breach of fair hearing for failure to comply with the procedures laid down in the relevant laws for the determination of the Claimant’s employment.  Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause- Ariori & Ors v. Muraimo Elemo & Ors (1983) 1 SC 13 at 24.

  1. The law is well settled that where a contract of service enjoys statutory flavour, an employer wishing to terminate the contract must be meticulous in complying with the procedure set out in the relevant Statute or Rules thereunder. Any deviation from the stipulated procedure would render any acts done in respect thereof invalid and liable to be set aside. See: Federal Polytechnic, Ede &Ors v. Alhaji Lukman Ademola Oyebanji (2012) LPELR-19696(CA), Iderima v. R.S.C.S.C. (2005) All FLLR (285) 431 at 450 D – E.  As stated in the case of Obianwuna v. NEPA (2016) LPELR-40935(CA):

The law is well settled to the effect that where an employment or contract of service is protected by the statute, the enabling law which created the governmental agency the employer, the removal, termination, dismissal or retirement of the employee must be predicated upon and in compliance with the statutory provisions, governing the employment or contract of service. Thus, a non-compliance with the enabling statute, in the dismissal, or retirement of an employee, renders such dismissal or retirement, as null and void. Adeniyi v. Yaba College of Technology (1993) 7 SCNJ (Pt.II) 304 at 336 & 338; Central Bank of Nigeria & Anor v. Mrs. Agnes Igwillo (2007) 5 SCNJ 52.” Per YAKUBU, J.C.A. (P. 24, Paras. B-F)

In Peter Onyeachonam Obanye v. Union Bank of Nigeria PLC (2018) LPELR-44702(SC), NWEZE JSC held on the issue that:

Where the servant is sought to be removed in a contract with statutory flavor, that is, a contract of employment wherein the procedures for employment and discipline, including dismissal, are clearly spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is void and has no effect.

  1. The Claimant was dismissed for acts classified as misconduct in accordance with the Public Service Rules 040301 and 040401 respectively.  Rule 040301 defines general inefficiency for which a person may be dismissed as follows:

General inefficiency consists of a series of omissions or inability to discharge duties to the required standard, the cumulative effects of which shows that the officer is not capable of efficiently discharging the duties of the office he holds

Rule 040302 then provides that first and foremost, “it shall be the duty of every superior officer, as soon as he observes any fault or shortcoming in the work of an officer subordinate to him, to bring it to the officer’s notice during a counselling/coaching session and to place it on record that this has been done, with a view to improving the officer’s usefulness and efficiency in the Service.

 

  1. Under Rule 040303, before proceedings for the removal of an officer for general inefficiency may commence, he must have been:

 

(i)                 Warned on three or more occasions previously in writing (see Rule 040304) or suffered loss or deferment of his last increment; and

(ii)               Given ample opportunity for improvement (within a timeline of one (1) year)

Rule 040304 referred to in Rule 040303, applies to temporary staff and thus does not apply to this case.  That Rule authorises Permanent Secretaries/Heads of Extra-Ministerial Departments/Agencies to, subject to the provisions of the Labour Act (Cap. 198) and of individual letters of consideration for appointment, terminate the employment of a temporary member of staff who must have been informed of the grounds on which it is proposed to terminate his appointment and has been given an opportunity to make representations as to why he should not be terminated.  Similarly, prior to the termination of his service for inefficiency, such an officer must have been warned of his failings and be given an opportunity to improve or to offer a satisfactory explanation of his failure to perform his duties efficiently.  I need to reiterate that this Rule does not apply to this case, as the claimant here is not a temporary staff.

  1. Under Chapter 4 of the Lagos State Government Public Service Rules 2015, provisions with respect to misconducts are made.  Rule 040401 defines misconduct to include dereliction of duty for which the Claimant was dismissed per exhibit C2.  Rule 040402 requires that ss soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him, it shall be his duty to inform the officer in writing giving details of unsatisfactory behaviour and directing him to submit within a specific period, such written representations as he may wish to make to exculpate himself from disciplinary action.  After considering such written representations as the officer may make within the specified time, the superior officer shall decide whether:

 

(a)   the officer has exculpated himself; in which case, he shall be so informed in writing and no further action shall be necessary; or

(b)   the officer has not exculpated himself but it is decided that he should not be punished in which case an appropriate  formal letter of advice shall be issued to him which he shall be required to acknowledge receipt of in writing: or

(c)    the officer has not exculpated himself and deserves some punishment, in which case Rule 040404 shall apply.

