MOHAMMED HADIS AUTA VS YOBE STATE JUDICIAL SERVICE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HON. JUSTICE K.I. AMADI.

DATED: JANUARY 31, 2019

SUIT NO: NICN/JOS/24/2015

BETWEEN:

MOHAMMED HADIS AUTA

CLAIMANT

AND

YOBE STATE JUDICIAL SERVICE COMMISSION

DEFENDANT

Representation: J. B. Danboyi for the claimant.

A. Sani for the defendant.

JUDGMENT

INTRODUCTION: –

The claimant commenced this action by a writ of General Form of Complaint dated the 7^th day of July, 2015, claiming as follows:-

A Declaration that the purported compulsory retirement of the claimant by the Defendant is illegal, null and void.
A Declaration that the claimant’s purported compulsory retirement by the Defendant is ultra vires the Defendant and therefore null and void.
A Declaration that the claimant having not reached retirement by age or years of service and not voluntarily retired in line with the Yobe State Judiciary Scheme/Conditions of Service, 2007 cannot be compulsorily retired by the Defendant.
A Declaration that the claimant not being accused nor tried and found guilty of misconduct by any panel of investigation cannot be found guilty of misconduct by the Defendant as this amounted to an infringement of his right to fair hearing and fair trial.
A Declaration that as the employment of the claimant has statutory favour; the claimant cannot be compulsorily retired at the pleasure of the Defendant.
A Declaration that the claimant is still in the employment of the Defendant as a Chief Registrar, which tenure of service remains continuous and uninterrupted by the time it took to determine the issue in the Honourable court; therefore entitled to his salaries, emolument and entitlements from the date of his purported compulsory retirement.
An Order declaring the notice of compulsory retirement issued by the Defendant to the claimant dated 8^th October, 2010 as illegal, null and void same being not in compliance with the provisions of the Yobe State Judiciary Scheme / Conditions of Service, 2007 which governs the Claimant’s employment with Defendant.
An Order reinstating the claimant back to his employment as Chief Registrar Yobe State Sharia Court of Appeal.
An Order directing the payment of the claimant’s salaries, emolument and entitlements from the date of his purported retirement.
An Order of injunction restraining the Defendant from giving effect to the purported albeit, illegal retirement of the claimant and/or treating the claimant as a retired staff of the Defendant.
An Order for payment of the sum of thirty million naira (N30,000,000.00) being general damages.

The defendant entered appearance and filed its statement of defence on the 12th October 2015.

BRIEF FACTS OF THE CASE.

The facts of this case according to the claimant are as follows:

That he was employed by the Defendant on September 1, 1992 as a Magistrate Grade 1. That he rose to the rank of a Chief Registrar on the 29^th of October, 2009 only for his substantive appointment as Chief Registrar to be unilaterally designated to Acting Chief Registrar on the 10^th of June, 2010 by the Defendant. That he protested his as Acting Chief Registrar by way of complaint. That inspite of his complaint of 23^rd June, 2010 against the re-designation of his substantive appointment, the Defendant without responding to the complaint, redeployed him to the Sharia Court division as Acting Chief Inspector on the 8^thof July, 2010.

That while serving as Acting Chief Inspector of the Sharia Courts Division of Sharia Court of Appeal, on the 12^th of August, 2010, he was served with a letter (Exhibit CP), dated 13^th August, 2010 inviting him to appear before an investigation panel on the 16^th August, 2010, to assist the panel in its assignment.

That attached to the invitation letter is another letter (Exhibit CQ) dated 9^th August, 2010 signed by one Umar A. Kachalla, and addressed to the Chief Registrar High Court of Justice, Damaturu, and also a paper (Exhibit CR), titled “Fund Disbursement for the Month of June, 2010 Over Head Cost”. The alleged document sought to be verified by the Defendant.

That he appeared before the investigation panel and objected to the verification exercise and submitted his written objection. That the panel without verifying the authenticity of the document admitted as Exhibit CR and its source among other things overruled his objection.

That in line with the Scheme/Conditions of Service (Exhibit CX), he petitioned the Defendant against the conduct of the whole exercise. That while awaiting the response to his petition (Exhibit CU); the investigation panel in his absence called a witness and admitted payment vouchers and invoices.

