IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON THURSDAY 8TH DAY OF JULY, 2021
BEFORE HIS LORDSHIP: HON. JUSTICE SINMISOLA O. ADENIYI
SUIT NO: NICN/KD/16/2018
ABDULHAMID NATUJI MOHAMMED…………..CLAIMANT
1. STATE SECURITY SERVICE…….……………}
2. DIRECTOR GENERAL,
STATE SECURITY SERVICE………………….} DEFENDANTS
3. KADUNA STATE DIRECTOR,
STATE SECURITY SERVICE………………….}
J U D G E M E N T
The Claimant commenced the instant action vide a Complaint and Statement of Facts filed on 06/04/2018 wherein he claims against the Defendants the reliefs set out as follows:
1. A Declaration that the decision by the Defendants to determine the Claimant’s employment without following the due process of the law is unlawful, null, void and of no effect whatsoever.
2. A Declaration that the Defendants’ decision to take disciplinary action against the Claimant to determine his employment without giving him the opportunity to make his representation constitutes an infraction of his right to fair hearing, guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria (as amended).
3. An Order directing the Defendants to rescind its decision to dismiss/determine the Claimant’s employment with the Defendants and order his re-instatement to the service and all his salaries, remunerations, promotions, etc paid as and when due.
4. Award of exemplary damages in the sum of N100,000,000.00 (One Hundred Million Naira) only for the abrupt interruption of his service and infliction of hardship on him and members of his family based on an issue that he raised to save the service’s morality and integrity.
5. Cost of filing this suit.
2. For starters, I should remark that this judgement was initially slated for 28th of April, 2021 but was further adjourned till today due to the prolonged industrial strike of the Judiciary Staff Union of Nigeria (JUSUN).
As gleaned from the Statement of Facts, the case of the Claimant in a nutshell, is that as the Head of the Legal Services of the Kaduna State Command of the 1st Defendant, the Claimant was appointed by the 3rd Defendant as a member of a three – man committee that investigated a case involving a female detainee who was alleged to have being impregnated by an officer while in detention. The Claimant’s grievance is that the 3rd Defendant through a query leveled allegations of corrupt practices against him because he (the Claimant) wanted the case of the said officer exposed. The Claimant contends that the 3rd Defendant posted a junior officer to take over his position to punish and victimize him. The Claimant further contends that in spite of his several petitions, the Defendants have stopped his salary and efforts are being made to dismiss him from service without following due process.
3. The Defendants joined issues with the Claimant by their Joint Statement of Defence filed on 10/07/2018. Essentially, the Defendants’ defence is that a prima facie case of gross misconduct and offence against discipline was established against the Claimant; that a recommendation of dismissal of the Claimant was made by the Staff Disciplinary Committee and that the Claimant was lawfully dismissed from service. The Defendants maintained that due process and standard Public Service Rules were observed in the entire disciplinary procedure. The Defendants alleged that the Claimant was reported a deserter and that as a deserter he had effectually and actually dismissed himself from service by his refusal to report for duty.
The Claimant filed a Reply to the Defendants’ Statement of Defence on 15/11/2018. Perhaps, it is pertinent to remark that the Claimant filed a Motion on Notice on 05/02/2019 seeking the leave of Court to amend his Statement of Facts but same was not heard. The said Motion is deemed abandoned.
4. At the plenary trial, the Claimant testified in person and called no witness. He adopted his Witness Depositions on Oath and tendered nine (9) documents in evidence as exhibits to support his case. The case of the Claimant was closed after being cross - examined by the learned Defendants’ counsel.
The Defendants in turn called a sole witness, one Nasiru Safiyanu, a Principal Staff Officer, serving with the 3rd Defendant. In like manner, he adopted his Witness Deposition on Oath and tendered eight (8) documents as exhibits. The witness was equally cross - examined by the learned Claimant’s counsel.
5. Thereafter, parties, through their respective learned counsel filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.
Learned counsel for the Defendants, L. A. Bulus Esq., filed a Motion on Notice seeking for extension of time to file his written address out of time. However, in spite of service of hearing notices, the learned Defendants’ counsel failed to attend Court to move the said application. On 23/03/2021, upon an oral application made by the learned Claimant’s counsel, the Defendants’ address was deemed properly filed and adopted by the Order of Court.
The issues formulated by the Defendants’ learned counsel as having arisen for determination in this suit, are:
a. Whether from the facts and evidence led in this trial, the Claimant has proved his case to enable the grant of the relief sought?
b. Whether the Claimant claims, juxtaposing the facts and evidence given, is not contradictory, frivolous and vexatious action devoid of merit.
In the final address which was adopted on 23/03/2021, the learned counsel for the Claimant, Godwin Ochai Esq., also formulated two issues as having arisen for determination in this suit namely:
a. Whether the Claimant’s appointment is coated (sic) with statutory flavour as to entitle him to the reliefs sought
b. Whether the Plaintiff (sic) has proved his case to entitle him to judgement.
6. On the basis of the pleadings of parties before the Court; and the totality of the evidence placed on record by either side, it is my considered view that the focal issues that call for resolution in this suit; and without prejudice to the issues variously formulated by learned counsel in their written submissions, are:
1. Did the Claimant lead credible evidence in support of the declaratory reliefs and his claim for reinstatement to the service of the 1st Defendant?
