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National Industrial Court

Falowo Roland Oluwagbenga -VS- Ondo State Judicial Service

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

                        HOLDEN IN ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

 

DATED: 5TH OF FEBRUARY, 2020              SUIT NO.: NICN/AK/11/2018

 

BETWEEN:

 

FALOWO ROLAND OLUWAGBENGA      ………….           CLAIMANT

 

AND

 

  1. ONDO STATE JUDICIAL SERVICE COMMISSION
  2. SECRETARY, ONDO STATE JUDICIAL SERVICE COMMISSION
  3. CHIEF JUDGE, ONDO STATE …………….                DEFENDANTS     
  4. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ONDO STATE                                                                 

 

REPRESENTATIONS:

Mayowa Lucas with him E.I. Olaborede, O.O. Adesanmi for the claimant

A.A Adeyemi Mrs. (Assistant Chief Legal Officer Ondo State Ministry of Justice) for the defendants

 

JUDGMENT

The claimant filed this case vide a General Form of Complaint with all his accompanying processes on the 8th of February, 2018. He amended it on the 10th of May, 2019, wherein he is seeking these reliefs against the defendants jointly and severally as follows;

 

  1. A declaration that the purported letter of suspension dated 14/09/2017 is irregular, inappropriate, unlawful, unfair, unjust, malafide and unconstitutional being in contravention of the claimant’s condition of service, 1st defendant constituting statute, and the 1999 Constitution thereby rendering same null and void and of no effect whatsoever.
  2. A declaration that the purported suspension of claimant without pay vide the letter of suspension dated 14/09/2017 is irregular, inappropriate, unlawful, unfair, unjust, malafide and unconstitutional being in contravention of the claimant’s condition of service, 1st defendant constituting statute, and the 1999 Constitution thereby rendering same null and void and of no effect whatsoever.

 

  1. A declaration that the purported ratification of the letter of suspension dated 14th September, 2017 by the 1st defendant on the 22nd September, 2017 is null and void and of no effect.

 

  1. A Declaration that the cumulative conduct of the defendants to wit; (irregular suspension without pay, declaration of claimant seat/position as magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017, diminution of claimant’s right retrospectively, constitute monumental fundamental breach of claimant’s contract of employment and condition of service with the 1st defendant and thereby amount to a constructive dismissal termination).

 

  1.  A Declaration that the cumulative conduct of the defendants to wit; (irregular suspension without pay, declaration of claimant seat/position as magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017, diminution of claimant’s right retrospectively, constitute a constructive dismissal/ termination).

 

  1. A Declaration that the cumulative conduct of the defendants to wit; (irregular/unlawful suspension without pay, declaration of claimant seat/position as magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017, diminution of claimant’s right retrospectively, constitute an unfair labour practice).

 

  1. A Declaration that the constructive dismissal of the claimant is invalid, malafide illegal and unconstitutional and therefore null and void.

 

  1. An Order setting aside the letters of suspension and the subsequent letter of reinstatement back to Registrar Cadre dated 14/9/2017 and 8/11/2017 respectively for being in contravention of the claimant’s condition of service, 1st defendant constituting statute, and the 1999 Constitution thereby rendering same null and void and of no effect whatsoever.

 

  1. The sum of N2,000,000.00 (Two million Naira Only) as aggravated damages and or exemplary damages for career stagnation and regression, financial misfortune, emotional trauma, disorder, shame and ridicule caused by the defendants to the claimant since September, 2017 on the footing of the unfair labour practice in the form of malicious/unlawful suspension without pay, demotion, reduction in salary, rank, cadre and withholding of salaries and emoluments as Senior Magistrate I grade level 14, diminution of right retrospectively which claimant was subjected to by the defendants.

 

  1. A declaration that the defendants conduct are against international best practice (International Labour Organization Convention on termination of employee No 154 of 1982) and the extant rules regulating claimant’s condition of service with the defendants.

 

  1. An order compelling defendants to reinstate and or restore the claimant to his post as Magistrate forthwith without any loss in rank, seniority, salary increment, promotion and with all his rights, entitlement and other prerequisites of his office.

 

  1. An Order compelling the defendants to pay to the claimant all the salaries including monthly imprest, outfit allowance and entitlements as magistrate forthwith without any loss in rank seniority, salary increment and promotion from September, 14th 2017 till date of reinstatement and henceforth all of which the defendants have deprived the claimant by virtue of the constructive dismissal.

 

  1. An Order directing the defendants to pay to the claimant all his salaries including monthly imprest, outfit allowance and entitlements as magistrate forthwith without any loss in rank seniority, salary increment and promotion from September, 14th 2017 till date of reinstatement as Magistrate within 30 days of the judgment, failing which it shall attract an interest of 21% per annum until it is liquidated.

 

  1. An Order for Cost of the action.

 

During trial, the claimant testified for himself as CW. He adopted his written statement on oath on the 8/2/18 and an additional deposition on the 2/5/18 as his evidence in the case. He tendered documents which were admitted in evidence as Exhibits RO –RO17 and was cross examined. The defendants testified through one Daomi William Adebisi. Secretary to the Secretary of the 1st defendant as DW. He adopted his sworn depositions on oath of the 20/6/18 and additional deposition on the 18/6/19 as his evidence in the case. He tendered documents which were admitted in evidence as Exhibits D-D2.