  1. Where, as in this case, a disciplinary panel was set up, then Rule 040403 will apply.  That Rule provides that:

Where a Tribunal of Inquiry/Personnel Management Board/Administrative Panel set up by the Government makes recommendations of a disciplinary nature on an officer, the State Civil Service Commission or any other such body shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him by the Tribunal of Inquiry/Personnel Management Board/Administrative Panel.  If the officer refuses or neglects to reply to the allegations within a reasonable time or not at all, the Commission or its Agent or any other such body shall proceed to accept and enforce the recommendations of the Tribunal of Inquiry/Personnel Management Board/Administrative Panel, and take such disciplinary action against the officer as it shall deem appropriate.

  1. Further, Rule 040404, referred to in Rule 040402 provides that:

(a)   it shall be the duty of every officer to report  any case of misconduct that comes to his notice to an officer superior to the officer involved.

(b)   When an officer’s misconduct is brought to the notice of his superior officer, it shall be the duty of that superior officer to forward a written report to the Permanent Secretary/Head of Extra-Ministerial Department/Agency without delay.  If he considers it necessary that the officer should be interdicted; such a recommendation shall be made in the report.

(c)    On receiving the report, the Permanent Secretary/Head of Extra-Ministerial Department/Agency shall take action in accordance with Rule 040506 as appropriate and, if necessary, shall interdict the officer.

(d)   At the appropriate point in the investigation, the officer may be suspended in accordance with Rule 040505.

  1. Under Rule 040405 ( Disciplinary procedure for misconduct and serious misconduct),  if it is represented to the State Civil  Service Commission or any other such body that an officer has been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 040406 with a view to dismissal, it may cause an investigation to be made into the matter in such a manner as it considers proper and the officer shall be entitled to know the whole case made against him, and shall have adequate opportunity of making his/her defence.  If, as a result, the Commission or any other such body decides that the allegation is proved, it may inflict any other punishment upon the officer, such as reduction in rank, withholding or deferment of  increment or otherwise.
  2. Rule 040406(vi) procedure requires that:

 

Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Public Service may be dismissed by the State Civil Service Commission or any such body only in accordance with these Rules:

(1) the officer shall be notified in writing of the grounds on which he is proposed to be disciplined. The query should be precise and to the point and must relate the circumstances of the offence, the rule(s) and regulations(s) which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) likely to be used against him and he should be ask to state in his defence that he has been given access to such document(s)

The officer shall be called upon to state in writing, within the period specified in the query, any grounds upon which he relies to exculpate himself.”

 

  1. I have considered the procedure adopted by the Defendant leading to the dismissal of the Claimant, vis-à-vis the elaborate procedure reproduced above, and find as follows:

 

(a)   On the allegation of general inefficiency covered by section 3, Rules 040301, 020302, and 040303; the attention of the Claimant was not drawn to the shortcoming during any counselling/mentoring/coaching session and there is no record that this was done.  In addition there is no proof of warning on three or more occasions in writing, or that the Claimant suffered loss or deferment of his increment.  On this basis, I find that the procedure for removal of the Claimant for inefficiency was not complied with before his dismissal on that ground.

 

(b)   On the allegation of dereliction of duty covered by section 4, Rules 040401 – 040406 I find as follows:

(i)                  That no query, meeting the specification under Rule 040402 was issued.  I find that the letter of 22nd May 2017 written to the Claimant did not state the fact that Claimant needed to exculpate himself from disciplinary action as required by the Rule.  If this requirement was met, it would have led to the application of Rule 040404.  I find that Rule 040402 was not complied with.

(ii)               In a case where a disciplinary panel is set up, Rule 040403 requires that the Commission shall not act upon its recommendation until it has called upon the affected officer to reply to the allegations made against him by the panel.  This was not complied with in this case, as the Defendant acted on the recommendation of the disciplinary committee as shown in exhibit D10 without inviting Claimant’s reaction to the allegation found in that report

 

The invitation letter to the investigation committee – exhibit C5 also did not conform to the Rule as it did not state the allegation, nor did it state the fact that disciplinary actions might ensue.  Exhibit C5 is captioned:

INVITATION TO THE COMMISSION: RE SUIT No.LIC/C/15/2004/2001 – DR. FEMI OLORADANA VS MRS TAIWO OLOKONANA’.

It then states:

“I am directed to request you to appear before an investigation committee that has been constituted in respect of the above caption:

Date

Time

Venue.

