Kenneth Bobby Ugiagbe -VS- Attorney General of Edo State & 5

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO

DATED: 11^TH APRIL, 2019 SUITNO: NICN/BEN/18/2017

BETWEEN

KENNETH BOBBY UGIAGBE …….CLAIMANT

AND

ATTORNEY GENERAL OF EDO STATE
EDO STATE CIVIL SERVICE COMMISSION
THE GOVERNOR OF EDO STATE ….. DEFENDANTS
OLUWOLE IYAMU ESQ
MISS DEBORAH ENAKHIMION
S. O. OKO-OSE, ESQ

REPRESENTATION:

AMBROSE ETSEHNAME APPEARS FOR THE CLAIMANT.

ENAHORO AGHOMON APPEARS FOR THE DEFENDANTS.

JUDGMENT

The Claimant by a Complaint before this Court on the 15^th August, 2017 claims against the Defendants as follows:

A DECLARATION that the indefinite suspension without pay of the Claimant by the 4^th Defendant and subsequent dismissal of Claimant vide letter dated 17^th May, 2017 from Edo State Civil Service by the 4^thDefendant constitutes/constituted an unfair dismissal without any factual basis at all and as a result wrongful, unlawful, unconstitutional, illegal and invalid.

A DECLARATION that the setting up/constitution of the Disciplinary Committee by the 4^thDefendant and the subsequent purported findings of the Disciplinary Committee and its report/recommendations is unlawful, unconstitutional, illegal and invalid.

A DECLARATION that the actions of the 2^nd, 4^th, 5^th and 6^th Defendants herein jointly and severally in procuring the punishment of dismissal of the Claimant from Edo State Civil Service without any factual basis in wanton breach of all principles of natural justice as well as the relevant constitutional guarantees to Claimant of due process and as shown on the facts of this case is malicious, arbitrary and constitutes abuse of office hiding under the colour of law and/or office and as such the 2^nd, 4^th, 5^th and 6^th Defendants are personally liable for such acts of abuse of their respective offices.

A DECLARATION that the actions of the 2^nd, 4^th, 5^th and 6^thDefendants in the circumstances presented in this case constituted a most wanton and unconstitutional application of unfair practices and bias to the direct detriment of the Claimant.

ADECLARATION that the 4^thDefendant lacks the requisite power under the Edo State Civil Service Rules to issue and sign the letter of dismissal dated 17^th day of May, 2017 issued to the Claimant being a senior officer on Grade Level 10.

AN ORDERsetting aside the letter of dismissal dated 17^th day of May, 2017 which was issued to the claimant by the 4^thDefendant purportedly on behalf of the 2^ndDefendant.

AN ORDERsetting aside the purported report, findings and recommendations of the Disciplinary Committee constituted by the 4^th defendant the content of same having not been brought to the attention of the Claimant by the Civil Service Commission (2^ndDefendant herein) before acting on it as required by the Edo State Civil Service Rules.

AN ORDER directing the Edo State Civil Service Commission (2^nd Defendant) to immediately re-instate the Claimant to his statutorily protected employment with the Ministry of Justice in the Edo State Civil Service, in all respects and for all rights and entitlements of the Claimant including his promotions, arrears of salaries (N173,610.32k monthly) and emolument to be made effective from the 26^th day of October, 2016 being the date Claimant’s dismissal was made to take retrospective effect.

AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants jointly and severally from harassing, blackmailing or subjecting the Claimant to any form of disadvantages on account of bringing this claims before this Honourable Court in pursuance of the legal rights as conferred on the Claimant by the harmonized terms and condition of service of officers in Civil Service and the Constitution of the Federal Republic of Nigeria.

AN ORDER OF PAYMENT OF COMPENSATION, AGGRAVATED AND EXEMPLARY DAMAGES in the sum of N400,000,000.00 (Four Hundred Million Naira) jointly and severally against the defendants for their actions of the wrongful dismissal of the Claimant with the resultant injustice against him, his wife, 5 young children and for the financial difficulty Claimant and his family has so far suffered.

OTHER RELIEF(S) in law or equity including but not limited to order for cost of this action on a full indemnity basis and injunctions as the court is authorized to grant in line with the provisions of the Constitution of Nigeria, the provisions of the National Industrial Court Act, and under the stipulations of the National Industrial Court Rules as this Honourable Court deems just and proper in the circumstances.

And for such further Order(s) as this Honourable Court might deem fit to make in the circumstances of this case.

The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon, while the Defendants filed a memorandum of appearance, joint statement of Defence and other accompanying processes. The Defendants also filed an Amended Joint Statement on Oath of Defence on the 13/11/2017.

The Claimant’s case is that he was a staff of the Ministry of Justice in the Citizen’s Right Department under the Edo State Civil Service before his wrongful dismissal.

The claimant averred that sometimes in September, 2016 he heard rumours that a petition had been written against him and hewaited patiently in the hope that he will be notified to no avail. The claimantaverred that rather he received a letter of invitation from the State Security Service (SSS) Edo State Command which he attended and where he was showna petition dated 22^nd September, 2016 written by one Abraham Oviawe Esq. with the original addressed to the 1^st and 4^th Defendants, a covering letter from the 4^th Defendant requesting theSSSto investigate the claimant.The claimant further averred that he was surprised to see on the said petition, the directive of the Hon. Attorney-General which read thus:

“SG/PS, bring the content of this petition to the attention of Mr Ugiagbe and let him respond to the issues raised”.

