IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 21ST DAY OF FEBRUARY, 2020
SUIT NO: NICN/MKD/22/2017
BETWEEN:
AGBO OMABA OGBO………………………………….CLAIMANT
AND
1. CIVIL SERVICE COMMISSION BENUE STATE
2. GOVERNOR OF BENUE STATE…………………………………………DEFENDANTS
3. THE ATTORNEY GENERAL OF BENUE STATE
REPRESENTATION:
Claimant present.
P.O. Onah with M.J. Mamafat for the Claimant.
E.M. Kyaana for the Defendant.
JUDGMENT
By way of complaint filed on 27/03/2017, the claimant instituted this action against the Defendants and sought for the following reliefs:
"1. Declaration that the claimant’s compulsory retirement from the Civil service of Benue state conveyed by letter reference No. SC.546/1/207 dated 5th January, 2017, without affording the claimant fair hearing is illegal, in breach of the procedure laid down by the Benue State Civil Service Rules, unconstitutional and the same is null and void in the circumstances of the case.
2. Declaration that the claimant was a witness [CW 51] to the Judicial Commission of Enquiry into the Funds Accruing/Received and the Utilization of Benue State Government Funds/Assets, 2015, set up by the Government of Benue State, at the instance of the Commission.
3. Declaration that the claimant was not accused of any acts of wrongdoing, any involvement in activities and practices of financial misconduct, recklessness and embezzlement which contravenes any rules of the Benue State Civil Service and which brought disrepute to the office of the Accountant General and the Government of Benue State, at the course of carrying out the duties assigned to him and given opportunity to defend himself of, during his appearance as witness to the Commission before the Commission, for which the commission could have validly indicted him and the purported indictment, referred to in the Accountant General’s Query letter of 18th March, 2016 and the Defendants’ letter reference No. SC.5 546/1/207 dated 5th January, 2017 constitute:
a. A breach of the claimant’s right to fair hearing under Section36(1) of the Constitution of the Federal Republic of Nigeria, null and void.
b. The purported indictment cannot therefore constitute a valid reason for the Accountant General’s query letter under reference and the purported compulsory retirement of the claimant as contained in the Defendants’ letter to that effect dated reference No. SC.546/1/207 dated 5th January, 2017.
4. Declaration that the Report of the Judicial Commission of Enquiry into the Funds Accruing/Received and Utilization of Benue State Government Funds/Assets, 2015, never indicted the claimant for fraud and or for any wrong doing and any conduct contrary to the Civil Service Rules of Benue State, but only recommended at page 59 that the claimant should not be assigned any responsibility involving finance and the same cannot form the basis for the purported compulsory retirement of the claimant as did the defendants in their letter reference No. SC.546/1/207 dated 5th January, 2017.
5. Declaration that the purported indictment of the claimant by the report of the Judicial Commission of Enquiry into the Funds Accruing/Received and the Utilization of Benue State Government Funds/Assets, 2015 said to be contained on page 59 of the report and Government Views and Decisions [White Paper] on the Report contained in paragraph 11.24 referred to as forming the basis for the compulsory retirement of claimant by defendants’ letter reference No. AC.546/1/207 dated 5th January, 2017, cannot be sustained as the same was arrived at in breach of claimant’s right to fair hearing and the same is unconstitutional, null and void.
6. Declaration that the purported indictment of the claimant by the Justice Elizabeth Kpojime’s led Report of the Judicial Commission of Enquiry into the Funds Accruing/Received and the Utilization of Benue State Government Funds/Assets, 2015 and Government Views and Decisions [White Paper] on the Report, if any, referred to in the Defendants’ letter compulsorily retiring the claimant from service of government of Benue State, as basis for the retirement , was arrived at in breach of the claimant’s constitutional right to fair hearing under section 36 [1] of the 1999 Constitution of Nigeria, as amended and the same cannot ground the purported compulsory retirement of the claimant in the circumstances of this case.