 

It is the claimant’s case that on the 25th of January, 2011 he was offered an appointment vide the letter dated 27th January, 2011 into a pensionable establishment as Principal Registrar II grade level 12 by the 1st defendant. He pleaded that his appointment was confirmed vide a letter dated 22nd July, 2013 and was promoted after a successful interview to the Principal Registrar II Grade level 13 by a letter dated 10th April, 2014. He continued that on the 23rd of April, 2014 the 1st defendant converted his appointment to that of Senior Magistrate II with a gross pay N154,178.60k. That he was promoted to the position of Senior Magistrate I grade level 14 by a letter dated 18th January, 2017. He went on that he is entitled to the sum of N135, 281.04 as his outfit allowance for 2017. He stated that the defendants owe him salaries and monthly imprest for October, November, December 2016, January 2017 and outfit allowance for 2017 as senior Magistrate Grade II. He pleaded that by a letter dated 14th of September, 2017 the 1st defendant suspended him without pay, took his name off from its list of serving Magistrates and proceeded to advertise his position to the public.

 

It is his further statement that he was informed via a letter dated 8th of November, 2017 of his reinstatement to the position of Senior Registrar level 10 step1cadre and which to him constituted a demotion in rank. He averred that he was not availed the opportunity of making representation in regards to his appointment. Claimant also stated that by a letter dated 28th of November, 2017 he through his counsel rejected and objected to his reinstatement back to registrar cadre and that the 1st defendant have refused to pay his salary for the month of September, October, November, December 2017 as Senior Magistrate I and his monthly imprest and outfit allowance for October 2016, until January, 2017 and September 2017 to the time of filing this suit. He equally pleaded that the 1st defendant sought to pay him salaries right from September, 2017 to December, 2017 as a Senior Registrar II grade level 10 as against his Senior Magistrate grade 1 position and as a result of these unlawful unconstitutional, unfair labour practice and oppressive treatment against him by the 1st defendant, he wrote an involuntary Resignation of appointment on the 25th of January, 2018 from the establishment of the 1st defendant.

 

The defendants on the 3rd of April, 2018 filed their statement of defence jointly. By a consequential amended statement of defence by the defendants dated 18th of June, 2019 they averred that all decision affecting any members of staff in the employment of Ondo State Judicial Service are taken and implemented at the plenary session of the 1st defendant as one collective unit and not by an individual. They pleaded that conversion or transfer from one cadre to another is neither automatic nor continuum. That in the case of transfer from one cadre to another within the Ondo state judiciary; applications for transfer must be made to the 1st defendant in accordance with advertised position supported by the following documents;

  1. Evidence of qualifications;
  2. Satisfactory Annual Performance Evaluation report for two years immediately preceding the date of the application;
  3. The Applicants record of service showing clearly the career progression of the applicant; and
  4. Recommendation that the applicant should be released if the application is successful.

 

That in order to sanitise the 1st defendant in the area of irregular appointment of Magistrate and some senior staff in the 1st defendant between 2010-2016, some staff including the claimant were suspended on the 14th of September, 2017 and ratified at her plenary 22nd of September, 2017 to allow the 1st defendant review and correct such irregularities. That in the course of the review, it was discovered that the appointment of the claimant was not done in accordance with the procedure statutorily as the 1st defendant did not advertise on any medium that there was vacancy and it did not receive any application from the claimant to be considered at the plenary session for the transfer from Registrar cadre to Magistracy cadre and also that the letter date 24th of April, 2014 was issued without directive and the knowledge of the 1st defendant. Defendants continued that all promotions and financial benefits the claimant got in the purported position as a magistrate are illegal, irregular and void. That he has been paid the stated salaries, imprest and outfit allowances as a Registrar save for January, 2017 which was due to the economic meltdown in Ondo state between 2015 to 2017. That he is not entitled to the salaries, allowances and benefits of a magistrate. It is the further statement of defendants that the claimant was reverted to his Registrar cadre on the 8th of November, 2017 and that he was not demoted rather his appointment was regularized. defendants pleaded that though the claimant had resigned from the employment of the 1st defendant, all salaries, allowances and other entitlements unlawfully received by him between April, 2014 to September, 2017 when he was irregularly converted to a Magistrate is recoverable from him.

 

By way of counterclaim, defendant/counterclaimant pleaded that all salaries, allowances and other entitlements already paid to the claimant by the 1st counter claimant in excess of salaries due to his as a registrar is recoverable and to be refunded from him.

 

AND WHEREFORE claims as follows;

  1. A Declaration that the reinstatement of the claimant to the Registrar cadre is not a demotion but is an administrative means by defendants/counterclaimant to regularise his appointment to be in line with his letter of Appointment dated 22nd June 2013 at Principal Registrar II in the Judicial Service of Ondo State.
  2. A Declaration that the reinstatement of the claimant’s appointment back to Registrar Cadre conforms with the condition of the transfer of service of the claimant to the Judiciary Service of Ondo State and it is not in violation of the claimant’s right to fair hearing or any right of the claimant whatsoever.
  3. A  Declaration that the reinstatement of the claimant as a Registrar is not a fresh appointment as there was no evidence that the claimant followed due process of transfer from the Registrar cadre to the Magistracy Cadre in the Judiciary Service of Ondo State.
  4. A Declaration that all payments of salaries allowance and other entitlements unlawfully received by the claimant between April, 2014 to September, 2017 when he was irregularly appointed as a Magistrate is unlawful and recoverable from the claimant as his appointment and right to these facilities were not procured by the process of law.
  5. AN ORDER directing/mandating the claimant to refund and pay the Defendants Counter-claimant, all the salaries, allowances and entitlements unlawfully received by the claimant between April, 2014 and September, 2017 when he was irregularly converted to the Magistracy as his rights to these facilities was not procured by due process of law.
  6. AN ORDER directing the claimant to pay 21% interest on all salaries, allowances and other entitlement unlawfully received by the claimant between April, 2014 to September, 2017 until when judgment is delivered and 15% interest until judgment is complied with, which were unlawfully received by the claimant when he was unlawfully converted to the position of a Magistrate between April, 2014 to September, 2017 as his right to these facilities was not procured by due process of law.
  7. AN ORDER directing the claimant to pay 21% interest on all salaries, allowances and other entitlement unlawfully received by the claimant between April, 2014 to September, 2017 until when judgment is delivered and 15% interest until judgment is complied with, which were unlawfully received by the claimant when he was unlawfully converted to the position of a Magistrate between April, 2014 to September, 2017 as his right to these facilities was not procured by due process of law.