He stated that despite the above the 4^th Defendant did not bring the issue to his attention but rather decided to forward the petition to the DSS for investigation.

In the petition, the claimant was alleged to have received the sum of One Million Naira (N1,000,000.00)from a relation of some accused persons with the aim of perverting the course of justice.The Claimant averred that after he was released by the DSS he was issued a query upon the directive of the 4^th defendant to which he was to respond within 24 hours, and that notwithstanding the fact that the time given to him had not expired the 4^th defendant went ahead to suspend him indefinitely without pay.

The claimant averred that being a GL 10officer, the 4^thdefendantdo not have the power to suspend him from office indefinitely without payunder the Edo State Civil Service Rules.

According to the claimant, the 4^th defendant later constituted a Disciplinary Committee on the issue with instructions to ensure his dismissal, consequent upon which he was eventually dismissed from the service, claimant stated that his dismissal letter was issued and signed by the 4^th defendant on the 17^th of May, 2017, but was made to have retrospective effect from the 26^th day of October, 2016 the day he was suspended. He also alleged that the 4^th Defendant was biased against him and his right to fair hearing was infringed . Whereupon he instituted this action and claims against the Defendants as above stated.

The defendants filed their Joint Statement of Defence on 14^th November, 2017 wherein they admitted paragraph 1 only to the extent that the claimant was an employee under the Edo State Civil Service but denied that he was wrongfully dismissed. The defendants also admitted paragraphs 2,3,4,11,12,15,16,19,31 but deniedparagraphs5,6,7,8,9,10,12,13,14,18,19,20,21,22,23,24,26,27,28,29,30,31,32,33,34,35,36,37,39,40,41,42,43,44,45,46,47,48,49,50,51,52,54(a – k), 55, 56, 57, 58(a – k) Statement of Facts.

The defendants averred that the claimant’s suspension and dismissal from the employment of the 2^nd Defendant was done in compliance with theCivil Service Rules and Regulations.

The defendants averred on the issue of promotion and grade level of the claimant that the material consideration for promotion is that the concerned officer must be free of any pending disciplinary case or issue before he can qualify, and the mere fact that he had undergone a promotion interview is not a sine qua non for been promoted.

The defendants reinforced the allegations against the claimant that he collected the sum of N1,000,000.00 from or on behalf of accused persons to pervert the course of justice and visited accused persons in prison custody, an action which is inimical to his status as a state counsel, thereby casting aspersion on the integrity of the prosecutorial powers of the Ministry of Justice, Edo State.

The defendants stated that this allegation borders on serious misconduct and is also criminal hence the petition was referred to the Department of State Security (DSS) to investigate the criminal aspect while also pursuing an administrative action against the claimant.The 4^th defendant denied the allegations of bias and throwing out the claimant’s personal effects from his office in the Ministry of Justice as contained in the statement of facts.

Finally, the defendants urged the court to dismiss this suit with substantial cost as same is frivolous, vexatious and time wasting as the claimant is not entitled to the reliefs sought.

The claimant in his Reply to the Statement of Defence denied paragraphs 2 – 52 of the statement of defence and stated that due process was not followed in the disciplinary proceedings instituted against him. The Claimant further averred that the disciplinary committee never at any time recommended his dismissal but it was the 4^th defendant that re-wrote the report and recommended that he should be dismissed from the service.

The trial of this case commenced on the6^th of February, 2018 with the claimant testifying for himself as CW1 and one Mr Kingsley Odiase as CW2. They both adopted their sworn statements on oath and tendered several documents which were admitted in evidence and marked as Exhibits KU1 – KU15(a-d) and were duly cross examined.

The defendants opened their defence on the 18^th of July, 2018 by calling the 5^th Defendant, Miss Deborah Enakhimion, the Permanent Secretary in Edo State Civil Service Commission(former director of Administration and Supplies of the Ministry of Justice, Edo State) as DW1 and tendered several exhibits which were admitted and marked Exhibits DB1(a-c) – DB13, she was cross examined and the defence thereafter closed its case.

The case was adjourned for parties to file their final written addresses, and parties adopted their respective addresses on the 20^th February, 2019, whereafter the case was adjourned for judgment.

The Defendant’s counsel adopted his final written address dated 17^th December, 2018, at the hearing wherein two issues were formulated for determination to wit:

Whether the 4^th Defendant by virtue of his office is empowered by law to query and suspend the Claimant by virtue of the Claimant’s status while in the employment of the 2^nd Defendant.

Whether the Claimant was afforded a fair hearing before he was dismissed from the service of Edo State Government.

On issue one, counsel to the defendant submitted that the claimant’s submission that the 4^th Defendant had no power to issue him with a query or suspend him is far from the provisions of Rules and Regulations of the Civil Service Rules (2006). Specifically, Rule 030103states that the State Civil Service Commission delegated full disciplinary powers to the Permanent Secretaries/Heads of Extra Ministerial Departments in respect of Officers on salary grade level 01 – 13 with exception of the power to dismiss, which was limited to officers on Grade Level 01 – 06. He submitted that since the Claimant was a Grade level 10 officer, he is subject to the disciplinary powers of the 4^th Defendant.

Enahoro Aghomon, Esq. of counsel for the Defendants in response to the claim for promotion submitted that the mere fact that an officer had undergone an interview session cannot translate to his being promoted automatically, since it is just one of the steps used to assess prospective candidates.