That the panel went ahead wrote and submitted a report of its verification exercise marked (Exhibit CW) to the Defendant.

That on the 7^th of October, 2010, the Defendant sat and considered the report of the investigation panel and a letter (Exhibit CV), dated 8^th October, 2010 and titled “Notice of Compulsory Retirement” was served on him. That the Defendant on its own found him guilty of misconduct and compulsorily retired him from the services of the Yobe State Judiciary, by a letter dated 8^th October 2010 titled ‘Notice of Compulsory Retirement” (Exhibit CV) aforesaid.

That aggrieved by the actions of the Defendant, he filed Suit No. YBS/GDM/HC/002/10, on the 18^th of October, 2010 at the High Court of Justice, Damaturu; seeking for reinstatement amongst other reliefs.

That judgment was declared in his favor on the 4^th of October, 2013,wherein the Defendant appealed to the Court of Appeal, Jos, in Appeal No. CA/J/141/2014. The Court of Appeal on the 17^th June, 2015, held that with the effective date of the Constitutional amendment reflected in Section 254(C) (1) being 4^th March, 2011 and hearing in the case was commenced on 18^th April, 2011; the judgment was delivered without jurisdiction. As a result, the suit instituted by the Claimant at the High Court was struck out for want of jurisdiction; which led to this action.

On the other hand, the defendant stated the facts of this case as follows:

That the claimant as the Chief-Registrar cum chief accounting officer of the Yobe State Sharia Court of Appeal was indicted in the disbursement of the overhead cost for the month of June, 2010 and 8 days salary in respect of late Grand Khadi of Yobe State Sharia Court Appeal amounting to the sum of N195, 108.75.

That the defendant in the discharge of its statutory functions constituted a 4-member committee to verify the aforesaid disbursement and the where about of the sum of N195, 108.75 for proper record, accountability and documentation of same. That the claimant was invited to appear before the committee to enable it discharge it’s assignment.

That when the claimant appeared, he presented a well-articulated written preliminary objection on the competence of the committee to undertake the assignment. That the Committee took his objection and delivered a well-considered ruling dismissing his rather premature objection.

That at the resumed sitting of the committee, the claimant walked out on the committee, alleging to have appealed against the ruling dismissing his objection. That the committee had no alternative than to proceed to conduct its business. That the committee took in evidence the Chief Accountant of the Yobe State Sharia Court of Appeal who works directly under the claimant and who verified the issues before the committee, a report was compiled and submitted to the defendant (exhibit CR).

That the claimant only attacked the composition of the committee alleging bias and that the paper containing the summary of the disbursement of June, 2010 overhead cost was “not authentic”.

That the claimant deliberately refused to answer any issue concerning the June, 2010 overhead expenditure and more particularly the where about of the sum of N195,108.75 being the 8 days salary of late Grand Khadi of the Yobe State Sharia Court of Appeal who died on the 22^nd of June, 2010.

That the findings of the panel of investigation (exhibit CW) established a prima facie case against the claimant. The claimant was compulsorily retired from the services of the defendant in its 94^th General meeting of 7^th October, 2010. The defendant came to the conclusion to compulsorily retire the claimant after having considered the report of a panel of investigation for misconduct against the claimant.

TRIAL.

During trial the Claimant testified for himself as CW1 and tendered documents in support of his claim. He was cross examined and thereafter he closed his case. The defendant also called a sole witness in the person of Mohhammed S.P.Gwio, he was equally cross examined and thereafter the defendant closed its case. Consequently, the parties were ordered to file their final written addresses.

In his final written address the learned counsel for the defendant raised one issue for determination thus:

whether the compulsory retirement of the claimant by the defendant was in order in the circumstance of this case.

In arguing this sole issue counsel submitted that the defendant being the master and employer of the claimant has the power to promote, discipline and sanction any of its staff including the claimant. That the claimant is not challenging and in fact did not challenge the statutory power of the defendant to investigate him, but what the claimant was complaining against was an alleged lack of fair hearing occasioned by possible bias on the part of the members of the panel constituted by the defendant.