7. Declaration that the Accountant General’s letter of Query to the claimant reference No. S/TRY/632/1/148 dated 18th March, 2016, which accused claimant of involvement “in activities and practices of financial misconduct, recklessness and embezzlement which contravenes the civil service rules and at the same time brought disrepute to the office and the government. [see Justice Kpojime’s Report of February, 2016 for ease of reference]”, was a complete misrepresentation of the Justice Kpojime’s Judicial Commission Report, 2016 and malicious in the circumstances of the case.
8. Declaration that the Accountant General’s letter of query reference No. S/TRY/632/1/148 dated 18th March, 2016, was a floating query which did not accuse claimant of any identifiable offence of misconduct under the Benue State Civil Service Rules, involvement of claimant in activities and practices of financial misconduct, recklessness and embezzlement which contravenes any specific Civil Service Rules of Benue State and which brought disrepute to the office of the Accountant General of Benue State and the Government of Benue State related to any specific and identified portion of the Justice Kpojime’s report of February, 2016 to the claimant.
9. Declaration that the claimant in his response to the query dated 24thMarch, sufficiently answered the Accountant General’s floating query and showed reasons why disciplinary action should not be taken against him.
10. Declaration that all actions taken against the claimant by the defendants, including the suspensions without pay, query reference No. S/TRY/632/1/148 dated 18th March, 2016 and letter reference No. SC.546/1/207 dated 5th January, 2017 purportedly compulsorily retiring the claimant from the Benue State Civil Service, found on the Report of the Judicial Commission of Enquiry into the Funds Accruing/Received and the Utilization of Benue State Government Funds/Assets, 2015 and the Government views and decisions [White Paper] on the Report contained in paragraph 11.24 having been taken in violation of the constitutional right of the claimant to fair hearing remain null and void.
11. Declaration that the claimant is entitled to remain in the service of the defendants until he attains the age of 60 years and or clocks 35 years in service except removed in accordance with the terms of his employment.
12. Declaration that the claimant is still in the employment of the defendant in his position of Principal Accountant on Grade Level 12/4 and entitled to his salaries and allowances, promotions and all other rights thereof.
13. Order of the court nullifying the 1st Defendant’s letter reference No. SC.546/1/207 dated 5th January, 2017, which purported to have compulsorily retired the claimant from the service of the Benue State Government.
14. Order of the court nullifying the Report and Recommendations of the Judicial and Commission of Enquiry into the Funds Accruing /Received and the Utilization of Benue State Government Funds/Assets, 2015 and Government Views and Decisions [White Paper] on the Report contained in paragraph 11.24 as it concerns the claimant.
15. Order of the court nullifying all actions taken against the claimant by the defendants, including the suspensions without pay, query and letter of the purported compulsory retirement of the claimant, found on the Report and Recommendations of the Judicial Commission of Enquiry into the Funds Accruing/Received and the Utilization of Benue State Government Funds/Assets, 2015 and the Government Views and Decisions [White Paper] on the Report contained in paragraph 11.24, as it concerns the claimant.
16. Order of perpetual injunction restraining the Defendants from carrying out/implementing the Government Views and Decisions contained in paragraphs 11.24 of its Views and Decisions contained in paragraph 11.24 of its Views and Decision on the Report of the Judicial Commission of Enquiry into the Funds Accruing/Received and Utilization of Benue State Funds/Assets, 2015 as it concerns the claimant.
17. Order of the court directing the defendants to compute and pay the claimant all his outstanding salaries and allowances with effect from 21st March, 2016, the time of the claimant’s purported suspension without pay and to date and subsequently along with the other staff of the defendants.
Or alternatively:
Special Damages in the sum of N34,853,361.59 [Thirty –Four Million Eight Hundred and Fifty-Three Thousand, Three Hundred and Sixty –One Naira, Fifty –Nine Kobo] only representing claimants salaries and allowances for the period April, 2016 to November, 2034 which includes the sum of N925,260.00 [Nine Hundred and Fifteen Thousand Two Hundred and Sixty Naira] pending promotional arrears for the period January, 2015 to February, 2016 and gratuity in the sum of N6,475,767.48.
