IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 3RD OF MAY, 2019 SUIT NO. NICN/AK/34/2017
BETWEEN
FADOJU ADERONKE MEAY …………………… CLAIMANT
AND
1. ONDO STATE JUDICIAL SERVICE COMMISSION.
2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ONDO STATE ………..………..DEFENDANTS
3. CHIEF JUDGE, ONDO STATE
4. SECRETARY, ONDO STATE JUDICIAL SERVICE COMMISSION
REPRESENTATION
E. Udofot with him are Olaoluwa Imoru , N.E. Udofot , Olakunle Ajayi for the claimant.
D.F.A Omoloye Principal Legal Officer Ondo State Ministry of Justice, Bode Ayegbusi, A.A. Adeyemi Assistant Chief Legal Officer, H.M. Falowo Assistant Chief Legal Officer, M.O. Busari Legal Officer for the defendants.
JUDGMENT
By a General Form of complaint filed on the 27th of November, 2018 which was later amended, the claimant claimed against the defendants as follows;
A DECLARATION that the 1st and 4th defendants letters of suspension and termination of appointment dated 14/09/2017and 08/11/2017 respectively are irregular, inappropriate, unlawful, unfair, unjust and unconstitutional thereby rendering same null and void and of no effect whatsoever.
AN ORDER setting aside the 1st and 4th defendants’ letter of suspension and termination of appointment dated 14/09/2017 and 08/11/2017 respectively.
A DECLARATION that the claimant still remains in the employment of the 1st defendant and entitled to the unimpeded payment of her salaries, allowances and entitlements enjoyed by other staff of the 1stdefendant (of the claimant’s status) in the employment of the 1st defendant.
AN ORDER of this Honourable Court reinstating the claimant to her position both as an employee of the 1st defendant and as a Magistrate Grade II forthwith or such other cadre or position where her colleagues / contemporaries are at the time of the judgment of this Court.
AN ORDER directing the defendants to pay to the Claimant forthwith all her arrears of salaries, allowances and entitlements payable to her colleagues / contemporaries of the same cadre as at the date judgment all of which the defendants have deprived the claimant by virtue of the purported termination of appointment.
AN ORDER of perpetual injunction restraining the defendants either by
themselves or by their agents, officials, staff and any other person howsoever described but acting for or at the instance of the defendants from further interfering with or impending the claimant’s functions as a Magistrate.
vii. AN ORDER of perpetual Injunction restraining the defendants either by
themselves or by their agents, assigns, officials, workers and/or any other person howsoever described acting for or at instance of the defendants from further terminating the claimant’s employment.
Viii. AN ORDER directing the defendants to pay the claimant the sum of Two Million Naira (N2,000,000.00) general damages for the emotional trauma, disorder and ridicule the claimant was made to suffer by the unconstitutional, illegal, unlawful, oppressive and null conduct of the defendant’s termination of the claimant’s appointment.
By an amended statement of claim, it is the claimant’s case that prior to her suspension and subsequent termination vide the letters dated 14/09/2017 and 8/11/2017 respectively, she worked with the 1st defendant as a Magistrate Grade II and diligently sat at Akure Magisterial District in that capacity. She averred that she applied to the 1st defendant for the employment as a Magistrate in the 2016 and was subsequently offered employment into the Ondo State Judicial Service Commission by a letter dated 31/3/2016 effective from the 1/4/2016 on the grade level 10 step 2. It is her statement that prior to the time she started sitting as a Magistrate, she along with others who were converted and newly employed Magistrates were trained by the Chief Registrar, Deputy Chief Registrar (Establishment and Training), Ondo State and some Chief Magistrates. That she wrote a test prepared by the 1st defendant before she was sworn in by the then Chief Judge of Ondo State Hon. Justice Olasehinde Kumuyi (Retired). She pleaded that on the 11/7/2016, she was posted to Court 9, Akure Magisterial District where she sat as the Presiding Magistrate. That her employment with the 1st defendant was confirmed and gazetted. She pleaded that she was paid a monthly salary as a Magistrate Grade II prior to her purported and unlawful suspension on the grounds of perceived irregularities and lack of due process in her appointment as a Magistrate in the Ondo State Judiciary. She continued that the 1st defendant contrary to her contract of employment unlawfully terminated her appointment on the 8th of November, 2017. She stated that she is entitled to payment of salaries, wardrobe allowance, monthly imprest and leave allowance from the period of October, 2016 –January, 2017 and September, 2017 to the time of filing this suit. She pleaded that her suspension and the subsequent termination of her appointment is unlawful.