Please bring all relevant documents in respect of the matter and also accord the invitation the importance and seriousness it deserves.

 

This in my view, falls short of the requirement of the Rule 040404 already reproduced.

 

(iii)             The observation above, with respect to Rules 040403 and 040404 also applies to the more stringent requirements of Rule 040406.

 

(c)     A consideration of exhibit C5 – the invitation letter to the Commission show that no allegation was made against the Claimant for which he was appearing before the panel to defend himself.

 

(d)   Exhibit D10 – the report of the disciplinary committee shows that it investigated ‘favoritism and perversion of justice’.  However, exhibit C7/D11 – the dismissal letter, indicates the Claimant was dismissed for dereliction of duty and general inefficiency. This Court in Godwin Okosi Omoudu v. Prof. Aize Obayan & Anor Suit No: NICN/AB/03/2012 judgment of which was delivered on 2014-10-08, per B A Adejumo PNICN(as he then was), had occasion to consider a dismissal founded on the report of a panel that investigated a conduct different from the one for which the Claimant was dismissed.  The facts in that case showed that the Defendant University had cause to issue a query to the Claimant for an alleged verbal assault on a senior officer. However, the reason given for the termination of Claimant’s appointment was the report of a panel that investigated the involvement of the Claimant in a shuttle service incident, which panel did not give the Claimant an opportunity to be heard. The Court found that the reason given by the Defendant University for the termination of the Claimant was not established and that there was non-compliance with the conditions of service contained in the staff handbook.

 

See also the decision of this Court in NICN/LA/333/2017 judgment delivered on 1st April 2019.

 

(e)   On the issue of the dismissal having a retrospective effect, exhibit C7/D11 dated 1st August 2017, states that the effective date of the dismissal is 20th July 2017.  This is contrary to the provisions of Rule 040509 of the Lagos State Public Service Rules 2015 which provides that “when an officer is dismissed, no notice or salary in lieu of notice shall be given to him and his dismissal shall take effect from the date on which he is notified”  I find that the retroactive effect of the letter of dismissal (exhibit C7/D11) also violates the law.

 

(f)     Another issue raised by the Claimant is that the investigation committee set up by the Defendant to investigate the matter is irregularly constituted.  Exhibit D10, the report of the disciplinary committee set up by the Defendant is constituted by 5 members.  This is as opposed to the provision of Order 8 Rule 8(1) (2) (a) (b) of the Judicial Service Commission Rules 2009 which provides that such a committee is to be constituted by 3 members.  The Rules states that:

“(1) if the Commission decides to refer a compliant to an investigation committee, it shall appoint an investigation committee for that purpose.

(2) An Investigation committee shall comprise in the case of alleged-

(a) misbehaviour, a chairman who is or has been a judge and not more than two other persons; or.

(b) inability to perform the functions of office, a chairman and two other members with relevant qualifications”

 

  1. The mere fact of the members this disciplinary committee being 5 in number violates the Rules of the Defendant.  The requirement of being a judge or a retired judge does not apply to this case, as the Claimant was not dismissed for misbehaviour.  Also, the allegation of bias is not found, as that has not been proved.

 

  1. An employee with statutory flavour is said to be lawfully dismissed only when the employer complies strictly with the way and manner prescribed by the relevant statute before terminating/dismissing his employment.  It is unlike a master/servant relationship in which what is needed to fulfill the requirement of fair hearing is just that the employee is given opportunity to state his case; see FBN v. Akanji (2017) LPELR-43555(CA); Arinze v. F.B.N. Ltd (2004) 12 NWLR (Pt.888)663.  This is reasonably so since the procedure are set out usually by the employer itself, in its legal instruments.  The least that should be expected of an employer is to comply with a procedure they themselves set up.  See Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 S.C.

 

  1. The Lagos State Public Service Rules itself provide under Rule 040508 that the ultimate penalty for serious misconduct is dismissal.  An officer who is dismissed forfeits all claims to terminal benefits, leave or transport grant subject to the provisions of the Lagos State Pension Reform Law 2007.  That must be why it made stringent provisions that must be followed to ensure that one who is dismissed is given the opportunity to be fairly heard.  Therefore, Rules made in that regard must be strictly complied with.  Where that is not done, the action must be declared unlawful, null and void, for the mere fact of non-adherence to the procedure stipulated by the Rules.  I find that the failure of the Defendant to comply with the procedure in the relevant laws in the dismissal of the Claimant from his employment makes the act of the Defendant against the Claimant contrary to law, and thus illegal., null and void.