That the claimant admitted that he was invited to appear before an investigation panel on the 16^th of August, 2010. That he equally admitted that a sheet of paper was attached to the invitation extended to him which contains list of items of the June, 2010 expenditure. That the claimant appeared before the panel on the said 16^th of August, 2010 with prepared, fully typed 8 pages objections to the jurisdiction of the panel. That his objection was subsequently overruled, whereupon he protested and walked out of the panel’s proceedings.

Counsel submitted that, the claimant was afforded adequate opportunity to defend himself but he failed to utilize same. That the claimant cannot be heard to complain of lack of fair hearing. Counsel referred to the cases of T.E.S.T. INC. v. Cheveron Nig. Ltd (2017) 11 NWLR (Pt 1576) 187 @ 224 paras D-E. and Igbinedion v E. S. B. I. R. (2017) 13 NWLR (Pt 1583) 503, where the court held that “a hearing can only be fair when all parties are given a hearing or an opportunity of a hearing. If one of the parties is refused hearing or not given on opportunity to be heard, the hearing cannot qualify as a fair hearing.”

Continuing counsel argued that the defendant has the statutory power to discipline the claimant and that includes the power to suspend or dismiss him as the case may be. That by the provision of section 11(1) (b) of the Interpretation Act, Cap 123 of the Laws of the Federation 2004, where on enactment confers a power to appoint a person to an office or to specified period or not, the power includes power to remove or suspend him. Thus in the absence of any contractual term, the law is that where a person is appointed to an office through a particular procedure, such an appointee could be removed from office through the same procedure. That there is a valid presumption of law that he who hires has the power of firing. Counsel referred to the case of D. C. (Nig) Ltd v Emehuru (2007) 5 NWLR PT 1027 347.

Continuing further counsel submitted that where an employer dismisses or terminates the appointment of an employee on ground of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee, and that he was given a fair hearing, that is to say that, the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure (if any). Counsel referred to the case of University of Calabar v Essien (1990) 10 NWLR (Pt. 477) 225 @ 262 and Bamgboye v University of Ilorin (1999) 10 NWLR (Pt 622),290 where the Supreme Court held that;

For an employer to successfully justify the termination of the employment of his employee which has statutory flavour, such employer must prove to the satisfaction of the trial court that, the allegation made against the employee was disclosed to him and that he was given a fair hearing.

Counsel finally submitted that the claimant in this case was clearly informed about the apparent discrepancy in June, 2010 expenditure and required to clarify same in writing, but the claimant refused to seize the opportunity to do so. That the claimant was compulsorily retired after being found wanting for misconduct (exhibit CW). Counsel urged the court to dismiss this suit.

The learned counsel for the claimant in his own final written address raised six issues for determination as follows;

Whether the employment of the Claimant with Defendant has statutory flavor.
Whether the Defendant has power to designate the substantive appointment of the Claimant as Chief Registrar to Acting Chief Registrar, and later redeploy him to Sharia Courts Division as Acting Chief Inspector /Acting Director.
Whether the investigation Panel before which the Claimant appeared has the power to try and find the Claimant guilty of misconduct in line with the Yobe State Judiciary Scheme/Condition of Service.
Whether the Claimant was given a fair hearing by the Investigating Panel and the Defendant in line with the Scheme /Conditions of Service.
Whether the Defendant in the circumstance of this case has power to compulsorily retire the Claimant.

In respect of issue one that is; whether the employment of the Claimant with the Defendant has statutory flavour. Counsel submitted that the Defendant is a creature of the 1999 Constitution as amended. That its powers are set out in Part III C, Sections 5 and 6 of the third schedule thereof.

Furthermore, that the Defendant for the purpose of carrying out its statutory functions made an enabling regulation that is; the “Yobe State Judiciary Scheme/Conditions of Service, May, 2007”. Therefore, in matters of conduct, discipline, tenure of office or termination of appointment of its employees, the Defendant as a statutory body is to comply with the procedure lay down in its Scheme/Conditions of Service. Counsel referred to the case of U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt.363) 376 @ 407 paras A-C where ONU JSC held thus:-

The distinguishing feature of the instant case as clearly and correctly stated by the court below is that:

It is now very well established that when an office or employment has a statutory flavor in the sense that its conditions of service are provided for by statute or regulations made there under, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision, affecting the right or reputation or tenure of office of that employee will be declared null and void. See Shitta Bey v Federal Public Service Commission (1981) 1 SC 40 at 56-57; Olaniyan v University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 612-613; 622-623. Eperolum v University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 201, Olatunbosun v NISER Council (1988) 3 NWLR (Pt. 80) 25 at 41.