Learned Counsel asserted that the claimant had a pending disciplinary action against him at the material time and therefore became ineligible for consideration for promotion. He citedRules 020701(b) of Exhibit D15which clearly provides that:

“all officers who fall within the field of selection for any promotion exercise shall be considered except those who are under disciplinary action”.

Defence counsel submitted that there was no breach of the Civil Service Rules in the process that eventually culminated in the dismissal of the claimant, citing Rule 030103 which states:

“The state Civil Service Commission has delegated full disciplinary powers to permanent secretaries and Head of Extra-Ministerial Offices of officers on salary GL13 and below with the exception of the power of dismissal which has been delegated only from GL 06 and below”.

Learned counsel also citedRules 030401 and 030402 of Exhibit D15, on serious misconduct and submitted that the petition against the claimant was for perversion of justice and fraud which placed it under the category of serious misconduct that can lead to dismissal. He pointed out that the claimant under cross examination admitted the allegations and these acts, he submits constituted serious misconduct. He submitted that it is the height of professional misconduct for a counsel serving in the Ministry of Justice vested with the legal duty of prosecuting accused persons in court, to visit an accused person in prison custody and collect money from his family with the excuse that it was to help him secure and pay for the services of a defence counsel. He added that the claimant did not attempt to brief or pay any lawyer and only returned the money after five (5) months when it became an issue.

He further posited that, from the evidence available, the recommendations of the disciplinary panel was sent to the 2^nd defendant who jettisoned the report of the panel and approved the dismissal of the claimant from the service, and the 4^th defendant ‘s role was merely to communicate the decision to the claimant.

He therefore urged the court to hold the basis of the arguments set out above that there was no violation of the process leading to the claimant’s dismissal.

On issue two, counsel submitted that the claimant was afforded an opportunity to defend himself on the allegations against him. He asserted that from the evidence led and exhibits tendered, it is clear that the claimant was not denied fair hearing. He submitted that the Claimant, upon the receipt of the petition written against him (Exhibit KU4), was issued with Exhibit KU5 and he replied through Exhibit KU7. The claimant was placed on suspension by the 4^th defendant who had disciplinary control over him in accordance with the Rules of the Service; thereafter, a committee was set up headed by the 6^th Defendant, and the claimant was invited to appear before the committee vide Exhibit KU8. The claimant also admitted that he was invited by the SSS ( sic State Security Service) for interrogation. He therefore posited that it is not a criteria for an employee to be tried on a criminal charge before he can be dismissed and cited Yusuf v. UBN Ltd. (1996) 6 NWLR (Part 632 at 635), Adeayo v. Akatapa & Ors. (2015) LPELR – 41703 (CA) and others.

In conclusion, counsel urged the court to hold that there was compliance with the Civil Service Rules in the disciplinaryprocedure undergone by the claimant, and there was no miscarriage of justice in the suspension and eventual dismissal of the claimant.

The counsel to the claimant filed his final written address first, the address is dated and filed on the 29^th of November, 2018, wherein he formulated two (2) issues for determination to wit:

Whether the process leading to the dismissal of the claimant and the dismissal itself was not a nullity having failed to comply with the strict provisions of the Edo State Civil Service Rules, 2006 and therefore liable to be set aside by this honorable court.

Whether the claimant was not deprived of his constitutional right to fair hearing by the defendants in the course of their investigation into the allegations against him and his eventual dismissal.

On issue one, P.O Osarenkhoe of counsel for the claimant submitted that that the law governing the recruitment, promotion and discipline of civil servants is the relevant civil service rules of the state or the federation. He asserted that the rules are subsidiary legislation which provides strict guidelines for the conditions of service of civil servants hence a breach of which can render the entire procedure a nullity. He cited MR C.N Okocha V Civil Service Commission (Edo State) & Anor (2003) LPELR- 7268CA. and submitted that the employment of the Claimant is statutory flavored, hence he can only be disciplined or dismissed in accordance with the rules and relevant law.

Learned counsel submitted that the procedure for discipline of such an officer for misconduct or serious misconduct is clearly spelt out in the Civil Service Rules.He citedRules 030102and 030103. He therefore submitted that it is clear from the above cited provisions that only the 2^nd Defendant can exercise disciplinary control over a public officer on grade level 7 and above. He also submitted that the steps to be taken by the 2^nd Defendant includes;

Issuance of a Query
The officer must be given access to the documents to be used against him
The specific rule flouted must be stated in the query and the likely penalty
The officer is required to respond in writing within the period stated in the query

Counsel noted that the claimant was queried under the wrong rules and since by the relevant rule the use of the word “must” makes it mandatory to state the specific rule the officer had flouted, non-compliance makes the query defective. He cited Ogunsakin & anor v Ajidara & Ors (2007) LPELR 4733 CA.

Paul Osarenkhoe of counsel noted that an examination of the query, i.e. Exhibit KU5 revealed that it was issued and signed by the 5^th defendant, who does not have the power to issue query to the claimant and that assuming without conceding that the 2^nd Defendant had delegated such powers to the 4^th Defendant, the 4^th Defendant, cannot further delegate under the rules(Delegatus non potest delegare). He therefore submitted that Exhibit KU5 is invalid and therefore should be set aside and cited University of Ibadan v. Bassey (2016) LPELR 41117 C. He prayed the court to so hold.

