THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISON
HOLDEN AT ABUJA
BEFORE: HONORABLE MR. JUSTICE SANUSI KADO
20TH DAY OF SEPTEMBER 2019 NICN/ABJ/274/2017
Papu Ntakai …………………………………………………………… Claimant
The Police Service Commission ………………………………… Defendant.
B. C. Yerima, Esq; For the claimant.
1. The Claimant is vide his complaint and statement of facts, seeking for:-
a. A declaration that the purported dismissal of the claimant by the defendant is unlawful, done mala fide and illegally imposed on him in breach of his terms of employment and the constitution of the Federal Republic of Nigeria as amended.
b. A declaration that the claimant is still and remains an employee of the defendant.
c. An order reinstating the claimant back to the service of the defendant.
2. The claimant testified in proof of his case as CW. CW stated that he was a police officer in the service of the Nigeria Police Force. CW stated that before his dismissal from service he was an Assistant Superintendent of Police (ASP) with Force No. 42078 working with the Nigeria Police Force, Plateau State command Jos. Before his transfer to Plateau State Command he was working with the Nigeria Police Headquarters Abuja in the Federal Highway Patrol Unit, where he was heading a patrol team. It was after his transfer that the incident leading to his dismissal from service happened by which he was maliciously victimized by the then commissioner that illegal issued him with a query letter leading to his dismissal by the defendant acting through the inspector general of police. After he has handed over his arms and ammunitions and the vehicle while with police on duty was attacked by hoodlums and got it burnt on the highway in his absence. CW stated that he was dismissed in 2006 without the defendant complying with the procedure under the terms of his employment, the constitution of the Federal Republic of Nigeria and the Public Service Rules.
3. According to the claimant he was enlisted into the Nigeria Police Force as a cadet inspector and rose to the rank of Assistant Superintendent of Police earning an annual/monthly salary of N…. (sic) that by the act of the defendant he has suffered damages and continue to suffer losses of salary earnings since his dismissal.
THE SUBMISSION OF THE CLAIMANT.
4. The counsel for the claimant formulated lone issue for determination, to wit;
a. ‘’Whether in the absence of any defence, the claimant has by the evidence before the court proved his claim against the defendant.’’
5. It is contended by counsel that the claimant’s claim as can be gleaned from the statement of facts disclosing the cause of action is over his unlawful and illegal dismissal from the service of the Nigeria Police Force by the defendant. By the exhibits tendered, particularly the query letter dated 30/7/2004 and the dismissal letter dated 4/8/2006, it is crystal clear that the reasons for the dismissal of the claimant as stated and relied upon by the defendant are threefold. One for performance of unlawful duty and embarking on unauthorised journey. Two, for disobedience to lawful order, and three, for causing wilful damage to force vehicle which are all referred to as acts of misconduct as stated in the dismissal letter.
6. Counsel contended that it is settled that where reason for dismissal or supplied by employer for a dismissal of an employee as in the instant case, the employer must justify that reason for the dismissal. In support of this proposition of law counsel referred to the case of ANGEL SHIPPING & DYEING LTD VS AJAH (2000) 13 NWLR (PT.685) 352 @ 361.
7. Counsel also contended that where an employee complains to the court of his dismissal on the grounds of misconduct as in the instant case, what the court is expected to look out for; first is whether the dismissal was in accordance with the principles of audialteramparterm which imposes a duty upon the employer to act fairly has been observed. This is the decision of the Supreme Court in the case of A. R. MOMOH VS. CBN (2012) 1 NLLR 48.
8. Counsel submitted that in this case the claimant is a police officer and a public officer whose terms of employment are governed by the provisions of the police Act and the public service rules 2008 as applicable. This made claimant employment with statutory flavour.
9. Counsel referred to section 369 (2) of the Nigeria Police Regulations under the Police Act, which provides,
‘’(2) where a superior officer is charged with any misconduct contrary to the provisions of part xv of these regulations or of chapter 4 of genera orders, the conduct of any disciplinary proceedings shall be in accordance with the rules specified in chapter 4 of the general orders and the competent authority shall be the Nigeria Police Council of the Federation.’’