Counsel submitted that from the evidence adduced by the parties it is not in dispute that the Claimant prior to his compulsory retirement was a permanent and pensionable staff of the Defendant. Therefore, his employment with the Defendant, including his appointment and removal is prescribed in a statute to wit; the Yobe State Judiciary Scheme/Conditions of Service, May, 2007, (Exhibit CX) and its provisions ought to be strictly adhered to. Counsel urged this Honorable Court to so hold and answer issue one in the affirmative.

In respect of issue two that is; whether the Defendant has power to designate the substantive appointment of the Claimant as Chief Registrar to Acting Chief Registrar, and later redeploy him to Sharia Courts Division as Acting Chief Inspector /Acting Director.

Counsel submitted that by Exhibit CF, that the Defendant on the 29^th October, 2009 appointed the Claimant as the substantive Chief Registrar of the Sharia Court of Appeal. That under the Scheme/Conditions of Service (Exhibit CX), a Chief Registrar on appointment is to continue serving in that capacity until he retires or lawfully removed in line with the laid down procedure. That there is no provision for the designation of such appointment to acting Chief Registrar or redeployment to the post of Acting Chief Inspector or Acting Director Sharia Courts Division. Therefore, the act of designating the appointment of the Claimant to Acting Chief Registrar (Exhibit CM) and the subsequent redeployment to acting Director (Exhibit CO) and later addressed as Acting Chief Inspector was irregular, illegal, null and void, and was done in bad faith.

Continuing counsel argued that the antecedents of the Defendant towards the Claimant show a calculated act to downgrade the Claimant to the rank of Chief Registrar, move him out of the office, set up the panel, used the report of the panel and compulsorily retired him from service, in a culture of impunity. This, the Claimant complained about hence his timely complaints in Exhibits CN, CT and CU respectively. Counsel referred to the case of Bendel State Civil Service Commission & Anor. Versus Alexius Ikechukwu Buzugbe (1984) 7 SC 19 at page 41 lines 7-24 where Aniagolu, JSC held of a similar situation thus:-

The procedure adopted by the Head of Service was without doubt, in breach of regulation 57 of the Bendel State Civil Service Commission regulations 1978 and the “Reduction in rank” of the respondent arising therefrom was clearly irregular, illegal, null and void and of no legal effect. It appears to me that this is an instance in which obedience to procedural provision in an enactment is mandatory. To secure the downgrading of the appellant by disobedience to the procedural provision for disciplining him amounts to a breach of faith with a civil servant by the employer which goes against the intendment of the Pensions Act and the 1979 Constitution.

Counsel submitted that, the act of the Defendant was done in bad faith and in violation of the provisions of the Scheme/Conditions of Service, which therefore rendered ultra vires the action of the Defendant, rendering same null and void. Counsel urged the Honorable Court to hold that the appointment of the Claimant as Chief Registrar remains continuous and uninterrupted.

In respect of issue three that is; whether the investigation Panel before which the Claimant appeared has the power to try and find the Claimant guilty of misconduct in line with the Yobe State Judiciary Scheme/Condition of Service.

Counsel submitted that there was no formal complaint of misconduct leveled against the claimant before the Defendant and the Investigating Panel. That the panel was not asked to investigate an allegation of misconduct against the Claimant and submit a report to that effect.

That the invitation letter Exhibit CP served on the Claimant by the panel only invited him to appear before it for a verification exercise and not as an accused or as a witness. That the Claimant was invited for a verification exercise; wherein the alleged disbursement sheet (Exhibit CR) was said to be unauthentic. That the Claimant objected to its verification on basis that such a document cannot be a subject of verification. That aside the insinuations of the Defendant, it is also curious that the National Judicial Council that allegedly made an over payment of salary into the personal account of a judicial officer now directs the refund of same to the Claimant.