The defendants, in their statement of defence denying the averments of the claimant traversed that the 1st defendant is a statutory body vested with the authority to appoint, dismiss, promote and exercise disciplinary control over the High Court staff, Magistrates, President and members of the customary Court and all other staff of the Ondo state Judiciary. That where there is a vacancy for any of the positions mentioned, the 1st defendant at its plenary session decides whether or not a vacancy shall be advertised and where the vacancy is advertised, the 1st defendant shall direct that a short list of qualified candidates be prepared and submitted to it for consideration. That the 1st defendant did not advertise on any notice board or newspaper that there was any vacancy in Magistrates cadre and did not receive any application from the claimant to be considered as its plenary session for appointment as a Magistrate. The defendants averred that sometimes in 2017, they observed irregular and indiscriminate appointment of the Magistrates and some senior staff and other staff into the Judiciary of Ondo State contrary to the Ondo State Judicial Service Commission Law and Regulations CAP 70, Vol. 2, 2006. That it suspended some senior officers including the claimant to review their appointments. They pleaded that the decision to suspend the claimant’s purported appointment among other affected officers was taken by the 3rd defendant and subsequently ratified at the plenary session of the 1st defendant on the 22nd of September, 2017. That the claimant purportedly applied for the post of a Magistrate on the 30th of March, 2016 when the defendant never advertised for any vacancy in the Magistrate cadre and did not hold any plenary session to consider such application. That she was not invited for any oral or written interview before she was purportedly appointed as a Magistrate Grade II in the Ondo State Judiciary. That she was not qualified to be appointed a Magistrate in the Ondo State Judiciary having not attained the required qualification. The defendants pleaded that the purported appointment of the claimant by one Chief S.A. Akinrinsola who was the then Secretary was of his accord and not done on behalf of the 1st defendant. They contended that the claimant’s appointment was not confirmed by the 1st defendant at any of its plenary sessions and that the publication of the claimant’s purported appointment in an official gazette is a mere notice to the general public which does not translate to a regular or lawful appointment. That at its plenary session on the 7th of November, 2017 the defendants resolved to terminate the employment of the claimant with immediate effect upon the payment of her salary arrears for the months of September and October, 2017 and for the month of November, 2017 in lieu of notice. The defendants averred that the claimant’s salary has been paid via her personal emolument card which covered salary paid to her from January, 2017 to September, 2017. The Defendants also states that the delay in the payment of arrears of salaries and allowances from August to December, 2016 is not peculiar to the claimant but to all workers in the Public Service of Ondo State, but that claimants salaries for the period of September and October, 2017 and for the month of November, 2017 in lieu of notice have been paid to her. That she cannot Preside and she is disqualified to preside as a sitting Magistrate over any matter in Court.
The Claimant during trial testified for herself as CW, she adopted her statement on oath dated 8th of May, 2017 which is in all fours with the facts captured earlier as her evidence in this case; she sought to tender some documents which were admitted in evidence by the Court and marked Exhibits FM-FM7. The defendants during trial testified through one Williams Adebisi Daomi, the Secretary of the 1st defendant as DW. He also adopted his statement on oath dated 28th of June, 2018 as his evidence which is equally in tandem with the defendant’s case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibits WA-WA5.
At the close of trial parties caused their written addresses to be filed in compliance with the rules of this Court; the Defendants filed their final written address on the 2nd January, 2019 and distilled three issues for the determination of the Court; the claimant on the other hand filed her written address on the 1st of February, 2019 and also canvassed three issues. Counsel on both side argued some issues, pertinent parts of which would be referred to in the course of writing this judgment.
I have carefully read through the processes filed by the parties and the supporting documents, the testimony of parties, their respective written submissions as posited by counsel on both divide; I believe that the issues that would best address the concern of the parties in this suit are:
Whether or not the appointment of the claimant is contrary to the law;
Whether or not the suspension of the claimant is lawful;
Whether or not claimant’s employment was lawfully terminated; and
Whether or not the claimant is entitled to her claims.
I need to first address an issue raised by learned defence counsel, this is in respect of a document tendered by the claimant, i.e. Exhibit WA5 through DW1. The grouse of learned Defence counsel is on the ground that it is not sufficiently supported by facts pleaded by the claimant in paragraph 7 of the claimant’s reply to the 1st – 4th defendants’ statement of defence. She submitted that no proper foundation was laid in the pleadings or in evidence that Exhibit WA5 is the authentic list of serving Magistrates in Ondo state. She continued that by Order 3 Rule 9 (d) of the National Industrial Court of Nigeria Rules 2017, it is trite that evidence of facts not pleaded goes to no issue and are bound to be ignored. She cited the case of Ohochukwu v Attorney General Rivers State [2012] 6 NWLR (Pt. 1295) 53. Learned counsel further contended that Exhibit WA5 is not relevant to the issues tried before this Court and hence should be inadmissible and also set aside. Learned defence counsel further posited that a careful examination of the document reveals that it is a photocopy of a public document and ought to be certified in accordance with the provisions of Sections 104 and 105 of the Evidence Act, 2011. It was submitted that having failed the required test of probative value to be attached, the Court ought to expunge the said exhibit from its record. Learned counsel to the claimant in response stated that the contention of the counsel to the defendants at paragraphs 2.05 of their final written address is misconceived as the claimant vide paragraph 7 of her reply to the statement of defence, pleaded the fact and equally made reference to “the list of serving Ondo State Magistrates”. He submitted that the law is settled that documents in support of facts pleaded need not be specifically pleaded to be admissible in evidence so long as facts by which such a document is covered are expressly pleaded. He cited the case of Sanni- Omotosho v Obadairo [2014] ALL FWLR (Pt. 745) 230 paras B-C in support of his assertion. Counsel in response to the defendants argument that no proper foundation was laid in the pleadings or in evidence that Exhibit WA5 is the authentic list of serving Magistrates in Ondo State submitted that this argument is an afterthought as it is apt to state that DW1 identified and /or recognized the list of Magistrate in Ondo State also he equally identified his name and that of the claimant as well. The witness through which Exhibit WA5 was tendered never debunked it as well thus it is late in the day for learned counsel to allege that the said Exhibit is not authentic. Counsel in answer to the submission that Exhibit WA5 was not frontloaded, submitted that the current position of the law is that although parties to an action are bound to obey and comply with the rules of court, however it is the Evidence Act, 2011 and not the Rules of Court that governs the admissibility of evidence and there is no provision in Evidence Act that stipulates that a document which is not frontloaded is inadmissible. He cited in support the case of Dunalin Investment Limited v B.G.L. Plc [2016] 18 NWLR (Pt 1544) 340 paras D-E. It is learned counsel’s submission that Exhibit WA5 was not tendered through DW1 as a public document. He urged the Court to find that Exhibit WA5 was pleaded, it is relevant and deserves to be ascribed probative value.