In addition, learned counsel for the claimant stated that it is in evidence that the investigation/disciplinary committee on the claimant was set up by the 4^th defendant who lacked such power under the rules to so do and that the 4^th defendant single handedly determined the chairmanship and membership of the committee. He stated that by the provision of the rules, it is clear and explicit that only the commission can set up the board of enquiry pointing out that Exhibit DB.5 reveals that it was the Head of Service that approved the membership of the committee and posited that this is contrary to Rule 030307(v) which specifies that only the 2^nd Defendant has the power to do this, he citedE.P Iderima v Rivers State Civil Service Commission (2005) LPELR 1420 S.C

Finally, he submitted that by Rule 030307 (xiii) of the Edo State Civil Service Rules, all disciplinary procedures MUST commence and be completed within a period of 60 days except where it involves a criminal case. He emphasized that the exception envisaged by the rules is where the officer is involved in a criminal trial and the commission is mandated pursuant to the provisions of the rules to await the determination of that trial before proceeding to discipline the officer. In the instant case, he pointed out that the disciplinary procedure commenced on 25/10/2016 vide Exhibit KU 05and was concluded on 17/5/2017 when the letter of dismissal was issued to the claimant, meaning it took over 210 days well in excess of the 60 days mandatorily provided by law and in contravention of the civil service rules. He cited E.P Iderima v Rivers State Civil Service Commission (supra)

On fair hearing, Counsel to the Claimant stated that it is a constitutional right guaranteed to all citizens of Nigeria. He stated that the right to fair hearing has been held to rest on two pillars:

Audi altarem partem; “hear the other side also
Nemo judex in causa sua; you cannot be a judge in your own case”

He cited Atano v. A.G Bendel State (1988) 2 NWLR part 75 Page 132and Danladi vs Dangiri (2015) ALL FWLR PART 768 PAGE 815@ 822 TO 832 RATIO 5 SCand submitted that the right to fair hearing is breached/violated when there is a manifestation of bias, he cited Customary Court of Edo State v. Aguele & Ors (2006) LPELR 7627 CA and Adebisi v The State (2014) LPELR 22694 S.C. He argued that in the instant case, the disciplinary procedure and eventual dismissal of the claimant was fraught with bias and a consequent denial of fair hearing. He cited several cases and submitted that denial of fair hearing renders the entire procedure a nullity, he therefore prayed the Court to resolve this issue in favor of the claimant.

In adumbrating, claimant’s counsel submitted that the Defendants’ counsel had distorted the evidence in his address, and urged the court to discountenance the arguments based on the distortions, as it is misleading.

In conclusion he prayed the court to hold that the dismissal of the claimant having failed to comply with the statutory provisions of the Edo State Civil Service Rules 2006 is improper, wrongful and illegal. He therefore urged the court to set aside the dismissal and grant all the reliefs of the claimant in this case.

The Defendants filed a Reply on Point of Law in response to the Claimant’s Final Written Address on 28^th January, 2019.

In the Reply, the Defendants submitted that the powers vested in the 2^nd defendant on its disciplinary function which includes the setting up of Disciplinary Committees in appropriate cases is allowed to be delegated and all incidental powers thereto, as there is nothing in any law or regulation which makes it mandatory for the committee set up by the 4^th Defendant to forward its recommendation directly to the 2^nd Defendant., and so there was nothing wrong with the 4^th Defendant receiving the report of the committee set up by him, especially, since the report was eventually transmitted to the 2^nd Defendant.

Furthermore, defendants submitted that the claimant did not adduce any evidence in proof that the 4^th Defendant varied the decision of the Disciplinary committee, or cited any part of the Civil Service Rules that disallows the 4^th Defendant to write his comments on the Disciplinary Committee report set up by him more so the report of the disciplinary committee and comments of the 4^th Defendant are mere recommendations, which the 2^nd defendant retains the prerogative to accept, reject and or vary.

In reply to the claimant’s contention on the length of time allowed for disciplinary procedure, defence counsel submitted that the exception to the general rule of 60 days’ time limitis when it involves a criminal case such as in the instant case.

The defendants therefore urged the court to dismiss the suit in its entirety.

I have studied and read all the processes in this case, I have also at the trial listened to the witnesses and watched their demeanour, I have equally read the submissions of counsel in their written addresses and have come up with two issues that will best determine this case, that is ;

Whether or not due process was followed in the dismissal of the Claimant from the employment of the Edo State Government.
Whether or not the claimant was afforded fair hearing in the process leading to his dismissal from the service of the Edo state Government.

In resolving issue one, it is necessary to go through the steps leading to the dismissal of the claimants employment. It is in evidence that the claimant, a state counsel with the Ministry of Justice, Edo State, was alleged to have committedserious misconduct with a resultant penalty of dismissal. The claimant was issued with a query, and later invited to face an Administrative Panel.The panel sat and recommended that the claimant be demoted, the 2^nd Defendant thereafter rejected the recommendation and opted to dismiss the claimant, and same was communicated to him through the 4^th Defendant. The Claimant on the other hand stated in his case before this court that he was issued with a query by the 4^th Defendant and thereafter suspended, he stated that this is contrary to the rules guiding his employment as it was the 4^th Defendant that constituted the disciplinary Committee that tried him, and the committee recommended his demotion not dismissal. He asserted that he was issued with a letter of dismissal by the 4^th Defendant, he also alleged that the 4^thDefendant exhibited bias against him and denied him his constitutional right to fair hearing. In addition he contended that the 4^th Defendant had no power in law to suspend or dismiss him, and he also lacked the power to constitute a panel to try him and vary their report, as only the 2^nd Defendant is empowered to perform the roles played by the 4^th Defendant. It was his case that the disciplinary process instituted against him was in excess of the prescribed 60 days under the Civil Service Rules, and that a delegated power cannot be delegated as was done by the 4^th Defendant in this case and he was dismissed under a wrong rule.