 

  1. Issue 3 is whether Claimant is entitled to his Claim.  It is well-settled that the consequence of the breach of the right to fair hearing in an employment governed by statute is that such an employee is entitled to be reinstated. In University of Maiduguri Teaching Hospital Management Board v Dawa (2001) 16 NWLR (pt. 739) 424, it was found that the removal of the plaintiff/respondent violated his right to fair hearing; the Court declared that; “where the provisions of a statute govern the conditions of an employee, the courts regard the employee as having secured a special legal status, other than the ordinary master and servant relationship, with his employer. The employer is bound to comply with those conditions otherwise his act of termination would be declared null and void and any other act based thereon will also be void – per Per NWEZE, J.C.A.in Federal Polytechnic, Ede &Ors v. AlhajiLukmanAdemolaOyebanji (2012) LPELR-19696(CA).
  2. On this issue, whether the Claimant is entitled to his claim; it is the claim of the Claimant and the reliefs sought that a Court must be concerned with.  This is the decision in Society Bic S.A &Ors v Charzin Industries Ltd (2014) 4 NWLR [Pt. 1398] 497 at 551-552 where the Supreme Court held that:

To expatiate, it can safely be said that jurisdiction is determined by what the Plaintiff is demanding and cannot be determined by a situation where the response that is anticipated, if I may say so would be decider. Going contrary to using the Claim as a determinant is like begging the question, allowing the cart before the horse or a possible journey into speculation in getting into materials outside what the initiator of the Court process has put forward.

  1. Based on the findings already made, I hold that the Claimant is entitled to all his reliefs as follows:

 

  1. I declare that the Defendant is in breach of the Claimant’s right to fair hearing in the determination of the Claimant’s employment with the Defendant.

 

  1. I declare that the Defendant failed to comply with the procedures laid down in the relevant laws in the determination of the Claimant’s employment.

 

  1. I declare that the Claimant was still in the employment of the Lagos State Judicial Service Commission up to 2019 when his tenure would have lapsed.

 

  1. Being an employment with statutory flavour, and in view of the first three reliefs already granted, the Claimant is entitled to an order for reinstatement.  The Defendant is hereby ordered to re-instate the Claimant to the position he was with all the benefits attached to the position before his employment was unlawfully interfered with.    This Order recognises that Claimant’s tenure would have lapsed by 2019.  He is therefore to be placed in the position he would have legitimately been had he continued in office till 2019.

 

  1. The Claimant’s monthly salary having been asserted and not denied in any way by the Defendant, the Defendant is ordered to calculate and pay to the Claimant, N69, 000.00 (Sixty Nine Thousand Naira) being his gross monthly remuneration from July 2017, till when his tenure would have ended in 2019.

 

  1. Evidence shows the Claimant’s second tenure commenced in 2014 and was expected to lapse in 2019.  The Defendant, having been ordered to pay Claimant all his salary up to the end of his tenure in 2019, the order for perpetual injunction restraining the Defendant from subsequent interference with the Claimant’s employment with the Defendant is declined.

 

  1. Relief G is for +N1,300,000.00 (One Million Three Hundred Thousand naira) only being cost of prosecuting this suit.  Claimant testified by exhibit C8 that it cost him N1,300,000. 00 to prosecute this case.    The defendant made no response to this relief.  On the authorities, expenses, incurred by a party on Counsel are reasonably compensated.  See the cases of Int’l Offshore Const Ltd v S.L.N. Ltd [2003] 16 NWLR (Pt 845) 157 at 179, and Rewane v Okotie-Eboh  [1960] NSCC 135 at 139 referred to by OBASEKI-OSAGHAE, in Mr. Olufemi Emmanuel Oyewole v. Olabisi Onabanjo University SUIT NO. NICN/LA/273/2013 judgment of which was delivered on November 22nd 2016.    The legal fees incurred by the Claimant are a result of the wrongful actions of the Defendant.  I am convinced that claimant’s entitlement to this relief is established.  It is therefore ordered that the Defendant is to pay to the Claimant, the sum of N1, 300, 000. 00 (One Million, Three Hundred Thousand Naira) being the cost of prosecuting this suit.

In summary, this suit succeeds.  This judgment is to be complied with not later than 60 days from today.

Judgment is entered accordingly.  I make no order as to cost.

 

 

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Hon. Justice Elizabeth A. Oji PhD

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