It is noteworthy that the document in question Exhibit WA5 is a list of Magistrates in the Ondo State Judiciary, tendered through DW1 who identified the list of Magistrate when he stated under cross-examination that his name is the 11th and while the claimant’s is 78th on the list. The Court admitted this evidence and ordered parties to further address it as to the weight to attach to same in their final written addresses. It is the defendants’ position that Exhibit WA5 is not sufficiently supported with facts; a cursory perusal of paragraph 7 of the claimant’s reply to the defendants’ statement of defence discloses that the claimant vide the said paragraph averred that “the said suspension was intended to be permanent as the defendants did not only declare the post of the claimant vacant but proceeded immediately to, among others remove the claimant’s name from the list of serving Ondo State Magistrates.” From a cursory look at the documents tendered in Court, the claimant in this suit tendered Exhibit FA12 which is the Ondo State Judiciary, Legal year 2017/2018. An examination of this Document ably justifies and suits as evidence for her pleadings as averred at paragraph 7 of her reply to the defendant’s statement of defence. I say so on the reasoning that Exhibit FA12 clearly reveals that the claimant’s name was omitted from the list of Magistrates in Ondo State and in tandam with her pleadings at paragraph 7 therein. I really do not see any similitude of paragraph 7 of her reply to the defendant’s statement of defence and Exhibit WA5 as Exhibit FA12 is sufficient evidence to buttress her averments therein. Now, what is the propriety of Exhibit WA5 before this Court, is it relevant or irrelevant? It is settled law that relevancy is the precursor to admissibility and for a document to pass the test of admissibility must first of all be relevant in all intent and purposes to the facts in issue. See the cases of Olojede & Anor v Olaleye & Anor [2012] LPELR 9845 CA; Oyebode & Anor v Gabriel &Ors [2011] LPELR 8693 CA. The next question to answer is what the relevancy of Exhibit WA5 is and what is the weight to attach to same? By Okunrinjeje Anor v. Ajikobi [2018] LPELR-44850CA, the fact that a document is certified and admissible does not also mean that it will automatically attract weight, or sufficient weight, to prove whatever it was tendered to support. I find from the facts of paragraph 7 of the claimant’s reply to the defencce that Exhibit WA5 has no relevance to the fact in issue as rightly posited by the defendants because the crux of this suit centers on whether or not the suspension and termination of the claimant’s employment is unlawful and Exhibit WA5 to me is in no way establishing that fact and would not in any way occasion grave injustice on the part of the claimant if no weight is attach to it. It is obvious that what the claimant sought to achieve has been successfully done vide exhibit F12 on record. It is in this light that I find that exhibit WA5 serve no veritable purpose other than what exhibit F12 has served, the Court cannot therefore attach any weight to it. It is trite that where the Court wrongly admits a document in the course of trial, it is the duty of the judex at the stage of writing a judgment to expunge such a document from its record. The Court has the power to expunge the inadmissible evidence. See the cases of Nigeria Bank for Commerce and Industry v. Ogbemi & Anor, Suit No: CA/J/93/2006, a judgment delivered on 25th May, 2012. Hashidu & anor v Goje & Ors [2003] LPELR 10310 CA; Metalimplex v A.G Leventis& Co ltd [1976] 2 SC 91. In the case of Agbaje v Adigun [1993] 1 NWLR (Pt. 269) 261, the Apex Court held that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is been considered. The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the Court can make a finding of fact. See also the case of Inyang v Eshiet [1990] 5 NWLR (Pt. 149) 178. Applying this authority to this instant, it is clear that Exhibit WA5 as stated supra has no weight. Moreso, it is evidence on unpleaded facts which the law enjoins to go to no issue. See the case of Presidential Implementation Committee on Federal Government Landed Properties v Aywila & anor [2017] LPELR 43204 CA. In all, I hold that Exhibit WA5 was wrongly admitted in evidence and thus expunged from the record of the Court for lacking in weight.