18. General Damages of Fifty Million Naira [N50,000,000.00].
19. 10% interest on the judgment debt from the date of the judgment until the entire judgment debt is paid.”
The facts of the claimant’s case against the defendants as it features in the statement of facts filed in support of the complaint are; the claimant was before his compulsory retirement by the Defendants a Principal Accountant on Grade Level 12/4, attached to the Accountant General’s Office. The claimant maintains that throughout the period of his service with the Defendants he never received a query.
That he was one of the One Hundred and Eight (108) people called as witnesses by the Justice Elizabeth Kpojime Judicial Commission of Enquiry into the Funds Accruing/Received and Utilization of Benue State Funds/Assets, 2015. To the claimant he was not accused of any wrong doing for which he was given any opportunity to defend. The claimant alleged that the 1st Defendant through a letter dated 21st March, 2016 wrote to communicate his suspension from office with effect from 21st March, 2016, without pay. The suspension was allegedly based on the alleged indictment of the claimant by the Report of the Justice Kpojime Commission of Enquiry. The claimant expressed the view that Query letter reference No. S/TRY/632/1/148dated 18/03/2016 served on him on 23/03/2016 from the office of the Accountant General of Benue State was at large and did not make specific allegations of wrong doing against him. The claimant however answered the said query and was subsequently suspended from office, effective 21/03/2016, without pay by another letter dated 21/03/2016. That the Defendants continued to extend the claimant’s suspension until he was compulsorily retired by letter dated 5/01/2017, with effect from 21/03/2016. The compulsory retirement was founded on the Commission’s indictment of the claimant for fraud while serving as Principal Accountant at the Bureau of Local Government and Chieftaincy Affairs. The claimant has expressed the view that he was never accused of any wrong doing and neither was he charged for any offence before the Commission. The claimant maintained that he only served as a witness for the Commission. The claimant stated that at the conclusion of the commission’s assignment, it recommended that the claimant along with other named persons should not be assigned responsibility in government involving finance. That he was not indicted by the Justice Elizabeth Kpojime Judicial Commission of Enquiry.
That the Government however rejected the recommendations of the Commission and instead opted to dismiss the claimant along with other persons from service. The claimant is of the opinion that the decision to compulsorily dismiss him from service is not based on any indictment by the Report of the commission. He stated that it is arbitrary and unconstitutional. That the decision was taken in violation of his right to fair hearing. The claimant has cited the actions of the defendants against him as malicious and lacking good faith. He further pointed out that he had accounted for all funds as required of him.
The claimant contended that he was entitled to his salaries and allowances from the period of suspension without pay till he retires statutorily.
The Defendants’ joint statement of defence to the claim was filed on 3/10/2017. The Defendants stated that when the claimant appeared before the Commission of enquiry, he could not supply relevant information and documents on some cash withdrawals he made as requested in the invitation letter extended to him. That there was evidence before the Commission that indicted the claimant. That when the claimant was issued a query, he unsatisfactory responded to the query. The Defendants contended that they have the powers under the terms and conditions governing the claimant's contract of employment to compulsorily retire him without being convicted by a court of law where he engaged in act of misconduct.
Hearing commenced on 12/03/2019 with the claimant as CW1 adopting his sworn statement of 27/03/2017 as his evidence in chief. CW1 identified document No. 14 and 20 of the frontloaded documents as being in the custody of the Defendants. The CW1 tender the documents already frontloaded and same were admitted and serially marked Exhibits AOO1 – AOO21.
The CW1 was cross examined and discharged without re-examination.
The matter came up for Defence on 3/07/2019 with Andrew Amee, a Civil Servant taking the witness stand to testify for the Defendants as DW1. The DW1 adopted his sworn statement on oath of 03/10/2017 as his evidence in chief before the court. Thereafter the DW1 was cross examined. During cross examination the Government White Paper of February 2016 was tendered through the DW1 and admitted in evidence and marked as Exhibit AOO22. DW1 was discharged at the end of cross examination as there was no re-examination.