In F.M.C Ido-Ekiti V. Alabi (2012) 2 NWLR (Pt.1285) 411 CA, the court of Appeal held;

“In a claim for wrongful termination of appointment, the onus is always on the employee:

(a) To place before the court the terms of contract of employment; and

(b) To prove in what manner the terms were breached by the employer.

It is trite that the contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof.

It is not in contention that the employment of the claimant is statutorily flavoured, a statutory employment has been defined in a variety of authorities as an employment guided by statute or where the conditions of service are contained in regulations derived from statutory provisions, see AUCHI POLYTECHNIC V. OKUOGHAE (2005) 10 NWLR (PT. 933) 279, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599.

The extant statute guiding the claimant’s employment is the Edo State civil Service Rules, 2006 which was marked as ExhibitDB 15 in this case. The relevant provisions on discipline of staff are contained in chapter 3 which deals specifically with matters of discipline, of interest in this case are the provisions of the following rules;

Rule 030103- The State Civil Service Commission has delegated full disciplinary powers to Permanent Secretaries and Heads of Extra- Ministerial Offices in respect of officers on Salary G L 13 and below with the exception of the power of dismissal which has been delegated only from GL 06 and below.

Rule 030307-Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with this Rule.

The officer shall be notified in writing of the grounds on which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) used against him and he should be asked to state in his defence that he has been given access to documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he relies to exculpate himself.
The query, or preliminary letter shall be in the format shown in Appendix II

iii. If the officer submits his representations and the State Civil Service Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the commission may take such actions against the officer as it deems appropriate.

……………………………………..

(Underling mine for emphasis)

Rule 030401- DEFINITION; Serious misconduct is a specific act of very serious wrongdoing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.

Rule 030402- Serious acts of misconduct include:

(a) Falsification of records

(b) Suppression of records

(J)Bribery

(K) Corruption

(S)Divided loyalty

(w)Any other act Unbecoming of a Public Officer

Rule 030406- Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he should forthwith be prohibited from carrying out his duties. Pending investigation into the misconduct, the State Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his delegated powers)shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his emolument.

A quick study of the above cited rules discloses the following highlights;

The disciplinary power of the 2^nd Defendant was delegated to the 4^th Defendant from GL 13 and below with the exception of the power to dismiss which is limited to GL 06 and below.
The officer to be disciplined must be notified in writing of the grounds for which he is undergoing disciplinary procedure, the rule he has breached and the penalty.
The officer must be allowed access to any documents used against him and the liberty of stating his defence, and fair hearing if he is required to face an inquiry
The 2^nd Defendant is the only body empowered to dismiss a senior officer in the State Civil Service.
Suspension of an officer applies where a prima face case is established and if it is in the public interest to suspend the officer from office and from enjoying his emoluments
Serious misconduct includes acts of serious wrong doing and improper behaviour that can lead to a dismissal.
All disciplinary procedures must be commenced and completed within 60 days except where it involves criminal cases.

There is no doubt that the 4^th Defendant retains the power to suspend the claimant who was a GL 10 officer under Rule 030103 of Exhibit DB15, the rule expressly bestowed on the Permanent secretary/ Head of Extra Ministerial offices, full disciplinary powers over officers under GL 13 in the service except for the power to dismiss officers which is limited to officers on GL 01-06. Rule 030406 allows for suspension of an officer from office inclusive of the enjoyment of his emoluments pending investigation into a misconduct where a prima facie case has been established against such officer. In Ajidagba V. I.G.P 1958 1 SCNLR 60 the Supreme Court defined the term Prima facie as a ground for proceeding, it was also held in that judgment that:

“Prima facie is not the same as proof which comes later when the court has to determine whether the accused is finally guilty or not guilty….”

In other words, evidence discloses a prima facie case when if it remains un-contradicted and if believed, will be sufficient to proof the case against an accused. I therefore find in the light of the above that the 4^th Defendant has the power to suspend the claimant. I so hold.

The claimant in this case made heavy weather of the fact that the wrong statute was cited in the query letter marked as EXHIBIT KU5in citing year 2000 Rules, and this negates the specific provisions of Rule 030307 (i) of the rules, this argument to me is untenable, considering the holding of court in several authorities on this issue. The position of the law is that mere reference to a wrong law cannot vitiate an action, see MIKE OMHENKE OBOMHENSE V. RICHARD ERHAHON 1993 7 SCNJ 479 where Karibi Whyte stated thus;

“I agree that the principle is now well established that where a relief or remedy under a wrong law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong law relied upon………This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct law to be applied”

It will be stretching the rule too far in the instant case, if the wrong citation of the specific rule the claimant was alleged to have infringed will invalidate a query, bearing in mind that the term “serious misconduct” was used in Exhibit KU5 and the year 2000 rule admitted as Exhibit DB14 was cited in Exhibit KU5a replicate of the 2006 Rule. In Rule 030401 of EXHIBIT DB15“serious misconduct” was defined as follows:

“Serious misconduct is a specific act of very serious wrong doing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal”

The term serious misconduct under Rule 030402 of Exhibit DB15 includes the following; Bribery and corruption, divided loyalty e.t.c while a replica Provisions in EXHIBIT DB14 mentioned corruption and other sundry offences. It is not in doubt that Rule 030307(1) provides that the officer knows the particular rule he had breached, and this was expressly stated in Exhibit KU 5 where he was alleged to have committed serious misconduct and details of the offence allegation was provided, the nature of which can lead to dismissal, thus citing a wrong statute cannot take away the specifics of the offence committed and the resultant penalty, as this was also provided for in the extant Rules. The claimant in addition also faced a disciplinary committee on the same allegation and so was never in doubt of the allegation levelled against him. The question of whether the panel was duly constituted or not is however another issue. In WILLIAM V. IBEJIAKO & ORS 2008 LPELR 5102 Garba J.C.A held;

“though learned counsel had used and relied on the wrong law for the preliminary objection” that alone would not defeat it if it can be premised under an existing or subsisting law which the court has the duty to take judicial notice of …….”