Now, to issue one, on whether or not the appointment of the claimant is contrary to the Magistrate Court Law; it is the defendants’ argument by paragraphs 16, 17 and 18 of its amended statement of defence that the claimant was not qualified to be appointed as a Magistrate in Ondo State having not attained the required qualification. They averred that the claimant had a third class grade at her University and was unlawfully appointed a Magistrate grade II on the 31st of March, 2016 barely six months after she finished from the Nigerian law school and received her certificate of call to the Bar on the 21st of October, 2015 hence lacking the minimum One year post call requirement before appointment as a Magistrate. It is also the defendants’ argument by paragraph 4.04 of their final written address that the provisions of the 1999 Constitution and the Ondo State Judicial Service Commission Law, 2006 vests in the 1st defendant the power to appoint, dismiss and suspend the claimant, that any action taken by the 1st defendant must be ratified or adopted by a majority of its members in her plenary session or meeting, otherwise such an action would be null and void. She stated further that it follows therefore that it is only the 1st defendant, where ratified in her plenary session that can validly appoint a person as a Magistrate in the Ondo state Judicial Service. Learned counsel contended that it is the claimant’s pleading and testimony that upon receiving an information from her friend of the vacancy in the 1st defendant, she applied for the post of a Magistrate in the 1st defendant and was offered an appointment to a pensionable establishment and subsequently appointed a Magistrate Grade II by the 1st defendant on the 31st of March, 2016. Counsel posited that the claimant failed to lead credible evidence to show that her appointment was done in accordance to the process as provided vide Sections 12, 13 and 16 of Part IV of the Ondo State Judicial Service Commission Law and Regulation Cap 70 Vol 2, Laws of Ondo State of Nigeria, 2006. Learned defence counsel argued further that it is the position of the law that in order to be entitled to a declaration, a party must show evidence of a future legal right subsisting as the onus of proof lies on the party claiming and he must succeed on the strength of his own case and not on the weakness of the defence. She cited the cases of Nyesom v Peterside [2016] 7 NWLR (Pt. 1512) 452; Onovo v Mba [2014] 14 NWLR (Pt. 1427) 391. Counsel submitted that DW1 in his evidence testified that the 1st defendant never invited the claimant for any oral or written interview before she was purportedly appointed as a Magistrate, that he equally stated that the 1st defendant did not at any of her plenary sessions deliberate on the appointment of the claimant as a Magistrate on or before 31st March, 2016 or adopt or ratify any special consideration for the claimant to fill any vacancy for Magistrates in the Ondo State Judicial Service. She further argued that a look at Exhibit FM discloses that one Chief S.A. Akinrinsola who was the erstwhile Secretary of the 1st defendant appointed the claimant without the lawful consent and authority of the 1st defendant. Counsel submitted that the Secretary of the 1st defendant is not a member of the 1st defendant and his duties are only administrative and does not include the appointment of Magistrate or any other staff of the Commission above Grade level 07 as provided by Regulations 4 and 5 of the JSC Regulations. Counsel submitted further that the claimant has failed to avail the Court with any documentary evidence to substantiate her assertion that her appointment is valid, regular and subsisting.
In response, learned claimant counsel submitted that the class of degree in law is not a requirement for appointment as a Magistrate in Ondo State as many of the existing Magistrates in Ondo state including the current Chief Registrar of the Ondo State High Court in person of Magistrate Abe graduated with a third class in law. That this was buttressed by DW1 under cross examination where he stated thus: “As the Secretary of the Commission, I am in possession of the credential of workers including that of the Chief Registrar J.O Abe. J.O Abe made a 3rd class at the University and he is the Chief Registrar today”. He continued to state that there is no law that makes the grade of a lawyer a requirement for his/her appointment as a Magistrate in Ondo state and even in other States of the Country. On the claim of the defendants that the claimant is less than one year post call at the time of her appointment as a Magistrate, counsel submitted further that in the Legal Profession, the lawyer’s years in practice is measured by the years of payment of practicing fees not only in 2015 but also in 2016 making her a fully qualified legal practitioner for one year before her appointment and that moreover, a lawyer is a year at the bar from the call date. Counsel contended that assuming without conceding that the claimant is not up to a year post call as a lawyer that the defendant was in the know of same when she submitted her certificates and still went ahead to appoint her as a Magistrate therefore they are deemed to have waived any specific insistence on the years of qualification. He cited in support Section 168(1) of the Evidence Act, 2011.
It is pertinent to reiterate the testimony of the claimant in this suit where she stated that she was offered an appointment by the 1st defendant vide Exhibits FM on the 31st of March, 2016 and effective from 1st day of April, 2016. She equally stated in her testimony that prior to her employment she got the information that there was vacancy for the position of a Magistrate in the Ondo State judiciary, that she applied formally sometimes in March, 2016, submitted her certificates and attended an oral interview and later wrote a test. She submitted that after her appointment she attended training and was trained by the Chief Registrar, Deputy Registrar (Establishment and Training), Ondo State and some Chief Magistrates. She continued in her paragraph 24 of her amended Statement of fact that her employment with the defendants have been confirmed and gazetted. With regards to the validity of her employment, a scan through the documents before the Court discloses by Exhibit FM4 that the claimant was called to the Nigerian Bar on the 21st of October, 2015. It is also revealed by Exhibit FM that the claimant was offered an appointment into the 1st defendant on the 31st of March, 2016. A calculation of both dates reveals that the claimant was 5 months 11days at the bar when she was appointed as a Magistrate in the establishment of the 1st defendant. By Section 7(2) (d) of the Magistrate Courts Law of Ondo State Laws of the Federation cap 90, 2006 it provides that;
“7. There may be appointed from time to time by notice in the state gazette such number of Magistrate who shall be styled Chief Magistrate, Senior Magistrate I, Senior Magistrate II, Magistrate I, Magistrate II, Magistrate III as may be specified in such notice.