 

 

In adherence to the rules of this Court, the Defendants filed their final written address dated 31/07/2019 wherein counsel on its behalf formulated two issues for Court’s determination thus:

 

  1. Whether considering the totality of the evidence placed before this Honourable Court, the claimant has not proved her claim?
  2. Whether the defendants have successfully proved their counterclaim against the claimant?

 

On issue one it is learned counsel’s argument that by the pleading and evidence placed before this Court, the claimant has failed to establish his claim to entitle him to a favourable judgment. He relied on Sections 131 – 136 of the Evidence Act, 2011 and the case of C.D.C(Nig) ltd v SCOA (Nig) ltd [2007] 6 NWLR (Pt 1030) 300. Learned counsel submitted that the claimant’s employment is regulated by the 1999 Constitution as amended, Ondo State Judicial Service Commission Law and Regulation cap 70, vol 2, Laws of Ondo State, 2006 and Ondo State Civil Service Rules and Regulation and the laws provide for the procedure for conversion/ transfer from one cadre to another that is such vacancy be advertised. It is counsel’s submission that the claimant got converted to the post of Magistrate when the 1st defendant never advertised for vacancy for Magistrate. He never appeared at any plenary of the 1st defendant to be considered for the position of a Magistrate but that according to the claimant vide his pleadings he was converted to the position of a senior Magistrate in continuum of his first appointment. This assertion of the claimant counsel submitted is strange and unknown to the law governing the claimant’s appointment as the appropriate procedure for conversion is stated in Section 16 of the Ondo State Judicial Service Commission Law and Regulations supra. Counsel also submitted that the claimant under cross examination testified that he was not issued with any letter of release from the registrar cadre before crossing to the Magistracy cadre as provided for by Section 16 of the Ondo State Judicial Service Commission Law and Regulations supra. That is settled law that where a law provides a procedure for doing a thing or an act, such a procedure must be followed. He cited the case of Buhari v Yusuf [2003] 4 NWLR (Pt 841) 446 @ 492. Counsel equally contested that exhibit RO4 relied upon by the claimant did not emanate from the 1st defendant and the said secretary one Ademola Enikuomehin as Secretary to the 1st defendant is not and had never been a member of the 1st defendant and can only where authorized carry out directive of the 1st defendant vide Section 9 (3) of the Ondo State Judicial Service Commission Law of Ondo State. He urged the Court to so hold.

 

With regards to claimant’s pleadings on his suspension, learned defence counsel submitted that the 1st defendant is statutorily empowered to suspend the claimant and had reasonable ground to do so which is to carry out proper investigation regarding his irregular conversion into Magistracy. He cited in support the cases of Shell Petroleum Development Company Ltd v Lawson Jack [1998] 4 NWLR (Pt 545) 249 at 270; Udemah v Nigeria Coal Corporation [1991] 3 NWLR (Pt 180) 479 at 486. Learned counsel stated also that the claimant cannot argue that the rules of natural justice were breached on the ground of his suspension and further that he was not entitled to any pay as salary or other prerequisite of the office of a Magistrate during the period of his suspension. He relied on Regulation 49 (2) of the Ondo State Civil Service Commission Regulations.  

 

It is counsel’s contention that the claimant in this suit has no cause of action having resigned his appointment by a letter dated 25th January, 2018. He urged the Court to so hold. On the issue of estoppel and waiver raised in the claimant reply and defence to counterclaim, counsel submitted that this principle cannot be founded on this case as the defendants upon some perceived irregularities suspended the claimant and upon discovery that he was irregularly appointed a magistrate reinstated him to his erstwhile position as a Registrar. It is the further position of the defence counsel that the 1st defendant cannot be estopped from taking steps to regularise the claimant’s employment. She equally submitted that evidence has been established that the procedure for the appointment of the claimant’s conversion as a magistrate is irregular and therefore invalid. That appointment of Magistrate is a public function derived from statute and the statutory procedure for such appointment cannot be waived as it is not in respect of private rights of the defendants but of a public right intended for public affairs and administration. He urged the Court to so hold.

 

On issue two, learned counsel contended that the claimant is not entitled to the salaries, allowance, impress and other emolument attached to the office as Senior Magistrate Grade II having being converted as such without due process of law. Counsel also posited that the payment of monthly salaries and allowances to the claimant as Senior Magistrate Grade Level II by virtue of Ex RO4 is illegal, unlawful and recoverable from the claimant as his appointment/conversion and right to these facilities were not procured by the due process of the law. She urged the Court to so hold.