Parties adopted their final written addresses at the close of their case.
DEFENDANTS` SUBMISSION
The Defendants’ final written address dated 4/11/2019 was filed on 5/11/2019. In it, counsel sought for the determination of the issue: "Whether the claimant has proved his case as required by law to enable the court to grant the claimant his prayer."
The Defendants incorporated a Preliminary Objection in their address. Two (2) preliminary questions were put forward for determination of the court, to wit:
"1. Whether or not the claimant's/respondent’s action is statute barred by virtue of Section 2 of the Public Officers Protection Law, Cap 140, Revised Laws of Benue State 2004.
2. Whether this Honourable court has the jurisdiction to entertain and determine this suit which is founded on the findings and recommendations of the Judicial Commission of Inquiry into the funds accruing/received and the utilization of Benue State Funds/Assets 2015 as well as the Benue State Government’s views and decisions on the Commission’s Report."
On issue one, counsel relied on the provision of Section 2 of the Public Officers Protection Law, Cap 140, Revised Laws of Benue State 2004 to argue that the claimant’s action was filed outside of the time limit prescribed in the statute hence, depriving the court of jurisdiction to entertain the matter. Expressing the view that the decisions upon which this suit is founded occurred in January/February 2016 , but the suit was commenced on 22/03/2017, being fourteen (14) months after the government’s decision on the Commission’s report. Learned counsel for the Defendants cited a number of case law authorities to buttress the point, amongst which are: IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) 13 NWLR (PT.584)PG 1; IBRAHIM V. LAWAL (2015)17 NWLR(PT.1489) 490 @ 522-523, A-D. In submission, counsel urged the court to find that the time limit set by law for filing the claimant’s action had been exceeded, as such; issue 1 should be resolved in favour of the Defendants.
On issue two, while citing Section 254 C1(a)-(i) of the 1999 Constitution (as amended) counsel urged the court to find that the suit is not one that the court is vested with requisite jurisdiction to determine. Counsel also cited case law in support of their submission.
As regards the substantive matter and claim for salaries and allowances, counsel argued that the claimant had failed to place before the court evidence to enable the court get a bearing as to the actual amount the claimant is entitled to. In submission, counsel therefore urged the court to deny the claims and calculations as they are imaginary.
In all, counsel contended that the claimant had failed to prove his case to the standard required by law hence, counsel urged the court to dismiss the suit of the claimant for lacking merit.
CLAIMANT`S SUBMISSION
The Claimant’s final address was filed on 18/11/2019.
Counsel first addressed the preliminary issues raised by the Defendants. On the issue of whether this Honourable Court is vested with the requisite jurisdiction to determine the matter, counsel contended that the claim of the claimant being one of wrongful retirement from service is not statute barred and is within the purview of the matters that this court can competently exercise jurisdiction over. Learned counsel for the claimant relied on the provisions of Section 254 C of the Constitution and Section 17(1)and(2)of the National Industrial Court Act, 2006.
On the substantive matter, counsel posed the issue: "Whether the claimant established his case to be entitled to the judgment of the court."Relying extensively on the body of evidence before the court, counsel argued that the Defendant’s actions did not conform with the recommendations of the commission, neither did they conform with the Benue State Public Service Rules. Counsel pointed out that the Defendants acted arbitrarily and maliciously against the Claimant. Counsel further contended that even if there Were allegations of indictment of the claimant for fraud, the Defendants still lacked the power to retire the claimant compulsorily without hearing him first. Counsel put forward vast and extensive argument and finally urged the court to find that the claimant had discharged the burden of proof as required of him by law to warrant the grant of the reliefs sought.
OPINION OF THE COURT
I have gone through the processes filed by the parties, the Exhibits admitted and the respective issues, arguments and submissions of the counsel to the parties. Counsel to the defendants raised two preliminary issues in their written address which were distilled from the NPO dated and filed on 23/11/2017.The issues are:
"1. Whether or not the claimant`s/respondent’s action is statute barred by virtue of Section 2 of the Public Officers Protection Law, Cap140, Revised Laws of Benue State 2004.