(2)No person shall be appointed a Chief Magistrate, Senior Magistrate or Magistrate unless he is and has been qualified to practice a legal profession in Nigeria for a period not less than;
(d) One year in the case of a Magistrate Grade II”
From the above it is clear that the claimant should be at least one year at the Bar before she could qualify for appointment as Magistrate Grade 11. It is the claimant counsel’s argument that in the Legal Profession, the lawyer’s years in practice is measured by the years of payment of practicing fees not only in 2015 but also in 2016 making her a fully qualified legal practitioner for one year before her appointment and that a lawyer is a year at the bar from the call date. I am in agreement with the learned claimant’s counsel on this point. Which is that the claimant as at the time she was appointed a Magistrate Grade 11, she was deemed in law to have been one year at the Bar and that is in compliance with Section 7 (2) of the Magistrate Courts Law. The defendants however, contended that a look at Exhibit FM discloses that one Chief S.A. Akinrinsola who was the erstwhile Secretary of the 1st defendant appointed the claimant without the consent and authority of the 1st defendant. The defendants I must say, have the onus to prove that assertion that Chief Akirinsola appointed the claimant without the consent of the 1st defendant. They failed or refused to substantiate their assertion as I held in the case of Iringe Koko Charles Olatundun v. Ondo State Judicial Service Commission & Ors, suit no. NICN/AK/35/2017, a judgment delivered on 3rd December, 2018. It is actually not in doubt that the claimant in this case was an employee of the 1st defendant although on probation by exhibits FM, hence the 1st defendant exercised its disciplinary powers against her. It is based on this that I find that the appointment of the claimant into the establishment of the 1st defendant on the 31st of March, 2016 with effect from 1st of April, 2016 is not contrary to the provision of the Ondo State Magistrate Court’s law. I so find.
Respecting issue two, it is the claimant claims that the 1st and 4th defendants’ letters of suspension dated 14/09/2017 is irregular, unlawful, unfair, unjust and unconstitutional thereby rendering same null and void and of no effect whatsoever. It is the position of the learned defence counsel that the 1st defendant vides the Constitution specifically captured in Item 5 & 6 of Part II of the 3rd Schedule 1999 Constitution as amended and Section 4 (a) of the Ondo State Judicial Service Commission Law, 2006 has an unfettered right to discipline the claimant and this includes the right to suspend her. She cited the case of Udemah v Nigeria Coal Corporation [1991] 3 NWLR (Pt. 180) 479 at 486. Learned counsel submitted that the onus lies heavily on the claimant to prove that her suspension is irregular, unlawful, unfair, unjust and unconstitutional by placing credible and cogent evidence before the Court. She posited that the claimant was suspended by the 1st defendant on the 14th of September, 2017 due to perceived irregularities and lack of due process in her appointment as a Magistrate in the Ondo State Judiciary. She equally contended that the suspension of the claimant was not a punitive measure as she puts it but to allow the 1st defendant investigate and review the appointment of some Magistrates and other senior officers in the Judiciary. That it is evident that at its plenary held on the 22nd of September, 2017, the 1st defendant deliberated on the suspension of all officers having irregular appointment and ratified the action of the 3rd defendant, therefore the suspension of the claimant is valid and lawful. The learned claimant counsel in response argued that in an appointment with statutory flavour, where an employee is suspended without recourse to the relevant statute, the suspension is null and void. It is the position of learned counsel to the claimant that the defendants did not comply with Part IV Sections 31(1), 44, 45 and 47 of the JSC Regulation. He also posited that the JSC Regulation does not empower the 4th defendant to set up a committee to discipline and there was nothing showing that the committee set up by the 4th defendant was on the instruction of the 3rd defendant. Counsel submitted that the committee set up by the 4th defendant breached the right of the claimant to fair hearing as she was never aware of the committee and was not afforded an opportunity to state her defence. Counsel posited that as at the time when claimant was suspended there was not plenary decision of the 1st defendant and that the 3rd defendant took that decision unilaterally therefore that such decision is ultra vires the power of the 3rd defendant and the subsequent purported ratification cannot validate an invalid act of the 3rd defendant.
Suspension of a person from work in law is a temporary measure pending the outcome of the disciplinary process against him. See the case of NJC & Ors v Aladejana & Ors [2014] LPELR 24134 CA. By Longe v. First Bank [2010] LPELR-1793SC; Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. It is settled law that an employer has power and right to discipline its employees in order to ensure orderliness and discipline in the organization /business and such disciplinary actions includes but not limited to issuing of queries, warning, suspension, interdiction, termination and dismissal. See the cases of Mr. Torkuma Abunku v Benue State Government & 6 Ors [2016] 65 NLLR (Pt 232) 613. Suspension of a person from work is a temporary measure pending the outcome of the disciplinary process against him see the case of Longe v First Bank of Nigeria Plc supra. By the provision of Item 5 & 6 of Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) empowers the State judicial service commission at item 6 (c) “to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal, magistrates, judges and members of Area Courts and customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this Constitution.” (mine for emphasis) and Section 4 (d) of the Ondo State Judicial Service Commission Law and Regulations, 2006 which vest the 1st defendant with power to “appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, magistrates, presidents and members of customary Courts and all members of the staff of the judicial service of the state not mentioned in the Constitution.” With regards to the argument of claimant counsel that the 4th defendant does not possess the power to set up the committee that suspended the claimant and that the 3rd defendant unilaterally suspended the claimant arbitrarily. It is clear vide Section 4 (d) of the Ondo State Judicial Service Commission Law and Regulations supra that the 1st defendant is vested with power to exercise disciplinary control over the claimant and this it has done vide its alter ego the 3rd defendant who instructed the Secretary and not on his own accord as the claimant may want this Court to believe “to look into the issue of those involved having double letters of appointment at the completion of exercise and withdraw same” to which was duly ratified by the 1st defendant at its plenary session on the 22nd of September, 2017. In this instant case, it is harmonious with legal reasoning that the 1st defendant can suspend its employees in this case, the claimant when necessary and not on the grounds of misconduct simplicita, it might be for purposes of investigation/facts finding or review as in this case and this cannot amount to a breach of the fundamental right of the employee. See the cases of Amadiume v Ibok [2005] LPELR 5730 CA; Ayewa v UNIJOS [2000] 6 NWLR (Pt. 659) 142. It is in consequent of this that I find that the suspension of the claimant dated 14th of September, 2017 is lawful. I so find and hold.