 

The claimant in this suit failed to respond to the defendants’ written submission despite the hearing notices served on him in care of his counsel after the defendants served on him their written submission on the 9/8/19. The Court pursuant to the provision of Order 38 Rule 16 (3)(d) National Industrial Court Rules, 2017, foreclosed his right to file his written address. It is germane for me to state that all parties have the right to file their final written address which is part and parcel of the trial. However, where a party fails or refuse to take advantage of the opportunity and conducive environment created for him to do so, he cannot blame the Court for his ineptitude. It is noteworthy that the right to fair hearing does not however exist in absolute terms. The doctrine of fair hearing requires the Court to create a conducive environment and atmosphere for a party to enjoy his right to be heard, but it does not mandate the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. Alternatively put, it is not the business of the Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or effectively utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – See the cases of Independent National Electoral Commission v. Musa [2003] 3 NWLR (Pt. 806) 72, Dantata v Mohammed [2012] 8 NWLR (Pt. 1302) 366, National Films & Video Censors Board v Adegboyega [2012] 10 NWLR (Pt. 1307) 45. The defendants closed their case on the 20th June, 2019 and by consent of both learned counsel present in Court the case was adjourned to the 14th October, 2019 for adoption of final written addresses. The defendant who is to file first did file on the 31st of July, 2019 and same was served on the claimant by the record of this Court on the 9th of August, 2019, the claimant was to have filed 21 days of the receipt of the defendants, i.e. the 30th of August, 2019 or at most the 2nd of October, 2019. The claimant failed to file his final written address. The case was further adjourned to the 23rd of October, 2019 for adoption of final written address. Hearing notice to that effect was issued and served on the claimant’s counsel, yet neither the claimant nor his counsel was in Court and there was no reasonable cause shown for their absence in Court. The defence counsel informed the Court of a letter the claimant’s counsel wrote to her seeking for an adjournment, the said letter was not before the Court as at that time. Defence then requested for an adjournment to the second date which was the 24th October, 2019 to enable the claimant appear and adopt his final address.  On the 24th October, the Court Registrar Sola Joseph informed the Court that the claimant’s counsel called him to confirm that he received the message informing him of the date, but he could not attend the proceeding because he was not around, he has travelled to Abuja. It is on record that as at that date the claimant has not filed his final address, it is equally of note that Olaborode of counsel is not the only counsel who is handling the claimant’s case other lawyers from the same chambers had appeared for the claimant in this case and none of them was in Court on this date. It then became obvious that the claimant is not interested in taking the advantage given him to address the Court. It is consequent upon an application made by the defence for the foreclosure of the claimant’s right to filing an address that this Court invoked the provisions of Order 38, Rule 16 (3)(d) and foreclosed the claimant and allowed the defendant to adopt their final address. Hence, the case was adjourned for judgment and the Court ordered for service of hearing notice on the claimant. I therefore, find from the facts and circumstances of this case that the claimant was given ample time, conducive environment and opportunity to file his final address but failed to take advantage of same, this Court cannot thus be blame for his failure to so act. The Court will consider the merit of this case judicis est judicare secundum allegata et probate, in other words, my duty as a judex is to decide this case according to facts alleged and proved as in the pleadings, oral evidence and documentary evidence placed before the Court by the claimant. I so hold.

 

I have gone through the claimant’s claims and the accompanying documents; the defendants’ statement of defence and accompanying documents, oral evidence of witnesses before this Court as well as watched their conduct and behaviour, and the case law authorities relied upon in support of parties argument before the Court. It is my humble view that the issues that explicitly determine the suit are;

 

  1. Whether or not the claimant’s suspension is unlawful.
  2. Whether or not he has proven his claims to entitled to same.
  3. Whether or not the defendants/counterclaimants are entitled to their reliefs.

 

The nature of claimant’s employment is not in contention in this case. This is so in the light of claimant’s paragraph 10 of his amended statement of fact and testimony under cross-examination, where he stated that his employment is governed by the Judicial Service Commission Law Cap. 70 Vol. 2, The Laws of Ondo State of Nigeria, 2006; The Judicial Service Commission Regulations Cap 70 Vol. 2, The Laws of Ondo State of Nigeria, 2006; Civil Service Commission Law Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006 and Civil Service Commission Regulation Cap.31, Vol 1, The Magistrate Court Law of Ondo state, cap 90 vol 3 laws of Ondo State of Nigeria, 2006 and the Constitution of the Federal Republic of Nigeria 1999 as amended. The defendants are in complete agreement with the above position of the claimant. It is however, the claimant’s claim that the defendants letter dated 14th of September, 2017, suspending him from the 1st defendant establishment without pay and the purported ratification of the letter of suspension is unconstitutional, null and void and of no effect.

 

Suspension of an employee 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-1793, SC; university of Calabar Teaching Hospital & Anor v. Bassey [2008] LPELR-8553CA.  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; Adekunle v UBA Plc [2016] LPELR 41124 CA. 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. The Court of appeal in the case of Udemah v. Nig. Coal Corp. [1991] 3 NWLR (Pt. 180) 477 CA; held that an employer has the right to suspend an employee for the purpose of investigation/enquiry or disciplinary action. The case went on that in doing that, the employer must comply with any existing regulation governing such action. See the cases of National Judicial Council &Ors v Hon Justice Jubril Babajide Aledejana & Ors supra; INEC v Chukwuka C. Okoronkwo [2009] LPELR 4321 CA. The law is of common that suspension of an employee when necessary cannot amount to breach of employee’s fundamental or common law rights. Differently put, the right of suspension cannot breach a person’s fundamental right as it has no nexus with issue of fundamental right under the Constitution. See the cases of Akinyanju v University of Ilorin [2005] 7 NWLR (Pt. 923) 87; Longe v First Bank Nig. Plc supra; ACB v. Ufondu [1997] 10 NWLR (PT. 523) 169 CA.