2. Whether this Honourable court has the jurisdiction to entertain and determine this suit which is founded on the findings and recommendations of the Judicial Commission of Inquiry into the funds accruing/received and the utilization of Benue State Funds/Assets 2015 as well as the Benue State Government’s views and decisions on the Commission’s Report."
It was the submission of the defendants that the defendants are Public Officers within the meaning of Section 2 of the Public Officers Protection Law of Benue State and that the act complained of by the claimant was done in execution of the law, public duty and authority. Defendants stated that the record of proceedings and report of the commission of enquiry was dated January, 2016 and the white paper containing Government's views and decisions was dated February, 2016. However, the claimant only asked for the nullification of the recommendations of the commission of enquiry and the decision of the Government in his paragraph 31 (13) of his Statement of Facts when he filed this suit on 22/3/2017 which is outside the 3 months period stipulated by the law.
It is the law that a case or action is said to be statute barred when or if it is commenced or initiated after the period of time limited by statute within which it can be brought, had expired or lapsed. Where a statute has prescribed and limited the period of time within which an action or case may be filed by a person in court of law, any action filed outside or after the time prescribed had ended, such a case or action would be in contravention of the provisions of the statute and consequently be barred by the statute.
In any event, I consider it necessary to quickly state that In the recent decision of the Supreme Court in the case of National Revenue Mobilization Allocation and Fiscal Commission V. Johnson (2019) 2 NWLR (pt.1656) 247, the court held per Ariwoola JSC thus;…“ I hold that the learned Justices of the court below are right in holding that the Appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the Respondents”.
The case of National Revenue Mobilization Allocation and Fiscal Commission (supra) demolished and shut out the argument of the Defendants that this action is statute barred by virtue of Section 2 of the Public Officers Protection Law of Benue State.
In the light of the foregoing, I find that the 1st leg of the Preliminary Objection of the defendants lacks merit and is accordingly dismissed. Needless to say that the provisions of Section 2(a) of Public Officers Protection Law of Benue State is in pari materia with the provisions of the Public Officers Protection Act upon which the supreme court handed down its decision.
On the second issue of the Preliminary Objection, It was the submission of the Defendants that the claimant's principal complaint in this suit is on the proceedings and report of the commission of enquiry as well as the white paper and the rest of the claims are founded on the principal complaint. Defendants submitted that the supervisory jurisdiction of this Court over the administrative actions of the commission of enquiry is outside the ambit of the jurisdiction of this Court. The Defendants had cited the cases of Alh. Shehu Abdul Gafar V. The Govt. Of Kwara State & 2 Ors (2007) (CHR) 1, Tukur V. Gongola State (1989) NWLR (Pt.117) 517 and AIG-Imuokhede V. UBA (2015) NWLR (Pt.1462) 399 to support his assertion.
By virtue of Section 17 of the National Industrial Court Act, 2006 and Order 48 Rule 10 of the 2017 Rules of this Court, I am unable to agree with the Defendants' counsel that this court does not have jurisdiction to entertain this suit because the suit is inter woven with the recommendations of the commission of enquiry. I hold the view that in as long as the issue of employment of the claimant is affected, then, this Court has jurisdiction to look into any recommendation that will affect the right of an employee.
I also agree with the claimant that the cases cited by the Defendants to press home their point are distinguishable because they are cases filed under the Fundamental Human Rights Proceedings where the court had no jurisdiction on the main claim. In the case of Tukur V. Governor of Gongola State (supra), the applicant's case was dismissed because he filed a Fundamental Human Rights action at the Federal High Court while his principal claim is his deposition as Emir of Muri which is outside the scope of the jurisdiction of the Federal High Court.