Counsel referred to the case of Adeniyi v Governing Council, Yaba Tech. (1993) 6 NWLR (Pt 300) 467 paras B-G, where it was held that:

A man who appeared before a tribunal without any specific accusation of misconduct and who was called as a witness cannot be said to have been given a fair hearing when at the end of the tribunal and subsequent findings he was found liable for a misconduct of which he was not especially accused.

Continuing further also, counsel submitted that the Claimant was not confronted with any allegation of misconduct; and was not given the opportunity to know or called upon to defend himself of any allegation of misconduct. That by the provision of Sections 3 and 4 of pages 80-83 of the Scheme/Conditions of Service, the disciplinary procedure for Misconduct and Serious Misconduct, is that where an officer is accused of a misconduct, he shall be informed in writing giving details of the unsatisfactory behavior, and calling upon him to submit within a specific time such written representation as he wish to make to exculpate himself, from disciplinary action. That there is nothing to show that anybody has made any complaint or accusation of misconduct against the Claimant. That from the evidence before the court, it is clear that in the matter of the investigation/verification and the subsequent retirement of the Claimant based on the report of the Panel; the Claimant was denied fair hearing against the spirit of Section 36 of the 1999 Constitution as amended. That with the lack of compliance of laid down procedure in the Scheme/Conditions of Service, the action of the Defendant of presenting the alleged disbursement sheet, of setting of the panel, calling for the verification exercise without accusing and trying the Claimant of misconduct and subsequently acting on the report of the panel and compulsorily retiring of the Claimant was done in bad faith, and the panel acted ultra vires its powers. Counsel urged the court to so hold.

On issue four that is; whether the Claimant was given a fair hearing by the investigating panel and the Defendant in line with the Scheme / Conditions of service.

Counsel submitted that from the facts of this case, taking into account the composition of the Judicial Service Commission and the Panel, and the use of unsigned document to set up the panel that the Claimant was a victim of a Conspiracy. Counsel referred to the case of Danladi v. Dangiri (2014)11 S.C.N.J. 155 at page 199 paras. 16-32, where Ngwuta JSC said of such situations thus:-

It is said that justice delayed is justice denied. The reverse is equally disturbing. Justice rushed is a travesty of justice and a threat to the fabric that binds civilized society together. As if the rushed justice was not bad enough, the panel presented to the Taraba House of Assembly an incomplete and edited report upon which the appellant was removed on the 4^th October, 2012, the day following the submission of the report. At least, the respondents did not disclaim the incomplete and edited report.

From the undisputed facts of this case, one has the inevitable but disturbing impression that the panel composed of the respondents was a mere sham and that the removal of the appellant from office was a done deal as it were. In my view, the respondents, in their purported investigation of the allegation made against the appellant, merely played out a script previously prepared and handed over to the panel.

The most disturbing aspect of the Kangaroo Panel is that it was headed by a man described in the processes before this Court as a barrister – one Barrister Nasiru Audu Dangiri. The third member of the Panel was also described as a barrister – one Barrister R. J. Ikitausai. If these two men are actually members of the noble profession to which your Lordships and my humble self, by the Grace of God have the honour to belong, and not people who, for self – aggrandizement adopted the nomenclature “barrister”, the harm they have deliberately perpetrated in this matter is so serious that the attention of the Disciplinary Committee of the Bar ought to be drawn to it.”

If the matter is left at the whims and caprices of politicians and their panels, a State or even the entire country could be reduced to the status of a banana republic. The procedure for impeachment and removal must be guarded jealously by the Courts.

Counsel argued that for the Defendant to accuse the Claimant of misconduct; caused him to be tried of misconduct, and find him guilty of misconduct; the procedure set out in the Scheme/Conditions of Service ought to have been strictly complied with. That the Defendant never complied with the principles of fair hearing, that the provisions of sections 3.1 and 4.1 of the Scheme/Conditions of Service and section 36 (6) of the 1999 Constitution as amended were not complied with, therefore the claimant was denied fair hearing.