 

The lawful effect of suspension is deducible from the terms of employment in that suspension must be in accordance with the provision of the condition governing the employment of the claimant and defendants. From the Ondo State Judicial Service Commission Law and Regulations supra particularly at Regulation 4 (d) it discloses that the 1st defendant has powers to discipline its employees. The law vests the 1st defendant with powers 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.” Items 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.” (Highlight is mine for emphasis). The defendants as rightly stated in their pleadings and written submission posited that the 1st defendant suspended the claimant on the 14th of September, 2017 on the grounds of. “Due to perceived irregularities and lack of due process in your appointment as a Magistrate in the Ondo State Judiciary, within the Judicial Service of the State, the Honourable Acting Chief Judge/Chairman of Judicial Service Commission has directed your immediate suspension from the Judicial Service pending Plenary consideration and review of the propriety of your appointment process…” to enable it look into the circumstance surrounding the purported appointment of the claimant as a Magistrate and not on the ground of misconduct. Now does the 1st defendant has the right to suspend the claimant? My answer is in the affirmative, as they are constitutionally empowered to so do by Items 5 & 6 of Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) supra. It is thus obvious from the Constitutional provision as well as laws regulating claimant’s employment that the 1st defendant is vested with the right to suspend the claimant when necessary and this as stated supra cannot amount to a breach of the claimant’s fundamental right under the Constitution. See the case of Ayewa v Unijos [2000] 6NWLR (Pt. 659) 142. The claimant also claims that his suspension was without pay and as such unconstitutional being in contravention of his condition of service, and urged the Court to declare it null and void and of no effect whatsoever. The defendants by paragraphs 30 and 31 of their amended statement of defence averred that claimant’s salary and other emoluments was not deliberately withheld during the period of suspension but that there was recession in Ondo State and that he has been paid all his outstanding salaries and emolument except that of January, 2017. DW equally corroborated same when he stated that the claimant is entitled to his salary on suspension. It is the law that he who assert must prove. See Section 131 of the Evidence Act, 2011. The claimant in prove of his claim tendered Exhibit RO12, i.e. his statement of account. A scan through the exhibit disclosed that he was only paid his salary for the month of October, 2017 on the 19/12/17. However, by paragraph 2(O) of his reply to the defendants’ amended statement of defence he stated that “…the payment of the salaries of a senior registrar on grade level 10 step 1 retrospectively from September, 2017 was purportedly paid into claimant’s salary account in January, 2018 after claimant’s have rejected the actions of the 1st defendant, when this suit was in contemplation and the 1st defendant was owing claimant arrears of over four months salaries from 2016.” The defendants by paragraph 4.43 have argued that the claimant while on suspension is not entitled to any pay as salary placing reliance on Regulation 49 (2) of the Ondo State Civil Service Commission Regulations. A careful study of this provision pertains to where an employee has been subjected to a criminal proceedings in Court which differs from this I nstance suit. The claimant has admitted vide the above cited paragraph that he was paid his salaries albeit on the Registrar Cadre. The law is settled beyond any argument that admitted facts require no further proof. See the case of Komolafe v FRN [2018] LPELR 44496 SC. It is in this light that I find that claimant’s suspension was not unlawful. Accordingly, claimant’s reliefs a, b, c, and d, in respect of suspension fail. I so find and hold.

 

With regards to issue two, the claimant also claims that the cumulative conduct of the defendants to wit; (irregular suspension without pay, declaration of claimant seat/position as Magistrate vacant and advertisement of same to the public,  withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017, diminution of claimant’s right retrospectively, constitute monumental fundamental breach of his contract of employment and condition of service with the 1st defendant and thereby amount to a constructive dismissal termination, constitute an unfair labour practice and invalid, malafide illegal, unconstitutional and therefore null and void. The defendants in response contended that the purported appointment of the claimant as Senior Magistrate II vide a Letter of Conversion dated 23rd April, 2014 signed by one Ademola Enikuomehin Esq without recourse to due process of Law is invalid as the 1st defendant is the only body responsible for the appointment, dismissal and exercise of disciplinary control over the senior staff of the Commission. The golden rule in civil proceedings is that he who asserts must prove, it is a fundamental fact in our of evidence that the arduous task of proving the claimant’s case is on the claimant to substantiate his claims to the satisfaction of the Court to enable the Court find that fact for him. See the case of Akpadiaha v Uko [2017] LPELR 42635 CA. To prove his claim the claimant tendered before the Court his letter of conversion from Principal Registrar II GL 13 to Senior Magistrate II GL13 Exhibit RO4. The content of which is hereunder captured thus-

 

Please be informed that the Judicial Service Commission has approved your Conversion from Principal Registrar II GL 13 to Senior Magistrate II GL13 with effect from January 1 2014 but with financial benefits from April 23, 2014”.

 

The standpoint of the claimant by his testimony under cross-examination is that his conversion to a Senior Magistrate II GL13 was valid having been made sequel to an advertisement, interview and the letter of conversion emanating from the 1st defendant and same issued and signed by the then Secretary of the 1st defendant and that he was promoted by the 1st defendant on the 18th of January, 2017 exhibit RO3 to the post of Senior Magistrate I GL 14. He further stated vide his reply to the defendants’ amended statement of defence that the 1st defendant is estopped and have waived any right of complaints as regards the letter of conversion and promotion dated 23rd April, 2014 and February, 10th 2016. The defendants on this argued that there was nothing as an advertisement, interview and a letter of release from his former Registrar Cadre to the Magistracy cadre on his purported conversion contrary to Sections 16(a-f) and 21(a-b) [Sic] of the Ondo State Judicial Service Commission Law and Regulations supra and the letter issued to him by the Secretary of the 1st defendant was ultra vires his powers as provided for Ondo State Judicial Service Commission Law and Regulations supra. By the provisions Sections 16(a- c) and 21 (1&2) it provides that;

 

As soon as it is known that a vacancy will occur or has occurred in the relevant office, the Chief Registrar shall on the direction of the Chief Judge communicate to the Commission in writing proposal regarding the filing of the vacancy. Such proposals shall indicate the methods to be employed in filling the vacancy and whether or not the vacancy should be advertised and if so, the recommended means for the various government of the federation of Nigeria. Where necessary the Chief Registrar shall submit with proposals. A draft advertisement where it is proposed that the vacancy should be filled by promotion within the judiciary or by transfer or secondment within judiciary, the recommendation to the effect in accordance with these regulations in respect of a named person may be included in the proposal or made separately;

  1. The Commission shall decide whether or not a vacancy shall be advertised, and if the Commission decides that the vacancy should be advertised, it shall arrange for the publication of the advertisement;
  2. where a vacancy is advertised, the Commission may direct that a shortlist be prepared and submitted to the Commission for consideration.