It is worthy of note that by virtue ofSection 106 (a) of the Evidence Act, 2011, Exhibit DB 15 i.e Edo State Civil Service Rules 2006 is a subsisting law which contains substantially the same provisions as the old Rules cited in Exhibit KU 5. I therefore find based on the above premise that the citation of the old law instead of the extant 2006 Civil Service Rules of Edo State is insufficient to void the query (EXHIBIT KU5) issued against the claimant, I so hold.

On the argument of the claimant’s counsel that the disciplinary proceedings instituted against the claimant exceeded the 60 days limit prescribed by the Rules, the position of the law as stated in BAMGBOYE V. UNIVERSITY OF ILORIN & ANOR 1999 10 NWLR PART 622 perUwaifo J.S.C is;

“Arguments have been canvassed on behalf of the appellant that because his suspension lasted beyond 3 months it was in contravention of S. 15(4) of the Act and therefore it rendered the disciplinary proceedings a nullity. I think this a complete misconception of that provision of the Act. I believe one can say that the purpose of giving a time limit in that provision is to ensure that a person on suspension during a disciplinary proceeding is not made to suffer undue hardship by an excessive length of suspension when he is placed only on half pay. I do not see how by exceeding 3 months the disciplinary proceeding is rendered a nullity. In fact the council is empowered to exceed the initial 3 months period by not more than a further 3 months. From what happened in the present case, the suspension lasted some 5 months. Unless there is clear evidence to the contrary, I must assume that the council took liberty under S. 15(4) read as a whole to exceed the initial 3 months. In any event, I am of the view that if the period allowed, whether the initial 3 months or the further 3 months, is exceeded, that will not render the disciplinary proceedings a nullity.”

I find that exceeding the time limit for disciplinary proceedings is not enough to render such proceedings a nullity. I so hold.

It is apt to state that the claimant in this suit has also alleged bias and lack of fair hearing in the process leading up to his dismissal, pursuant to this he highlighted several areas where the Defendants manifested the bias in the process,.

It is trite that for an effective and just determination of a contract of employment protected by statute, the provision of the statute must be satisfied as a breach thereof renders the act of termination/dismissal ultra vires and hence void. This is because the principle of natural justice is paramount in deciding a case of this kind and the principle of audi alterem partem, which is constitutionally guaranteed, is to ensure that parties are given the requisite opportunity to be heard and present their cases in defence of the alleged misconduct before dismissal. A breach of which touches on the foundation of the contract and will be declared null and void and of no effect by the court. See the cases of Chief Isaac Egbuchu v.Continental Merchant Bank Plc & Ors [2016] LPELR 40053 SC; Federal Polytechnic Ede & Ors v. Alhaji Lukman Ademola Oyebanji [2012] LPELR 19696 CA; Tsemwan & Ors v. Governor of Plateau State 7 Anor [2012] LPELR 7922 CA.

The position of the law is that where an employee is being alleged of misconduct, the employer must inform him/her via a written notice or query as the case may be; stating the reasons for such allegation against him; he must be given an opportunity to defend himself, allowed to make representation or defence thereto at a disciplinary panel set up for that purpose; he should also be given an opportunity to cross examine his accusers if any or any witness who testified on behalf of the employer; and allowed to call witnesses to corroborate his defence; and the documents to be used against him must be given to him before the date of the panel to enable him adequately prepare for his defence at the panel of disciplinary committee. See the case of Benin Electricity Distribution Company Ltd v. Esealuka [2013] LPELR 20159 CA.

On whether the disciplinary committee that was constituted to investigate the claimant was duly constituted. The procedure to be followed for misconduct and serious misconduct are as provided as follows:

Rule 030305- If it is represented to the State Civil Service Commission that an officer has been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 030306 with a view to dismissal, it may cause an investigation to be made into the matter in such manner as it considers proper and the officer shall be entitled to know the whole case made against him, and shall have adequate opportunity of making his defence. If as a result, the Commission decided that the allegation is proved, it may inflict any other punishment upon the officer such as reduction in rank, withholding or deferment of increment or otherwise.

Rule 030307 – Unlessthe method of dismissal is otherwise provided for in these Rules, an officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with this Rule.

The officer shall be notified in writing of the grounds on which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) used against him and he should be asked to state in his defence that he has been given access to documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he relies to exculpate himself.
The query, or preliminary letter shall be in the format shown in Appendix II

If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate.
Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed Chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of the inquiry. The head if the officers department shall not be a member of the board.
That the officer shall be informed that, on a specific day, the question of his dismissal shall be brought before the board and he shall be required to appear before it to defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the board.

vii. Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto.

viii. If during the course of the inquiry further grounds for dismissal are disclosed, and the State Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken prescribed above in respect of the original grounds.