Continuing also counsel submitted that from the evidence led, on a careful perusal of the report of the Panel; the Claimant was never accused of misconduct, tried and found guilty of any misconduct. The Panel in its report did not make any recommendation for disciplinary action against the Claimant. In fact, the Panel in the report merely stated at page 12 of the report thus:-

This is how the overhead cost and up keep allowance of the Sharia Court of Appeal for the month of June, 2010 were expended as verified by the Chief Accountant Mohammed Yerima Hammayo.

That the Defendant on the receipt of the report did not call on the Claimant to react to the report; yet it acted on the report, and found the Claimant guilty of misconduct, without specifying which misconduct. That this is in flagrant disregard to principles of natural justice, Section 36 (6) of the 1999 Constitution and the laid down disciplinary procedure in the Scheme/Conditions of Service. Counsel referred to the case of Olatunboson v NISER Council (1988) 3 NWLR 25 (Pt. 80)48.

Counsel argued further that from the evidence, it was the Defendant that submitted the unauthentic document to the panel and called for its verification, and failed to produce/present the alleged directive from the National Judicial Council. Thus, considering the composition of the membership of the Defendant; without saying it loudly, this single act can reduce the commission to ridicule and odium. That the responsibility of the Claimant in the verification exercise was not directly in issue. That he was not directly or by implication, inference or insinuation accused of misconduct by the Defendant and the Panel in the circumstances, thus ought not to have had his employment tampered with in any form without hearing his own side. Counsel urged this Honorable Court to so hold.

In respect of issue five that is; whether the Defendant in the circumstance can compulsorily retire the Claimant of misconduct.

Counsel submitted that on the totality of evidence that there was no accusation, trial or finding of any specific misconduct against the Claimant. That the undisputed facts show that the Claimant was not given a fair hearing coupled with the fact that the Defendant acted in grave violation of the relevant provisions of the Scheme/Conditions of Service. That the Defendant having failed to observe the statutory requirements laid down, the compulsory retirement of the Claimant is therefore ultra vires the Defendant and a nullity.

That under Section 6.1.1 of the Scheme/Conditions of Service, retirement from service is 35 years in service or 60 years of age; whichever is earlier; for all staff from Chief Registrar, Secretary Judicial Service Commission down ward. Meanwhile, that section 6.2.5 provides for retirement where an officer is required by the judiciary to withdraw or retire from the service in public interest. That the situation of the Claimant did not fall under any of above sections.

Counsel submitted further that the Claimant’s status and tenure ought to have been jealously guarded and the Scheme/Conditions of Service strictly adhered to. That the Defendant in the circumstance, acted in flagrant disregard to its own laid down procedure. That in Olaniyan v University of Lagos (1985) 2 NWLR (pt.9) 599, Aniagolu, JSC, at page 655 paras A-B stated thus:

To remove a public servant in flagrant contravention of the Rules governing him, whether under contract or under provision of a statute or Regulations made there under, is to act capriciously and to destabilize the security of tenure of the public servant, frustrate his hopes and aspirations, and thereby act in a manner inimical to order, good government and the well-being of society.

Continuing counsel argued that apart from these situations above, where an officer does not elect to retire voluntarily; the Defendant cannot compulsorily retire him. Counsel referred to the case of Ejitagha v. PHMB (1995) 2 NWLR 189 (part 376) at pg. 199 para. H., where the court held that: –

It is also a well-known practice that only an employee can elect to retire voluntarily at age of 45 or compulsorily at age 60. An employer has no such right of election.

Continuing further, the learned counsel submitted that the Claimant’s retirement letter (Exhibit CV), is to the effect that the retirement was for misconduct. Therefore, the onus is on the Defendant to establish that the Claimant was accused, tried and found guilty of misconduct; in line with the laid down procedure in the Scheme of Service; which the Defendant has failed to do in its defence.

Apart from the forgoing, counsel argued that the document titled ‘Fund Disbursement for the Month of June, 2010 Overhead Cost’ (Exhibit CR,) the source of which was unknown, is neither signed nor authored. That the Defendant relied on it; set up the Panel and called for its verification. Counsel submitted that a document which is not authored cannot be a subject of verification; as its authenticity cannot be proved, counsel referred to the case of GTB Plc v Innoson (Nig.) Ltd (2017) EJSC (VOL.78) 68 at page 84 para. D, where Eko, JSC, held thus:

It is trite that, it is the seal or signature of the author on a document that authenticates the document.