I see nothing that says that a Fundamental Right breach or a supervisory jurisdiction of court cannot be litigated through the normal process of a writ of summons or complaint in as long the subject matter is within ambit of the court's jurisdiction. See University of Ilorin & ANOR. V. Idowu Oluwadare [2006] LPELR-3417 (SC) ; [2006] 14 NWLR (Pt.1000) 751 ; [2006]6-7 SC 154 and NUT & ORS V. COSST & ORS [2005] LPELR-5953 (CA) ; [2006] NWLR (Pt.974) 590. The idea of the Fundamental Rights (Enforcement Procedure) Rules and prerogative order of certiorari is to lay down a speedier process for litigating Fundamental Rights breaches or breach of the principle of natural justice, not that it is the only process through which such breaches must be litigated. The Court of Appeal in SSAUTHRIAI V.Olotu [2016] 14NWLR (Pt.1531) 8 acknowledged Section 254 c (1) (d) of the 1999 Constitution, which provides that this Court shall have jurisdiction over matters “relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any Employment, Labour, Industrial Relations, Trade Unionism, Employer’s Association or any other matter which the Court has jurisdiction to hear and determine”.
I do not accordingly agree with the defendants that this Court has no jurisdiction over the instant case. I hold the view that this Court has the requisite jurisdiction to hear and determine this suit given Section 254 c(1) of the 1999 Constitution, the matter in dispute being an employment matter. Infact, challenging the recommendation and report of the commission of Inquiry is not even the main claim of the claimant. I also hold the view that determination of the validity or otherwise of the compulsory retirement of the claimant can be done without necessarily asking the court to review the recommendations and report of Justice Kpojime Commission of Inquiry.
Consequently, the Notice Of Preliminary Objection dated and filed by the defendants on the 23/11/017 is hereby overruled and dismissed.
For the substantive case, the issues raised by the parties look similar in substance but only differ in words. They intend to convey the same message which is whether the claimant has proved his case to be entitled to his claim.
The facts of the claimant’s case against the defendants as it features in the Statement of Facts are that he was prior to the instant action a Principal Accountant on Grade Level 12/4, attached to the Accountant General’s Office. The claimant maintains that through out the period of his service with the Defendants he never received a query.
That he was one of the One Hundred and Eight (108) people called as witnesses by the Justice Elizabeth Kpojime Judicial Commission of Enquiry into the Funds Accruing/Received and Utilization of Benue State Funds/Assets,2015.That he was not accused of any wrong doing for which he was given any opportunity to defend. The claimant alleged that the 1st Defendant through a letter dated 21st March, 2016 wrote to communicate his suspension from office with effect from 21stMarch, 2016, without pay. The suspension was allegedly based on the alleged indictment of the claimant by the Report of the Justice Kpojime Commission of Enquiry. The claimant expressed the view that the Query letter reference No. S/TRY/632/1/148 dated 18/03/2016 served on him on 23/03/2016 from the office of the Accountant General of Benue State was at large and did not make specific allegations of wrong doing against him. That he answered the said query and was subsequently suspended from office, effective 21/03/2016, without pay by another letter dated 21/03/2016. That the Defendants continued to extend the claimant’s suspension until he was compulsorily retired by a letter dated 5/01/2017, with effect from 21/03/2016. That the compulasory retirement was founded on the Commission’s indictment of the claimant for fraud while serving as Principal Accountant at the Bureau of Local Government and Chieftaincy Affairs. The claimant has expressed the view that he was never accused of any wrong doing nor was he charged for any offence before the Commission. The claimant maintained that he only served as a witness for the Commission. The claimant stated that at the conclusion of the commission’s assignment, it recommended that the claimant along with other named persons should not be assigned responsibility in government involving finance but he was not indicted by the Justice Elizabeth Kpojime Judicial Commission of Enquiry.
That contrary to the recommendations of the Commission of enquiry, the Government rejected the recommendations and instead opted to dismiss the claimant along with other persons from service. The claimant is of the opinion that the decision to dismiss him from service is not based on any indictment by the Report of the commission. He stated that it is arbitrary and unconstitutional. That the decision was taken in violation of his right to fair hearing. The claimant has cited the actions of the defendants against him as malicious and lacking good faith. He further pointed out that he had accounted for all funds as required of him.