Regarding issue three, it is claimant’s claim that termination of her appointment dated 08/11/2017 are irregular, inappropriate, unlawful, unfair, unjust and unconstitutional thereby rendering same null and void and of no effect whatsoever, that she still remains in the employment of the 1st defendant and entitled to be reinstated back into the establishment of the 1st defendant. Learned defence counsel posited that by a careful reading of Exhibits FM and FM2 (the claimant termination letter dated 08/11/2017), the claimant appointment is to be on a probationary period of two years or for such longer period as may be deemed advisable and by virtue of Exhibit FM, her appointment may be terminated by either parties on the issuance of one month notice or salary in lieu of notice. Cited in support is Section 29 of the JSC Regulation and the cases of Ihezukwu v University of Jos [1990] 4 NWLR 596; Baba v Nigerian Civil Aviation Training Centre [1991] 5 NWLR (Pt 192) 388 at 389. Counsel submitted that when it was discovered that the claimant’s appointment as a Magistrate was not done in accordance with the laid done procedure in the Ondo State Judicial Service Commission Law and Regulation, it terminated the appointment of the claimant and she was paid one month salary in lieu of notice which she admitted to have received. In response, counsel to the claimant submitted that it is not mandatory or compulsory for an officer to spend minimum of 2 years before confirmation; invariably an officer can be on probation for less than 2 years. It is his further argument that by Rules 02303 of the Ondo State Civil Service Rules which provides for the publication in the official gazette of names of officers confirmed and that in fulfillment of the provision, the name of the claimant upon confirmation was published in the official gazette of Ondo State Exhibit FM3. Counsel argued that the appointment of the claimant being one tainted with statutory flavour ought to be terminated in accordance with the extant Ondo State Judicial Service and Civil Laws/Rules and Regulations. Counsel posited that assuming without conceding that the claimant was a probationary staff, there was nothing on record evincing the fact that she was alleged to the satisfaction of the Head of Department where she served or by her superior that she was not qualified for the efficient service to warrant the determination of her employment as provided by Section 29 of the JSC Regulation supra. That also the procedures stipulated in the said provisions was not followed in the termination of a probationary staff. He continued to state that it is settled law that where a statute law/regulation provides unambiguously for an act to be done in a particular manner, failure to perform that act in the prescribed manner amounts to noncompliance and its effects cannot be waived. He cited the case of Oyama v Aigbe [2016] All FWLR (Pt. 840) 1276 at 1282; Comptroller- General of Custom v Gusau [2017] All FWLR (Pt 911) 422. He urged the Court to hold that the termination of claimant’s employment is unlawful.
In contract of employment or service generally, where an employee alleges wrongful termination/dismissal of the employment by the employer, the onus lies on him, in law to prove that the termination of his/her appointment was wrongful in order to succeed in the claims he makes against the employer. To discharge the burden, she must prove that she is an employee of the employer, she must Place before the court the facts by way of pleadings, the terms and conditions of the employment, evince to the Court who can appoint and who can terminate the appointment and finally the manner or circumstances the appointment can properly be determined. See the case of John Oforishe v. Nigerian Gas Co. Ltd [2017] LPELR-42766 SC]. The Claimant in this case has placed before the Court the Condition of her Service (Exhibit FM), i.e. her letter of appointment and also made reference to the fact that her appointment is regulated by the Ondo state Judicial Service Commission Law and Regulation made thereunder as well as the Civil Service Rules. It is therefore, germane to state that this Court will consider all these documents holistically in the determination of this case as required in labour jurisprudence.
The law as stated above is basic that he who asserts must prove the veracity or existence of the assertion. By virtue of Section 137 (1) of the Evidence Act 2011, in civil cases, the burden of proving the existence or non-existence of a fact lies upon the party against whom judgment would be given if no evidence were adduced by either party. Now with regards to the arguments of the defendants that the claimant in this suit was on probation before her termination and hence not subject to the procedure for termination accorded to confirmed staff. It is important to state that from the period of 31st of March, 2016 till 8th of November, 2017 is about a year and nine months. It is crystal clear that by Exhibit FM at paragraph 1 (a) – (d) which I reproduce for ease of reference thus;
That the appointment will be “on probation” for two years or for such longer period a may be deemed advisable.
That within the probationary period if it is established to the satisfaction of the Head of Department in which you are serving that you are no[Sic] qualified for efficient service, your appointment may be terminated at any time in accordance with paragraph (c) below without any compensation.
That, while you remain on probation, unless you are dismissed, the Government may, at any time, terminate your engagement by a month notice in writing or by payment of a month’s salary in lieu of notice.