The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses.
If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such an action shall immediately be taken.
If the Commission does not approve the officers dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him if he was interdicted or suspended.

xii. If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly; and

xiii. All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.

From the above stated provisions, it is clear that the first step to take when an officer is alleged of misconduct is to give him a notification in writing as laid down by the rules and where the commission deems it fit to set up an inquiry to investigate further on the matter it will do so. The entire process enunciated above must be strictly followed as non-compliance may render the process of dismissal null and void. See Obianwuna v. NEPA [2016] LPELR 40935 CA.

In the instant case, the Claimant was issued a query on the 25^th of October, 2016 on the grounds that he violated the provisions of the Edo state civil service rules. He replied to the query on the 26^th of October, 2016 and was suspended on that same day. He was further invited to appear before a disciplinary committee constituted to investigate the allegation against him on the 29^th of December, 2016, the report of the committee was transmitted to the Edo State Civil Service Commission who in turn gave their final verdict on the 11^th of May, 2017. The pertinent question to ask now is, was due procedure followed in setting up the disciplinary committee that eventually led to the dismissal of the Claimant? I answer this in the affirmative as by the provisions already enunciated above the following steps were taken before the Claimant was dismissed:

He was notified in writing according to the laid down rules of the Edo state civil service commission.
The permanent secretary exercising her disciplinary powers as delegated to her by the state Civil Service Commission, set up an inquiry committee to investigate further the allegations against the Claimant.
The recommendation of the committee was to demote the Claimant by one rank but upon transmission of the proceedings and recommendations to the Civil Service Commission, the recommendation of the disciplinary committee was overturned as provided for in Rule 030307 (iii).
The Civil Service Commission exercised its right to dismiss the Claimant and directed the Permanent Secretary to communicate their decision to the Claimant. The letter of dismissal was therefore issued under the directive of the 2^nd Defendant, as the decision to dismiss the claimant was made by the 2^nd Defendant as disclosed in Exhibit DB12.

It is the position of the law that in a statutory employment, non-compliance with any of the provisions governing the employment relationship will invalidate the entire procedure. See Jide Osisanya V. Afribank Nig PLC 2007 1-2 SC 317per Oguntade JSC;

“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings.”

From the above cited case law, it is right to say that where the provisions of a statute governing the employment relationship is duly followed, it will be held that fair hearing was afforded to the claimant. It is in this light that I find and hold that the Defendants having complied with the statutory provision of the civil service rules of Edo State, 2006, in the disciplinary process against the claimant, the consequent dismissal of the claimant is lawful.

The claimant in his evidence in chief averred that his letter of dismissal i.eExhibit KU9 dated 17^th May,2017was backdated to take retrospective effect from 25^th day of October, 2016,

The position of the law as reiterated in the 2018 court of Appeal case of Mr Abiade Akinbola V. Ministry for FCT &Anor [2018] LPELR CA/A/37/2006 Per Peter Olabisi Ige J.C.A is as follows:

“… The Appellant cannot be dismissed retrospectively. In other words, the Respondents have no powers under the Public Service Rules to back date the dismissal of Appellant to 24th November, 1999 …..Dealing with this aspect of the letter which made the effective date of the dismissal 29th December, 1978, the learned trial Judge said; “The plaintiff’s appointment with the Bank subsisted until the 20th June, 1979 when the letter of dismissal was written and presumably served on the plaintiff and not the 29th December, 1978 (the retrospective date).” I entirely agree with the learned trial Judge on this view of hers. In this passage from the judgment of the learned trial Judge, in my view, held that the effective date of the dismissal of the plaintiff from the services of the defendant was 28th June, 1979 and not 29th December, 1978 which was indicated in the letter of dismissal written to the plaintiff. Where I part company with the learned trial Judge is the earlier findings of hers to the effect that the effective date in the letter of dismissal which she held to be invalid invalidates the whole of the grounds upon which the defendant relies for dismissing the plaintiff…”

In the instant case, the effective date of dismissal is 17^th May, 2017 and not 25^th October, 2016 as canvassed in Exhibit KU9. I so hold.

I will now go on to the reliefs sought by the claimant in this suit.

Relief a, which isa declarationthat the indefinite suspension without pay of the Claimant by the 4^th Defendant and subsequent dismissal of Claimant vide letter dated 17^th May, 2017 from Edo State Civil Service by the 4^thDefendant constitutes/constituted an unfair dismissal without any factual basis at all and as a result wrongful, unlawful, unconstitutional, illegal and invalid fails, I find that the 4^th Defendant retains the power to suspend the claimant but this must be in accordance with the statutory provisions guiding the employment, the issue of exceeding the time limit for the disciplinary process, thus elongating the suspension of the claimant while his salary remained unpaid is unconscionable, the Defendants in their defence excused themselves from this issue on the ground that the allegation against the claimant arose from a criminal case, and cited Rule 030307 (iii) (sic) of the civil service rules, their submission that this was an exception to the 60 days limitation period cannot avail them, having admitted that what they instituted against the claimant was an administrative action as distinct from the criminal case which was referred to the DSS, and so they are bound to complete the process within the time limit, although this will not vitiate the entire disciplinary proceedings as earlier held in this judgment,but having exceeded the time limit for the disciplinary procedure as specified under the rules, they cannot evade liability for the emoluments for the period of the suspension in the instant case based on the following principles; i.e. the law generally is that the court will not interfere with right of an employer to discipline any erring employee in the interest of the organization or institution, see Imonikhe v. Unity bank plc[2011] 12 NWLR (Pt.1262) 624 SC at 649. In the English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653,where the court held that employers cannot suspend without pay where there is no express or contractual right to do so, reasons being that in suspending an employee without pay, the employer has taken it upon itself to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. And in fact, a person unlawfully suspended from work can seek redress in court and claim his full salary, see ACB Ltd v. Ufondu [1997] 10 NWLR (Pt.523) 169 CA.