21 (1) An officer applying for transfer or secondment shall address his application to the Chief Registrar and shall state in his application, his reasons for wanting the transfer or secondment and his qualifications for the office to which he wishes to transfer or be seconded.

(2) Where the transfer or secondment is within the judiciary, the Chief Registrar shall make such recommendation as he thinks fit to the commission in accordance with these regulations.”

 

It is pertinent to state that the above provision is as regards transfer and secondment. The issue of advertisement is discretionary, if it is within the judiciary, it need not be by means of advertisement. All that is required at that instance is for the Chief Registrar to make recommendation to the 1st defendant for the transfer or secondment. Conversion I need to point out was not specifically mentioned in the above captured law. Assuming that transfer constitute conversion, the recommendation of the Chief Registrar to the 1st defendant suffices and the approval would be carried out by the Secretary to the 1st defendant. A germane or differently put a vexed recurring question to answer is on whose authority was Exhibit RO4 issued? To the claimant no doubt the 1st defendant as seen vide exhibit RO4 did the claimant’s conversion and not the claimant by himself. That wouldn’t have been possible. While the defendants by paragraphs 15-19 of their amended statement of defence pleaded that the claimant’s appointment to the Position of a Senior Magistrate was done by one Ademola Enikuomehin Esq without the knowledge, consent and authority of the 1st defendant. An indepth examination of  the records before the Court evinces that Exhibit RO4, was signed by one Ademola Enikuomehin Esq and subsequently exhibit RO3 promotion letter to the post Senior Magistrate I GL 14 signed by Chief Z.D Egbunu. The said exhibit RO3 reads thus;

 

“Promotion

Please be informed that the Judicial Service Commission at its plenary Session held on January 17 2017 has approved your promotion to the post of Senior Magistrate Grade 1 GL 14 with effect from January, 1 2017.”

 

A follow up question is have the defendants proven on a balance of probability that the conversion and appointment of the claimant was done irregularly and ultra vires the powers of Ademola Enikuomehin Esq and Chief Z.D Egbunu who were the 1st Defendant’s Secretary at the material time claimant’s employment was converted and promoted? In answering this question I must say that the defendants in proving their case failed to call as witnesses the said Ademola Enikuomehin Esq and Chief Z.D Egbunu to validate their claims. Now, exhibit RO4 says “Please be informed that the Judicial Service Commission has approved your Conversion from Principal Registrar II GL 13 to Senior Magistrate II GL13…”

DW on record who is also the present Secretary of the 1st defendant admitted on record that the functions and duties of the Secretary of the 1st defendant are as stated by JSC Regulations. By Regulations 4 and 5 of the functions it includes functions that may be assigned to him by the 1st defendant and carrying out other functions assigned to the 1st defendant by the 1999 Constitution or under the Regulations. The general rule is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal. See GTB v. Yunana Solomon [2016] LPELR-40342CA; and Ihesiaba & ors v Ochepa [2015] LPELR 24822 CA. The key words here is the “agent must act within the scope of his authority” [Underline is mine]. It is therefore, undoubtedly that by issuance of exhibits RO4 and RO3 and the signing of same by the erst while Secretaries of the 1st defendant, they acted within their scope of statutory functions. The defendants have neither controverted this position of the law in any way nor tendered any document to the contrary of the said Ademola Enikuomehin Esq and Chief Z.D Egbunu function under the law. It is the law that pleadings must be supported by evidence failing which such averment will be deemed abandoned. This is on the basis that pleadings simpliciter do not constitute evidence. See the cases of Adamu v Alele [2018] LPELR 45374 CA; Magnus & anor v Okpoto & ors [2018] LPELR 45618 CA. It is in the light of all stated that I find that the defendants have failed to substantiate their contention that claimant’s conversion/appointment as a Senior Magistrate 11 was obtained irregularly and to that extent claimants claims with respect to declaration of claimant seat/position as magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017 is unlawful null and void. It is thus set aside. I so hold.

 

Claimant also claims that his constructive dismissal is invalid, malafide illegal and unconstitutional and therefore null and void. Constructive Dismissal connotes the change in an employee’s job or working condition by an employer with the aim of forcing a resignation. It is imperative to give an academic background to what the principle of constructive dismissal connotes, Learned authors, Simon Deakin and Gillian S. Morris in the Seminal book, Labour law, 5th Edition at page 409 explained the term as a “dismissal that occurs where the employee terminates the contract either with or without notice”. This principle is also referred to as forced resignation in the Recent Development in Nigerian Labour Law, Hybrid Consult 2017, authored by Bimbo Atilola at pages 53-54 as a specie of termination of employment relationship where an employee terminates the contract of the employment with or without notice usually induced by the conduct of the employer, see the locus classicus decision of Lord Denning (The Master of the Rolls) in the case of Western Excavations v. Collins John Sharp [1977] ECWA Civ 165.