10. And chapter 4 of the General Orders herein referred to provides; for the officer under inquiry for misconduct to be informed in writing that on a specific day the question of his dismissal shall be brought before the commission or council and he shall be required to appear to defend himself and entitled to bring witnesses in his defence.
11. It is the submission of counsel that the claimant by his rank is a superior officer as defined by section 2 of the Police Act. Therefore any disciplinary action taken against him for misconduct must accord with the provisions of the Act as contained under section 369(2) of the Act, which in this case the defendant failed to comply.
12. Counsel also argued that the claimant by his complaint before the court anchor his claim on breach of the constitution of the Federal Republic of Nigeria, 1999, (as amended) by the defendant in dismissing him from service, when the act alleged leading to his dismissal was done in his absence after his transfer to another command and after handing over all properties in his custody to his former officer without giving him the opportunity to be heard on that. The court is referred to the copies of the record of submissions of vehicle keys and arms and ammunitions tendered before the court. On this counsel referred the court to paragraphs 4, 5, 6 and 7 of the claimant’s witness statement on oath.
13. It is the contention of counsel that where the law or rules provided a particular mode of exercising a statutory power any other mode of exercise of it is excluded and against the spirit of fair hearing. On this contention counsel relied on cases of UNILORIN V ADENIRAN (2007) 6 NWLR (PT.1031) 498, OBIOHA V DEE (1994) 2 NWLR (PT.325) 173. Counsel contended as pleaded in paragraph 8 of the statement of facts, that the claimant was illegally and wrongfully dismissed from service of the defendant, when the procedure leading to his dismissal was not properly followed in breach of his terms of employment and constitutional requirement of fair hearing. More particularly the defendant deliberately despite repeated service of court processes and hearing notices throughout the trial of this suit refused or failed to respond to the claimant’s claim by not filing any defence to justify the reasons for his dismissal as required by law. Counsel urged the court to invoke order 9 rule 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and give judgment for the claimant against the defendant for want of appearance and defence.
14. In concluding his submission counsel urged the court to enter judgment in favour of the claimant since the defendant did not defend as only minimal proof is required. On this counsel relied on the case of BURAMOH V BAMGBOSE (1989) 3 NWLR (Pt.109) 352
15. I have carefully and painstakingly perused the processes filed in this suit. The defendant failed and neglected to file defence to the claimant’s claims. When this action came up for hearing on 9/7/18, the defendant and its counsel were not in court. Consequently hearing commenced in the absence of the defendant. After close of case by the claimant on 9/7/18, the case was adjourned to 26/11/18 for the defendant to appear for defence. As usual the defendant and its counsel did not show up in court. The case was then adjourned to 6/2/18 for adoption of final written address filed by the claimant.
16. However, when the matter was mentioned in court on 6/2/18,and after announcing appearance counsel for the claimant informed the court that the defendant had filed notice of preliminary objection. Counsel requested for a date for hearing of the objection. On 7/3/19, when this suit came up for hearing of the defendant’s preliminary objection,neither the defendant nor the counsel that filed notice of preliminary objection on behalf of the defendant were in court. There was also no reasons were given for theirabsence.
17. In the circumstance, counsel for the claimant applied orally for striking out of the preliminary objection, which the court obliged. The counsel for the claimant adopted his written address on 1/7/19 and the suit adjourned to 16/9/19 for judgment. However, due to unforeseen circumstances court did not sit though the judgment was ready.
18. It is clear that the defendant in this suit had not been serious in defending the action. The defence counsel had never appeared even for once. Apart from filing of preliminary objection which was struck out due to lack of diligent prosecution. The defendant had been consistently absent despite being served with the hearing notices.