Counsel argued that the Panel acted on it and made its report, relied upon its said report and retired the Claimant of misconduct. that a document which bears no date of execution, no name of the maker and signature, is uncertain, invalid and unenforceable. Therefore, Exhibit CR cannot form the basis of any competent finding of a court of record or tribunal. As such, admitting and acting on the unsigned document by the Defendant and the Panel was a denial of fair hearing to the Claimant, an act which was void and of no effect. Counsel urged the court to grant the reliefs sought in this case.

COURT’S DECISION

I have read all the processes filed by the parties in this suit. I have equally reviewed the evidence led by them. The final written addresses of the parties including the reply of the leaned counsel for the defendant are hereby incorporated into this judgment and further reference shall be made to them where necessary. In my view, all the issues raised by the parties can be summarized into one issue that is whether the claimant is entitled to his claims. I shall therefore treat the claims seriatim in the resolution of this case as follows:

Claims; a, b, c, d, j and g are primarily asking for the same relief; that is a declaration that the compulsory retirement of the claimant be nullified and or declared null and void. They will be treated together.

At the risk of repetition, it is important to highlight some silent facts of this case that are not in dispute between the parties:

1). The employment of the claimant was guided by statutory flavor.

2). The claimant was appointed the Chief Registrar of the Sharia Court of Appeal on the 29^th of October, 2009 by the defendant (exhibit CF).

3) The claimant’s substantive appointment as Chief Registrar was designated to Acting Chief Registrar on the 10^th of June, 2010 by the Defendant (exhibit CM).

4) The claimant protested his designation as Acting Chief Registrar by way of complaint dated 23^rd June 2010(exhibit CN).

5) The defendant did not react to the protest of the claimant aforesaid but redeployed him to Sharia Court Division as Acting Director via a letter dated 9^th July 2010 (exhibit CO).

6) By a letter dated 13^th August 2010(exhibit CP) in which the claimant was addressed as “Chief Inspector Area Court”, he was invited to appear before an investigation penal on Monday 16^th August 2010. That letter (exhibit CP) contained the following sentence as its purpose of investigation: “I have attached the photocopy of verification of expenditure letter for your perusal”

7) The attached photocopy of verification of expenditure aforesaid titled “Fund Disbursement for the Month of June, 2010 Over Head Cost” is admitted as exhibit CR.

8) The claimant appeared before the investigation panel and objected to the verification exercise via a written objection dated 20^th August 2010(exhibit CU). Following which the claimant withdrew further appearance before the panel.

9) The panel over ruled his objection, proceeded to do the verification exercise and thereafter made a report (exhibit CW)

10) The defendant acted on the report and by a letter dated 8^th October 2010 retired the claimant with immediate effect (exhibit CV).

For purpose of clarity the letter of Notice of Compulsory Retirement (exhibit CV), is hereunder reproduced:

8^th October, 2010.

Mohammed Hadis Auta,

Ag. Chief Inspector,

Sharia Courts Division,

Damaturu.s

NOTICE OF COMPULSORY RETIREMENT

The Yobe State Judicial Service Commission at its 94^th General meeting held on 7^th of October, 2010 has considered the report of the panel of investigation set-of to look into the allegation of misconduct levelled against you.

The Commission has eventually found you wanting and consequently retired you from the services of the Yobe State Judiciary with immediate effect.

Please accept our sympathy.

Umar A. Kachallah

Secretary

The letter stated that the retirement of the claimant was based on the fact that the defendant “has considered the report of the panel of investigation of misconduct levelled against you” and that the defendant eventually “found you wanting”

It is therefore important to carefully look at the letter inviting the claimant to appear before theafore said investigating panel (exhibit CP); which letter is hereunder reproduced.

13^th August, 2010.