Also, in the words of the Hon. the President of this Court, Hon. Justice B.B Kanyip, Ph.D, FNIALS in the case of Joseph Okafor v. Nigerian Aviation Handling Company, NICN/LA/291/ 2016 delivered on the 25th of April 2018, succinctly captured the concept thus:

This Court has now acknowledged and applied the concept of constructive dismissal in the corpus of labour jurisprudence in Nigeria. Accordingly, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (pt. 154) 51 NIC and Mr. Partick Obiora Modilum v. United Bank of Africa Plc unreported suit no. NICN/ LA/353/2012 the judgment of which was delivered on the 19th June 2014, for instance held that to attempt to have the employee resign, (underline mine for emphasis) rather than outright firing the employee means that the employer is trying to create a constructive discharge. In constructive dismissal, the exact legal consequences differ from country to country, but generally it leads to the employee’s obligation ending and the employee acquiring the right to seek legal compensation against the employer…”

The English Court in Western Excavations v. Collins John Sharp supra have thus set out four classic elements of constructive dismissal which are now regarded as formulations of constructive dismissal tests:

  1. There must be a breach of contract by the employer; this can be an actual or an anticipatory breach
  2. The breach must be sufficiently serious, namely, a repudiatory or a fundamental breach, or the last of a series of breaches which taken together form sufficiently serious conduct by the employer( known as the “ last straw” concept, See the case of Lewis v. Motor World Garage Ltd [1985] IRLR 465 CA

iii.               The employee must leave as a result of the breach

  1. There must be no waiver of the breach, for example through the employee’s delay of leave.

In the case of Dryden v. Greater Glasgow Health Board [1992] IRLR 496, EAT, the Court held that it is the primary duty of the claimant who alleges constructive dismissal as in this instance, to show that his dismissal was an immediate breach of the Contract of employment by the 1st defendant entitling him to repudiate the employment contract, that is for the claimant to be successful in this action, he has to establish a breach of his contract of employment as a result of which he left the employment. See also Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd[1] [2014] 47 NLLR (Pt. 154) 531 NIC. and Mr. Patrick Obiora Modilim v. United Bank for Africa Plc. Unreported Suit No. NICN/LA/353/2012 the judgment of which was delivered on 19th June 2014.  Next, was there an actual breach in the contract of employment of the claimant or was there an anticipatory breach thereof. It is also on record as seen vide the processes and documents tendered in support of same that the claimant was by Exhibit RO8 dated 8th of November, 2017 reinstated back to his Registrar Cadre, the cadre he was before his conversion and subsequent promotion to Senior Magistrate I by the 1st defendant. It is also on record that the claimant on the 25th of January, 2018, i.e. Exhibit R11 by a Letter of Involuntary Resignation ‘involuntarily resigned his appointment’.[Highlight is mine for emphasis]. I have held earlier that declaration of claimant seat/position as Magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017 is unlawful null and void and hence culminated into his forced resignation. It is in view of the facts and circumstances leading to involuntary resignation of the claimant from the 1st defendant’s employ as espoused supra that I find that the claimant was constructively dismissed by the 1st defendant. It is in consequence that I hold that the reversion of claimant to the Registrar cadre is unlawful as it is against the extant rules regulating claimant’s condition of service and an unfair labour practice. Accordingly, claimant’s letter of involuntary resignation dated 25th of January, 2018 is set aside as well as the letter reversing his position from Senior Magistrate to Registrar cadre.

The claimant also claims reinstatement to his post as Magistrate forthwith without any loss in rank, seniority, salary increment including monthly imprest, outfit allowance and entitlements as magistrate, promotion and with all his rights, entitlement and other prerequisites of his office from September, 14th 2017 till date of reinstatement. It is trite that when the termination of an employment with statutory flavour has been declared unlawful, the effect is as if the employee never left the said employment and as such the employee is expected to be placed back into his position that is to status quo ante bellum. See the cases of Bassey v. Akwa Ibom & Ors [2016] LPELR-41244, C.B.N v. Igwillo [2007] ALL FWLR (Pt. 379) 1385 at 1401;X Paras. E – F  Effiong v. Ebong [2006] 18 NWLR (Pt. 1010) 109 CA. Parties are ad idem that the claimant has been paid his salaries and allowances albeit on the Registrar Cadre save for January 2018 salary. It is in the light of this, that I find that the Claimant is entitled to be reinstated back to his position as a Senior Magistrate Grade 1 without any loss in rank, seniority, salary increment including monthly imprest, outfit allowance and entitlements as Magistrate, promotion and with all his rights, entitlement and other perquisites of his office less the already paid salaries and allowances on the Registrar cadre from September, 14th 2017 till date of reinstatement. I so find and hold.

 

Claimant claims the sum of N2,000,000.00 (Two million Naira Only) as aggravated damages and or exemplary damages for career stagnation and regression, financial misfortune, emotional trauma, disorder, shame and ridicule caused by the defendants to the claimant since September, 2017 on the footing of the unfair labour practice in the form of malicious/unlawful suspension without pay, demotion, reduction in salary, rank, cadre and withholding of salaries and emoluments as Senior Magistrate I grade level 14, diminution of right retrospectively which he was subjected to by the defendants. It is trite that when a person whose employment is unlawfully terminated is reinstated, he/she cannot get both re-instatement and damages at one and the same time, it must be one of the other he stands to enjoy see Kabelmetal Nig. Ltd v. Ativie [2002] 10 NWLR (Pt. 775) 250 CA. However, that position of the law is no longer trite, this is in view of the recent decision of the Court of Appeal in Promasidor (Nig.) Ltd & anor v. Asikhia[2019] LPELR-46443(CA). The Court of Appeal per His Lordship Ogakwu, JCA made the distinction between the two heads and answered the question in the affirmative thus allowing the award of damages for malicious falsehood in addition to that for the wrong arising from the termination of employment. By this act, a total distinction between damages for wrongful/unlawful termination where no notice is given or statutory employment, and damages for an alleged malpractice such as injurious falsehood has now been made. Accordingly, following Promasidor, this Court in Emana Ibor Edet v. Fidelity Bank Plc, unreported suit No. NICN/LA/276/2014 , a judgment delivered on 17th Decemeber, 2019, It awarded general damages of N6,756,750.00 for the unauthorized debiting of the claimant’s account and the deprivation of access of his account as well, he was also awarded the sum of N281,531.25 being salary in lieu of notice. In Mrs Diayi Gladys v. Benin Electricity Distribution Company, Unreported suit No. NICN/AK/22/2018, a judgment I delivered on 17th September, 2019, I held amongst other things that –