19. The claimant sued the defendant before this court seeking a declaration that his purported dismissal by the defendant is unlawful, done mala fide and illegally imposed on him in breach of his terms of employment and the constitution of the Federal Republic of Nigeria as amended; a declaration that the claimant is still and remains an employee of the defendant and an order reinstating the claimant back to the service of the defendant.
20. The counsel for the claimant urged the court to grant the claimant’s reliefs since the defendant has decided not to appear or file defence to the claimant’s action. Counsel contended that the defendant by failing to defend has admitted the claim of the claimant. And that the claimant has discharged the minimal burden of proof imposed on him by the law.
21. From the reliefs being sought by the claimant, they are in the category of declaration and special damages. Consequently, the law requires the claimant to succeed on the strength of his case and not on the weakness of the defence or admission. The claimant is required to prove his case by credible evidence. See Gurara Securities and Finance Limited v. T.I.C. Limited (1998) LPELR-6420 (CA) following NITEL Ltd &Ors v. Ogunbiyi (1992) 7 NWLR (pt.255) at 543.
22. The counsel for the claimant has strenuously placed heavy reliance on the exhibits tendered in the course of the trial. Counsel contended forcefully that the exhibits tendered by the claimant in the course of the trial more particularly exhibits CW1A1-3, and CW1D (letter of dismissal) have clearly establish his case and entitled him to judgment.
23. To my mind the claimant’s suit has brought to the fore the importance of pleadings and evidence in poof of the pleadings. The rule is that every pleading must state facts and not law. So a plaintiff who wishes to prove at the trial that a particular law applies to his case must state the facts which make the law applicable and will not be allowed to pleadconclusions of law.
24. By the decision in UDEGBUNAM V FCDA (2003) LPER SC, it was sated that what can be stated to be the rock solid position of the law with regard to an action by an aggrieved employee on the termination or dismissal from service is that to found his case there is no running away from pleading and proving his contract of service to substantiate his claim. The claimant in the case at hand throughout his pleading has not pleaded facts that will establish his contract of service and conditions of service governing his employment with the defendant. There was also nothing in the evidence put forward by the claimant to establish the contract and terms of the engagement. The claimant has stated that he was enlisted in to the Nigeria Police as a cadet inspector, but there is no evidence of the enlistment.
25. The pleading of the claimant is very scanty without flesh that will enable the court make findings. Without proper pleading, the reliance of breach of fair hearing will not avail the claimant in this case, as the court cannot act in vacuo. This is because in the absence of establishing the contract of service, the court is left without working tools with which it can consider the case as advanced by the employee as to whether or not there was breach. In other words, the breach cannot exist in vacuo and such a situation produces the absence of a condition precedent which cannot be waived being fundamental. See RECTOR KWARA STATE POLYTECHNIC V ADEFILA (2008) ALL FWLR (PT.431) 914.
26. In any event the claimant is enjoined by law when he complains that his employment has been wrongfully or illegally terminated; he has the onus of placing before the court terms of the contract of employment and then go on to prove in what way the said terms were breached by the employer. See OKOMU OIL PALM CO. LTD V ISERHIENRHIEN 2001 3 SC 140, AMODU V AMODE , AJI V CHAD BASIN DEV. AUTHORITY & ANOR 2015 3-4 SC PT.III 1.
27. The entire averments of the claimant’s pleading is skeletal without flesh to cover it, this has made it difficult for this court to make any meaningful headway in finding for the claimant. The pleading is bereft of facts that can prove the claims of the claimant. It is to be remembered that pleading is the bedrock upon which evidence is laid to sustain a claim. A party swims or sinks with his pleading. Pleading whether of claimant or of defendant must be detailed and comprehensive on material facts and not evasive or vague. See AKANDE V ADISA (2012) 15 NWLR (PT.1324) 538. This is because the essence of pleading is to define precisely the issues upon which the case is to be contested. It is to avoid element of surprise by either party. See ABUBAKAR V JOSEPH (2008) 13 NWLR (PT.1104) 307; GEORGE DOMINION FLOUR MILLS LTD (1963) 1 SCNLR 117.