Also in S.P.D.C.V. Emehuru, supra 151 R. 14 it was held as follows:

“When an employee is placed on suspension he is placed on hold, he lives day by day in anticipation of either being recalled or laid off. He is not at liberty to utilize his time elsewhere nor as he desires until after closing hours. This was the exact disability placed on the respondent by the term of page 2 the letter of suspension from duty dated the 7^th June, 1994…to have kept an employee on suspension for that long is in fact, unjustified, cruel and unduly oppressive. – Pg 192 – 193. In the light of the above, I find that the Claimant’s suspension without pay having exceeded the time limit for the disciplinary procedure is wrongful see clause 030307 (xiii). The Claimant gave evidence that he was a GL 10 officer and his last paid salary before his dismissal wasN173,610.32k p.m, the Defendants however denied this averment in their statement of defence but admitted that the claimant was a GL 10 officer. The claimant did not tender his last payslip or Bank statement in proof of this, nonetheless, I find that based on the facts adduced the claimant is entitled to the arrears of salaries from the time of his suspension, i.e. 26^th October, 2016 – 17^th May, 2017 based on his last salary grade, i.e. GL 10 as stated in his evidence; I so hold.

Relief b, is a claim for declarationthat the setting up/constitution of the Disciplinary Committee by the 4^thDefendant and the subsequent purported findings of the Disciplinary Committee and its report/recommendations is unlawful, unconstitutional, illegal and invalid. Having held above that the Defendants complied with the statutory provision of the civil service rules of Edo State, 2006, in the setting up of the disciplinary Committee to investigate the claimant, the consequent dismissal of the claimant is lawful and this relief hereby fails. I so hold.

Flowing from relief b, I find that reliefs C, D, E, F, G also fail. I so hold.

Relief H is for anorderdirecting the Edo State Civil Service Commission (2^nd Defendant) to immediately re-instate the Claimant to his statutorily protected employment with the Ministry of Justice in the Edo State Civil Service, in all respects and for all rights and entitlements of the Claimant including his promotions, arrears of salaries (N173,610.32k monthly) and emolument to be made effective from the 26^th day of October, 2016 being the date Claimant’s dismissal was made to take retrospective effect.

It is the law that only where the termination of an employment with statutory flavor has been declared unlawful, the parties will revert back to the status quo. See the cases of Bassey v. A.G. Akwa Ibom State & Ors [2016] LPELR-41244CA; Odiase v. Auchi Polytechnic [1998] 4 NWLR (Pt.546) 477 CA. It is in view of this position of law as reiterated in the above cited cases that I find that the Claimant is not entitled to be reinstated, having held that his dismissal was not wrongful. I so hold.

Relief I is an order of perpetual injunction restraining the Defendants jointly and severally from harassing, blackmailing or subjecting the Claimant to any form of disadvantages on account of bringing this claims before this Court in pursuance of his legal rights. It is long settled that one of the major considerations for the grant of an injunctive relief is the compelling interest at stake, See Okoli v. Duru [2007] All FWLR (PT 367) 887 at 926, para F-G (CA). The Court must exercise discretion in the grant of injunctive reliefs of this nature, it is evident from the case that the Claimant has an interest which needs to be protected. In so far as this is not the finding of court in this case view, I hold that there is no basis for an injunctive order in this case. The relief therefore fails.

The claimant in his relief Jis praying for an order of court awarding compensatory and exemplary damages in his favour. It is trite that damages is usually awarded as a consequence of a breach of contract and since there is no breach of contractfrom the facts in this case, the claimant having failed to proffer credible proof in this regard. The claimant had asserted in his evidence in chief at the trial that he is entitled to this relief, pursuant to this he called CW2. In the claimant’s testimony, he stated that the door into his office was forced open and some of his personal belongings were thrown out of the officepursuant to the order of the 4^th Defendant,his account of event remained largely uncorroborated and the evidence of CW2 will not fill in this gap as CW2 only came to give evidence on what he was told by the claimant, since he was not at the scene at the material time. The photographs tendered by the claimant in proof of his assertion on this marked as Exhibit KU15b, c and dis also not helpful in this regard as they did not disclose any discernible damage on the face of same, the entire evidence adduced on this issue by the claimant falls short of the standard of proof required for the grant of this award, consequently the relief fails. I so hold.

In all, the claims succeed in part and for the avoidance of doubt I declare and order as follows:

The dismissal of the Claimant from the Edo State Civil Service is upheld, while the effective date of dismissal is 17^th May, 2017.
The Claimant is entitled to arrears of his salary period of October 26^th, 2016 to 17^th May, 2017, based on Grade Level 10, his last Grade Level.
The Claim for perpetual injunction is refused.
The claim for compensatory and exemplary damages is refused.
The monetary sum awarded in this judgment is to be computed and paid to the claimantby the defendants within 60 days from the date of this judgment failure upon which it will attract an interest of 10% until same is finally liquidated.

I make no order as to cost.

Judgment is accordingly entered.

Hon. Justice A.A Adewemimo

Presiding Judge