Mohammed Hadis Atu

Chief Inspector Area Court

RE: INVESTIGATION PENAL

I am directed by the Chairman Investigation Penal to write and invite you to appear before it on Monday the 16^th August, 2010 at the Chief Magistrate Court I Damaturu by 10:00am.

I have attached the photocopy of verification of expenditure letter for your perusal.

Musa Kachalla Kyari

Member/ Secretary

From the wordings and contents of the letter, it is very clear that the claimant was not accused of any misconduct. Even the further letter of August 9, 2010(exhibit CQ) did not accuse the claimant of any misconduct rather the investigation was for the “purpose of this verification only”. The question to ask here therefore is which panel of investigation was “set-up to look into the misconduct levelled against you” the report of which was relied upon by the defendant to retire the claimant compulsorily. Certainly that is beyond the panel set as in exhibit CP. In the absence of any accusation against the claimant before the said panel, I hold that he was denied fair hearing see Adeniyi v Governing Council, Yaba Tech. (1993) 6 NWLR 426 (Pt. 300) 467.

Even at that, the report of the said panel (exhibit CW) never recommended the retirement or punishment of the claimant.

Worse still, the document purportedly verified (exhibit CR) is a mere sheet of paper with written figures titled “Fund Disbursement for the Month of June, 2010 Over Head Cost”; it did not disclose its source, origin or author. It was not dated and it was not signed by anybody. It is settled that an undated document that is not signed has no worth or value in law, see Ofem v. Presbyterian Church of Nigeria (2012) All FWLR (Pt.647) 801 at 813 paragraph A, see also Global Soaps & Detergents Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047. Consequently, I find and hold that the paper purportedly verified (exhibit CR) titled “Fund Disbursement for the Month of June, 2010 Over Head Cost”; is a worthless piece of paper not worthy of any verification.

Furthermore, the claimant was already the substantive Chief Registrar of the Sharia Court of Appeal when he was unilaterally and without any reason or justification demoted by way of designation to the position of Acting Chief Registrar. He was further referred to as Acting Director to the Sharia Court, and later Chief Inspector; all show clearly that the defendant was in a hurry to get rid of the claimant from its employment. It is not difficult therefore to find and I hereby find that the said verification panel was merely set up for the single purpose of removing or getting rid of the claimant howsoever and I so find.

For the reasons adduced above, I am inclined to nullify the compulsory retirement of the claimant and I hereby nullify it and declare same as null and void.

Claims e, f, h and I deal with employment of the claimant as statutory, order for reinstatement, payment of salaries, emolument and entitlements.

I have already held that it is not in dispute between the parties that the employment of the claimant was guided by statutory flavor. There is also no dispute that the employment of the claimant was protected and guided by the 1999 constitution as variously amended and further guided by the Yobe State Judiciary Scheme/Conditions of Service of May 2007 (Exhibit CX). By the provision of section 2.4.1 of the said Scheme/Conditions of Service; a Chief Registrar once appointed shall continue to serve in “such capacity until he retires, resigns, appointed to high rank’ or removed by “the Judicial Service Commission”. I have nullified the removal of the claimant in this judgment above; consequently, these claims have succeeded and the claimant is entitled to be reinstated into his employment as the Chief Registrar of the Sharia Court of Appeal of Yobe state forthwith. He is also entitled to the payment of his full salaries, emolument and entitlements from the date of his said purported retirement and I so hold.

Claims k and I deal with general damages and cost. Having held that the claimant is entitled to his salaries, emoluments and entitlements the claim for general damages is refused.

In sum, I make the following orders:

1) The compulsory retirement of the claimant as conveyed by the notice of compulsory retirement issued by the Defendant to the claimant dated 8^th October, 2010 is declared null, void and hereby set aside.

2) The claimant is hereby reinstated back to his employment as the Chief Registrar of Yobe State Sharia Court of Appeal.

3) The defendant shall pay the claimant all his salaries, emolument and entitlements from the month of October 2010 to the date of this judgment and subsequently pay him his salaries, emolument and entitlements as they fall due as a full staff of the defendant.

4) The defendant shall pay the claimant the sum of N300000 being the cost of this suit.

Judgment is entered accordingly.

…………………………………..

Hon. Justice K.I. Amadi, Ph.D.

(Judge)