From the facts and circumstances of this, I consider it pertinent to make the following observations; That the Claimant was invited by the commission of enquiry as a witness; That the Claimant was indicted by the commission of enquiry to the extent that he should not be assigned any task involving finance; That the Government of Benue State rejected the recommendation of the commission of enquiry but directed that the Claimant be dismissed from service; That four suspension letters (Exhibits AOO11,13, 15 and 16 were given to the claimant. That the Government of Benue State through the office of the Head of Service issued the claimant a query(Exhibit AOO 12) on his indictment by the commission; That the Claimant answered the query via a letter (Exhibit AOO 14) dated 24/3/2016. That the Claimant was compulsorily retired based on his indictment for fraud in the Justice Kpojime Commission of enquiry while serving as Principal Accountant at Bureau of Local Government and Chieftaincy Affairs.
It is imperative in order to determine the instant case to refer to the documents that regulate the relationship between the parties. Exhibit AOO 1and 2 show that the appointment of the claimant is permanent and pensionable. While Exhibits AOO 11,13, 15 and 16 are letters of suspension. Exhibit AOO 12 is the letter of query and Exhibit AOO 14 is the answer to the query. ExhibitsAOO 20,21 and 22 are proceedings of the commission of enquiry and the Government's views and decisions on the report of the commission of enquiry respectively. Meanwhile Exhibit A00 17 is the letter of compulsory retirement. I think these include the documents that an employee in law who complains that his employment has been brought to an end must found his claim on and show in what manner the wrong was done. They constitute the bedrock of his case. See Idoniboye-Obu V.NNPC (2003) LPELR-1426(SC).
It is evident from Exhibit AOO 2 that the appointment of the claimant is protected by statute. And where the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. In determining what an employment with statutory flavor means, the appellate courts have held several times that it relates to employment in the Public or Civil Service of the Federation, States or Local Governments, or Agencies of Government, including Institutions and Parastatals where in the Civil Service or Public Service Rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin V. Shittu (2012)41 WRN 26. In the case of University of Ilorin V.Abe (2003) FWLR (Pt.164) 267at 278, the Court of Appeal held thus:
"It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavor is to adhere strictly to the procedure laid down in the statute or regulation made there under."
The above posture was followed in the case of New Nigeria Newspapers Ltd v. Atoyebi (2013) LPELR-21489(CA) where the court of appeal said that in an employment with statutory flavor where in procedure for employment and dismissal of employees are clearly spelt, the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination in consistent with the statute is null and void and such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government. See also Osumah V.Edo Broadcasting Service (2005) All FWLR(Pt.253)773at787,Oloruntoba Oju V. Abdulraheem (2009) 26 WRN1; (2009) 13 NWLR (Pt.1157) 83. "Per MBABA,J.C.A.(Pp.16-18, paras.G-C).
Even though Exhibit AOO 20 which is the proceedings and report of the Commission of enquiry only recommended that the Claimant should not be given any job involving finance. However, Exhibit AOO 22 i.e. the Government white paper expressed that the Claimant be dismissed from service. While it is clear that the defendants compulsorily retired the claimant on account of his indictment for fraud, but I consider it apt to refer and consider not only the query and letter of compulsory retirement but the recommendations and report of the commission of enquiry as well as the statement of defence of the defendant in order to determine whether there was justification for the compulsory retirement of the claimant.