28. By his pleading and evidence the claimant is contending that he was dismissed from service by the defendant not in line with terms and conditions of his engagement. But, he failed to establish his enlistment and promotion to the rank at which he claimed to be as at the time of purported dismissal. In fact the claimant has woefully failed to by his evidence and documents tendered to even establish his dismissal from the service of the defendant.
29. The attempt by the claimant in the written address to show that he was wrongfully dismissed from service of the defendant cannot succeeds the reason being that it is trite law that address of counsel no matter how brilliantly made cannot be substitute for credible evidence. Pleadings without evidence go to no issue. See Ifeta v. SPDC  LPELR-1436(SC);  8 NWLR (Pt. 983) 585. It follows thus that counsel’s submission, no matter how brilliant is no substitute for pleadings and evidence. See Okwejiminor v. Gbakeji&anor  LPELR-2537(SC), Lewis & Peat Ltd v. Akhimen  SC 157 at 160, Niger Construction v. Okugbeni  4 NWLR (Pt. 67) 787 at 792, Igwe v. AICS  8 NWLR (Pt. 363) 459 at 481, SalawuYoye v. Olubode&ors  10 SC 209 at 215, Ajayi v. Total Nigeria Plc  LPELR-20898(SC) and Adam v. Shaibu & ors  LPELR-40179(CA).
30. In order to show that the claimant has not been able to prove his case, I shall consider the efficacy and evidential value of the four exhibits tendered in the course of the trial marked as exhibits CW1A, CW1B, CW1C and CW1D. These documents are all photocopies. They are not originals. They were admitted because there was no opposition. However, their admission cannot be determining factor for the weight to be attached to them by the court. The court has a duty while considering its judgment to do away with inadmissible or wrongly admitted evidence. See BREDERO NIG. LTD V SHYANTOR NIG. LTD (2016) LPELR-40205(CA), THE BRITISH INDIA GENERAL INSURANCE COMPANY NIG. LTD V THAWARDAS (1978) LPELR-3165(SC), OJOKOLOBO ALAMU V (1998) 9 NWLR (PT.576) 225, GUARDIAN NEWSPAPER V REV. AJEH (2011) 10 NWLR (Pt.1256) 57. Equally important is the fact that mere admission of document does not give document evidential value where such ias lacking or absence. See IST CONCEPT ASSOCIATION (NIG) LTD V TROPIC FINANCE & INVESTMENT COMPANY LTD (2014) LPELR-22644(CA),
31. Exhibit CW1A is a letter query issued to the claimant. This means that the original is with the claimant, it is in his custody. There is nowhere the claimant in the evidence before the court where it was shown that exhibit CW1 has been lost or could not be found. The law requires that for a document to be admissible and have evidential value it has to be the original unless it falls within the exception stated in section 89 of the Evidence Act 2011. This document therefore is not to be accorded evidential value and I hereby discountenance it in its entirety.
32. For exhibit CW1B it is a letter of appeal this presupposes that the document being in custody of public officer is a public document for its proof the original has to be produced or in its absence a certified true copy in line with section 89 of the Evidence Act. In the circumstance exhibit CW1B is hereby discountenance for having no evidential value. Even if exhibit B is to be taken to be admissible all it can do is to show that an appeal was written, but cannot establish the contents contained therein.
34. For exhibit CWD is a photocopy of letter of dismissal. Again like the other three exhibits since the letter was addressed to the claimant the claimant is therefore in the custody of the original. The claimant has not by the evidence before the court established the whereabouts of the original. Exhibit CD1D also has no evidential value and is hereby discountenanced for not having evidential value.
35. Having discountenanced all the four exhibits tendered before the court by the claimant there is nothing to prove the bare pleading of the claimant to entitled him to judgment. This means that the claimant has failed to prove his claims against the defendant. Therefore, the claimant’s suit lacks merit and is hereby dismissed.