That at any time, unless you are dismissed, you may terminate your engagement by a month notice in writing or with the consent of your head of department by the payment of a month’s salary in lieu of notice.”
The claimant was still under probation when her employment was terminated by the 1st defendant vide the outcome at its plenary session that deliberated on the issues leading to her suspension. The claimant in contrary has argued that by virtue of the fact that her name was published in the Ondo state Gazette her employment was hence confirmed. I beg to disagree with claimant in this regard and hinge my reasoning on the constant and sound position of the law that he who asserts must prove the existence of such facts. The burden of proof initially rests on the claimant to lead or introduce credible, cogent or believable evidence in line with his pleadings to enable him/her sustain and win his/her case against the Defendant. The onus which oscillates between the claimant and the Defendant will not shift until the Claimant whose principal relief before the Court is declaratory has made out a prima facie case against the defendants. See Akinbola v. Ministry for Federal Capital Territory & Anor [2018] LPELR-45848CA. In this instant case the claimant has not by any shred of evidence credibly substantiated the fact that her appointment was duly confirmed as there is no document on record evincing so. Also the defence of claimant that her appointment was duly ratified by the publication of her name in the defendants’ official gazette for the year 2017(exhibit FM3) does not hold water as Rules 02302 of the Ondo State Civil Service Rules supra, provides that to be eligible for confirmation in the permanent establishment, an officer on probation is required to pass the prescribed examination appropriate to his appointment. There is nothing on record disclosing the adherence to this rules by the claimant and the publication of her name in the official gazette as rightly posited by the defendants’ counsel and as I have stated supra is a mere notification to the general public of the names of its judicial officers at the period so published and should not be deemed as confirmation of appointment by the 1st defendant. The failure of the claimant to prove by cogent and trustworthy evidence that her employment was confirmed goes to no issue. In the circumstance, I find and hold that claimant’s contention that she was a confirmed staff before her appointment was terminated is lacking in merit and unfounded. Consequent upon which I find that the claimant was a probationary staff when her appointment was terminated. I so hold.
The next question to answer is was the appointment of the claimant validly determined. Learned counsel to the defendants by paragraph 4.27 of their final written address submitted that the claimant’s appointment was terminated and she was paid one month salary in lieu of notice in line with her conditions of service.in response, learned claimant counsel posited at paragraph 4.11 of his written submission that as at the time this suit was filed by the claimant on the 27th of November, 2017 by the original General form of complaint, the claimant was being owed salaries, allowance and entitlement for October, 2016- January, 2017 and September, 2017 to the time of filing this suit. He submitted that the money being owed the claimant as well as the November 2017 salary in lieu of notice was paid by the defendants and that this was confirmed by the claimant under cross-examination thus “I got an alert for September, October and November, 2017 in January, 2018”. Learned claimant’s counsel continued that where an employment has statutory flavour, the mere acceptance of salary in lieu of notice by the employee cannot validate the invalid and void act of termination of his employment done contrary to the stipulations of the laws and regulations governing such appointment of staff on probation. He cited the case of Alhassan v ABU Zaria [2010] All FWLR (Pt. 538) 962 at 1003 and urged the Court to so hold.
I have stated supra in this judgment that claimant’s employment is regulated by the JSC Laws, Regulations and as stated in exhibit FM, paragraph 1 (f) by the Civil Service Rules of Ondo state. Paragraph (f) specifically stated thus; “That you will be subject in all respect to all conditions of service stipulated from time to time in Civil Service Rules 1999 and other government regulations and instructions”. I must also quickly state here that if parties do not intend to be bound by the regulations, laws and the Civil Service Rules, they would not have included clause (f) of exhibit FM, i.e. claimant’s letter of appointment. It is in the light of this that I will capture hereunder the provisions of JSC regulation and the Civil Service Rules as they both relate to termination of appointment of a staff on probation thus-
By regulation 29 of the Judicial Service Commission Regulations, the 3rd defendant may terminate the appointment of an officer as stated hereunder thus-
“29(1) Where an officer holds an appointment on probation and the Chief Judge at any time during the period of probation is of the opinion that the officer’s appointment should be terminated, the Chief Judge may direct the Chief Registrar subject to paragraph (3) of this regulation, to make recommendation to the Commission accordingly
(3) Where the Chief Registrar proposes on the direction of the Chief Judge to recommend to the Commission that the appointment on probation of the officer should not be confirmed but be terminated, the Chief Registrar shall inform the officer of his intention and shall afford him an opportunity of submitting representations, if any before transmitting such representations, with his observations to the commission, or if the officer does not avail himself of the opportunity to submit representations before a date specified by the Chief registrar (which date shall allow a reasonable interval for the purpose) he shall report the fact to the Commission”
While the Civil Service Regulations Regulation 40 (1) and (3) which provision is impairi materia with that of the JSC regulations provides thus-
“40 (1) where a public officer holds an appointment on probation and the Head of department at any time during the period of probation is of the opinion that the officer’s appointment should be terminated, the head of department shall, subject to paragraph (3) of this Regulation, make a recommendation to the Commission accordingly, if the officer is in category 1 or 2, or terminate the appointment if the officer is in category 3.[emphasis mine]
(3) Where the Head of Department proposes to recommend to the Commission or to decide, as may be appropriate to the category of the officer concerned, that the appointment on probation of that officer should not be confirmed but should be terminated, the Head of department shall inform the officer of this intention and shall afford him an opportunity of submitting representation, if any, before making his decision, or transmit such representations with his observations to the Commission, accordingly as is appropriate, or ,if, in any case where the head of department proposes to make recommendations to the commission as aforesaid, the officer does not avail himself of the opportunity to submit representations before a date specified by the head of department (which date shall allow a reasonable interval for the purpose) he shall report the fact to the Commission”
I am not unmindful of paragraph (C) of exhibit FM, i.e. claimant’s letter of appointment, which provides “That, while you remain on probation, unless you are dismissed, the Government may, at any time, terminate your engagement by a month notice in writing or by payment of a month’s salary in lieu of notice.”. This clause of exhibit FM cannot be read in isolation of clause (f) of the same document. It would have been a different scenario if clause (f) was not included in claimant’s letter of employment, the Court would have had no choice than to accede to the position of the defendants in applying clause (C) alone. However, the Court herein must of necessity and in accord with labour jurisprudence consider all the above captured terms of the employment in arriving at a just decision in this case.