Looking at the pleadings before me, after the Government of Benue State issued its white paper (Exhibit AOO21 and 22)the claimant was invited via Exhibit AOO 10 to interface with the members of the 1st defendant. The claimant was then suspended by Exhibit AOO 10 and later issued a query (Exhibit AOO 22). However, there seemed to be no evidence that the Claimant interfaced with members of the 1st defendant to enable him react to the indictment made against him by the Commission of Inquiry. I find that the Claimant never had that interaction with the Civil service Commission at anytime concerning the alleged indictment. DW1 said under cross-examination that they heard from the Claimant at the Civil Service Commission and invited him but he does not have any evidence to that effect. DW1 also said it is not normal in the Civil Service to suspend a staff before giving him query but by Exhibits AOO 11 and 12, the claimant was suspended before he was given query. I find from the evidence of DW1 under cross-examination
It is the law that a Public Officer against whom an allegation of misconduct is laid, cannot be removed without being heard. And where an investigative panel is set up, it is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the employee. An employer must follow the procedure laid down by law and where such procedure is violated, an employer's order of termination would be incorporated and void. See FUT Yola V. Maiwuya (2010) LPELR-9001(CA).
In the case of dismissal or termination of the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, or that the employee accepted that he committed the act after investigation. See FUT Yola V. Maiwuya (supra).
I find it interesting to note that the Claimant was only invited to appear before the Commission of Inquiry as a witness but he found himself indicted for committing a fraud. DW1 said under cross-examination that by paragraph11.2 at page 47 of Exhibit AOO22, the Claimant has not been accused or indicted for fraud or embezzlement. That paragraph 11.2.3 is not an indictment of the claimant.DW1also said that the Claimant was working under his superior officer and the instructions to drop cheque at the Bank was an instruction of a superior officer and it would amount to insubordination for the Claimant to refuse to obey the instructions of his superior officer.
I need to say that had the Defendants interfaced with the claimant to give him a hearing, they would not have taken the decision of his compulsory retirement. The Defendants in Exhibit AOO 11 (the suspension letter) said that it was in accordance with Rule No. 04303 of the Public Service Rules and the interface they had with the claimant on 15/3/2015 that his suspension was approved. However the Defendants did not produce the proceedings of that interface it had with the claimant. I find that there was no that interface.
It is imperative to state that the most important aspect in a disciplinary hearing is that it must be conducted fairly according to the rules. To be able to do this, the employer is entitled to know the nature of the charge against him in order to be able to prepare for his case. He should also be given the opportunity to state his case no matter what the circumstances are. It is not essential that he should be present in person throughout the hearing. See Ntewo V. UCTH(2013)LPELR 20332 (CA).
The Claimant has asked the court in his paragraph 31 (14) of his Statement of Facts for an order of court nullifying the recommendations and report of the Judicial Commission of Enquiry, the government views and decisions in the white paper as it concerns the claimant. However, I need to state that even though the court can by virtue of Section 254 (c) of the 1999 constitution and Section 17of the National Industrial Court Act, 2006 and Order 48 Rule10 of the 2017 Rules of this Court, look into the action of the commission of Inquiry as it relates and concerns the issue of employment of the claimant but since the claimant did not join the Chairman and members of the said commission of Inquiry as parties to this suit, then it would be against the principle of fair hearing for this Court to declare any of their actions as wrongful or otherwise as it affects the claimant's employment. That issue was even addressed by the Ruling of Hon. Justice Andover Kaka'an of the Benue State High Court in Exhibit AOO 19. I must also add that the Ruling of the Benue State HighCourt in ExhibitAOO19 only addressed the issue of suspension and query given to the claimant but the issue of propriety or otherwise of his compulsory retirement was not an issue before the court. On that note, relief 14 of the claimant's claim is refused.
On the whole, the claimant's case succeeds in part and for the avoidance of doubt I make the following declarations and orders as follows;
1. That the suspension of the claimant is nullified and set aside.
2. That the claimant’s compulsory retirement from the civil service of Benue State is unlawful, null and void.
3. That Exhibit AOO 17 (the letter of compulsory retirement dated 5/1/2017 is hereby nullified and set aside.
4. That the Defendants are directed to reinstate the claimant to his
position and rank.
5. That the Defendants are directed to compute and
pay the claimant all his outstanding salaries and
allowances from 21/3/2016 to date.
Judgment is entered accordingly and I make no Order as to cost.
__________ ________________________
HON.JUSTICES.H.DANJIDDA
(PRESIDINGJUDGE)