The claimant by law is entitled to have her employment terminated in accordance with the terms of her contract. This right was infringed as held supra. The defendant hid under the wrong impression that the claimant being on probation cannot be asked to go without following the terms of her contract. On one hand the defendant alleged that a petition was written against the claimant that she collected money from a customer for which she was queried, on the other hand the defendant would want the Court to agree with it that they just did not confirm claimant’s appointment. The consequence of this was a disregard for the law and at the same time disregard for the claimant’s legal right. The general position of the law is that where there is a right there is a remedy, which is beautifully presented in the latin maxim, ubi jus, ibi remedium. The law is that a claimant whose right has been infringed upon has in law a right to vindicate that right and entitled to a remedy, as the Court is enjoined to provide a remedy where a legal right is established.”  

 

In that case I awarded to the claimant a month salary in lieu of wrongful termination of her employment and also awarded N250,000 to her as damages for the defendant’s unsubstantiated allegation of bribery against the claimant.

 

Now, the claimant has a right under his contract of employment, which right if breached has its consequences. Applying the above case law authorities to this present, it is evident from the facts and circumstances of this case that the claimant has been wronged by the defendants action, in this case career stagnation and regression, shame of losing the position of a Senior magistrate and ridicule. This I must say cannot be quantifiable in monetary terms, it is in the light of all stated supra and armed by the appeal Court decision in Promasidor’s case supra, that I award exemplary damages of the sum of N1,000,000.00 to the claimant.

 

Respecting issue three, it is the defendants/counterclaim that the reinstatement of the claimant to the Registrar cadre is not a demotion or violation of the claimant’s right to fair hearing or any right of the claimant whatsoever but is an administrative means to regularise his appointment to be in line with his letter of Appointment dated 22nd June 2013 at Principal Registrar II in the Judicial Service of Ondo State and that the reinstatement of the claimant as a Registrar is not a fresh appointment.  Having held that the defendants have failed to prove that claimant’s conversion/appointment as a Senior Magistrate 11 was obtained irregularly and equally held that claimants claims with respect to declaration of his seat/position as Magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017 is unlawful null and void and constitute an unfair labour practice, this claims fail for all intent and purposes. I so find and hold.

 

Defendants/counterclaimants also claims that all payments of salaries allowance and other entitlements unlawfully received by the claimant between April, 2014 to September, 2017 when he was irregularly appointed as a Magistrate is unlawful and recoverable. The law is long settled that a party should not benefit from his own wrong. See the case of Mr. P.T. Adedeji v. Dr. Moses Obajimi [2018] LPELR- 44360SC. This is well represented in a latin maxim, ex turpi causa non oritur action. See also the cases of Oguntuwase v Jegede [2015] LPELR 24826 CA; Hotel & Catering Services Ltd v Uncle T Furniture Co (Nig) & Anor [2018] LPELR 45887 CA; Ibrahim v Osunde & ors [2009] LPELR 1411 SC; Richard Osa Nekpenekpen v. Mr. Iwazor Egbemhonkhaye [2014]LPELR-22335CA. It is my humble view considering the facts and circumstances of this case as well as all the case law authorities cite supra, that to allow the defendants their claims in this regard will amount to allowing them benefit from their wrong hence turning the law over its head and occasion injustice to the claimant. Legally speaking, the defendants claim is in the realm of special damages, which ought to have been specifically pleaded and strictly proved. They have failed to specifically state the amount the claimant has been paid since his purported unlawful conversion for which they would want the Court to grant. It is outside the adjudicatory powers of the Court to do the calculation of the sums the claimant has allegedly collected in salaries, allowances, imprest and so on as a Magistrate. It is in consequence of all stated earlier on this issue that I find that defendants’ counterclaimants claims fail.

 

On the claim for prejudgment interest of 21% on all salaries, allowances and other entitlement unlawfully received by the claimant between April, 2014 to September, 2017 until when judgment is delivered and post-judgment interest of 15% interest until judgment is complied with, which were unlawfully received by the claimant when he was unlawfully converted to the position of a Magistrate between April, 2014 to September, 2017. It goes without saying that the defendants’ counterclaims having failed, the issue of interest becomes otiose.

In conclusion, it is obvious that the claimant’s claims succeed in part and the defendants counter claims fails in entirety. For the avoidance of doubt, I declare and order as follows;

  1. That the suspension of the claimant is not unlawful.
  2. That the declaration of claimant seat/position as Magistrate vacant and advertisement of same to the public, withholding of salaries and emoluments, reduction in rank and salary from Senior Magistrate 1 grade level 14 pursuant to a letter of Reinstatement back to Registrar Cadre dated 8/11/2017 is unlawful null and void and constitute an unfair labour practice
  3. That the constructive dismissal of the claimant is invalid and his involuntary resignation letter dated 25th of January, 2018 is hereby set aside.
  4. That the claimant is entitled to be reinstated back to the position of Senior Magistrate 1 forthwith.
  5. That the claimant is entitled to be paid the difference of his salary as Senior Magistrate as opposed to a Registrar which is 4 months; and salary as Magistrate from February 2018 till date.
  6. That claimant is entitle to exemplary damages in the sum of N1, 000,000.00.
  7. That defendants/counterclaimant claims fail.
  8. The monetary sum awarded is to be paid within 30 days of this judgment.

 

 

No award as to cost

Judgment is entered accordingly

 

 

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge

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