Now, a community reading of the terms of the claimant’s appointment requires that for the claimant’s appointment to be terminated, the 1st defendant has an onerous task of first complying with the provisions of regulation 29 of the JSC regulation which is in all fours with the civil service Regulations 30(1) and (3) before the payment of salary in lieu of notice should apply. It is true that the claimant in this suit has admitted that she was paid for the month of September, October and November 2017 albeit in January, 2018 which was two months after the termination of her appointment by the 1st defendant without compliance with the terms of her appointment. I am equally mindful of the position of the law as it relates to probationary staff, which is that they are under watch and observation by employer and may choose to determine its relationship with him/her at anytime as long as it’s in compliance with the terms of the contract. By Alhassan v. A.B.U. Zaria supra. The Court of appeal in that case held that ‘Where a statutory requirement for exercise of a legal authority is laid down, it is expected that the authority would follow the requirement to the details. It was further reasoned in that case that payment of salary in lieu of notice cannot validate a void or invalid unlawful/wrongful termination/dismissal. The import of this is that in this instant, the payment of the one month salary in lieu of notice to the claimant in January 2018, after the 1st defendant has breached the terms of her contract as stated above, thus making her termination unlawful, cannot vitiate the unlawful termination of claimant’s employment in November 8, 2017. See also the Apex Court decision in the case of Military Administrator of Benue State v. Ulegede[2001]17 NWLR (PT.741)194, relied on in Alhassan’s case supra. In all, I find that the termination of the claimant’s appointment is in breach of the JSC regulations and Civil Service Rules and thus unlawful.
On issue four, whether or not the claimant is entitled to her claims. It is the claimant’s claims that she is entitled to all her arrears of salaries, allowances and entitlements payable to her colleagues / contemporaries of the same cadre as at the date judgment all of which the defendants have deprived her by virtue of the purported termination of appointment. The learned defence counsel argued that the claimant is not entitled to the salaries, allowances, imprests and other emoluments attached to the office as Magistrate Grade II having being appointed as such without the due process of the law. I have held supra that the termination of claimant’s appointment is wrongful. Is she then entitled to her claims? The import of my finding is that although the claimant was on probation at the time of the termination of her appointment, and the law is that an officer under probation is still under watch by his employer. I wish to repeat here that the employer has a leeway to determine her employment howbeit in compliance with the terms of her contract. It is in the light of this that I find and hold that claimant is entitled to her claim for reinstatement until her appointment is properly determined. She is entitled to her arrears of salaries also. I so find and hold.
On claimant’s claim for perpetual injunction restraining the defendants whether by themselves, agents or privies from further interfering with or impeding the claimant’s functions as a Magistrate and from further terminating the claimant’s employment. It is settled law that it will be unfair to fetter the rights of the defendants in this regards as both parties in a contract of employment have the liberty to walk away from the contract entered into but in accordance with the terms agreed to. In this instant case the Court cannot restrain the defendants from exercising their rights under the contract. To accede to the claimant’s prayers will occasion injustice to the defendants. It is in consequence of this that I find that the claimant’s claim for perpetual injunction fails.
On her claims for damages in the sum of Two Million Naira (N2, 000,000.00) general damages for the emotional trauma, disorder and ridicule the claimant was made to suffer by the unconstitutional, illegal, unlawful, oppressive and null conduct of the defendant’s termination of the claimant’s appointment. It is trite that damages are the consequence of the act complained of, the position of the law is that before the grant of damages, it must be established that the party claiming same is so entitled. In this case, the claimant did not prove any of the above situations against the defendants, for her to have been entitled to such a claim in damages. Merely stating that she suffered emotional trauma and all sorts alleged without more, cannot entitle her to this claims. It is upon this basis that I find that claimant’s claims for damages fail.
In conclusion, it is obvious on record that the claimant’s claims succeeds in part and fail in other parts. I therefore, declare and order as follows-
That claimant was an employee of the 1st defendant before her appointment was terminated by the 1st defendant.
That she was on probation at the time of the termination of her appointment.
That the suspension of claimant by the defendants is lawful.
That the defendants breached the terms of her contract upon termination and therefore unlawfully terminated her appointment.
That the claimant is entitled to be reinstated back to her appointment as Magistrate Grade 11.
That claimant’s reliefs vi, vii and viii fail.
No award as to costs.
Judgment is accordingly entered
Hon. Justice Oyewumi O. O
Presiding Judge