2. Upon resolution of issue (1), did the Claimant lawfully establish his entitlements to the reliefs claimed in this suit against the Defendants?
In determining these issues, I had also carefully considered the totality of the written submissions canvassed in the written final addresses and the Court shall endeavour to make specific reference to arguments canvassed by respective learned counsel in their final submissions as it is considered needful in the course of this judgment.
I shall proceed to take both issues together.
7. By my understanding of the totality of the case of the Claimant, it seems to me that the basic, essential and relevant facts upon which the Claimant has predicated his claim could be enumerated as follows:
1. That he was employed by the 1st Defendant on 11/11/1991 and was later posted as the Head of Legal Services of the Kaduna State Command in 2015.
2. That he was appointed by the 3rd Defendant as a member of a three – man committee that investigated a case involving, one Aisha Jibrin, a female detainee who was alleged to have being impregnated by an officer, one Usman Zaki while in detention.
3. That in a bid to cover up the alleged illicit act by the said Usman Zaki, the 3rd Defendant conspired with others to abort Aisha’s pregnancy.
4. That Claimant alleged that because he (the Claimant) wanted the matter exposed, the 3rd Defendant levelled trumped up allegation of corrupt practices against him through a query.
5. That he made allegation of breach of his fundamental right to fair hearing in his reply to the query.
6. That apart from threats to his life and unlawful detention, an officer junior in rank was posted to take over his office to punish and victimize him.
7. That he petitioned the 2nd Defendant to report the illicit activities at the Kaduna Command and he personally interviewed the 1st Defendant’s Director of Administration, Alhaji Muhammad Sani Lawal, who promised to investigate the case.
8. That his salary has been stopped by the Defendants since March 2018.
9. That this action was instituted because one Aisha Gangas, a member of staff of the 3rd Defendant, had called him to collect his letter of dismissal.
10. That his employment was governed by the Federal Public Service Condition and the SSS Service Circulars and Regulations.
11. That contrary to the laws and regulations guiding his appointment, the Defendants are taking steps to dismiss him without setting up a Disciplinary Committee to investigate allegations levelled against him.
8. To further support his case, the Claimant tendered in evidence, the following documents:
i. Letter of appointment dated 1st July, 1992 – Exhibit C1.
ii. Query dated 25th September, 2017 and Reply to Query dated 28th September, 2017 – Exhibits C2 and C3.
iii. Letters captioned “Victimization, Degradation and Humiliation of Service Lawyer dated 10/01/2018, 23/01/2018 and 06/02/2018 written to the Director General, State Security Service – Exhibits C4, C4A and C4B respectively.
iv. Delivery notes of DHL Courier Service dated 11/01/2018, 23/01/2018 and 07/02/2018 – Exhibits C5, C5A and C5B respectively.
9. While answering questions under cross - examination, the Claimant testified further that he was still in the service of the 1st Defendant and that this action was instituted on the premise that he has been dismissed. The Claimant further testified under cross – examination that the last day at his duty post was on 18/01/2018.
9. The defence put forward by DW1, as it is material to the issues under resolution is that a three – man Investigative Committee was set up by the 3rd Defendant to investigate an alleged case of sexual violation by an officer of the 3rd Defendant; that he (DW1) served as the Chairman, whilst the Claimant was a member of the Committee; that at the end of the investigation, the report which absolved the officer and established the falsehood of the allegation of sexual violation was duly endorsed by all the members including the Claimant.
DW1 testified further that the Defendants received complaints from two suspects in its custody alleging corrupt practices against the Claimant; that based on the allegation, the Defendants conducted a preliminary investigation; that a prima facie case of gross misconduct was established against the Claimant; that a query was issued on him and he was afforded the opportunity to defend the allegation.
The following documents were tendered by the Defendants:
i. Investigation Reports dated 27/03/2017 and 19/04/2017 – Exhibits D1 and D1A.
ii. Statements of Duty Officer, Adamu Muhammed Yaro, Kabiru Abubakar in respect of complaint by suspect in detention – Exhibits D2, D2A and D2B respectively.
iii. Preliminary Investigation Report on alleged bribery and illegal release of kidnap suspects dated 18/07/2017 – Exhibit D3.
iv. Query dated 25/09/2017– Exhibit D4 (Same as Exhibit C2)
v. Signal from NISEC KDS to NISEC NHSS – Exhibit D5
DW1 testified further under cross-examination that there was an occasion the Defendants brought the people who made the allegation of bribery to meet with the Claimant. He further testified that he was not aware that the Claimant was arrested and forced to hand over to Mr. Bulus on 18/01/2018 and also did not know if the Claimant’s salary was stopped in March 2018. DW1 also admitted that the Claimant had been dismissed but did not know the exact date of his dismissal. He also testified that an officer who absents himself for seven (7) days and above is declared a deserter and that the Claimant has been declared a deserter.
10. Now, it is considered pertinent to begin a consideration of the issues at stake by adverting to the time-honored cardinal principle of the judicial process that the relief sought by a Claimant in an action is fundamental to the fate of that action. Indeed, the relief sought is the bedrock and life wire of an action. Therefore, where the relief sought is uncertain, un-categorical, or is not supported by evidence on record or does not reflect the cause of action, the entire exercise and proceedings become futile, as there will be nothing for the Court to grant at the end of the day; and the Court will be compelled to throw out the action. See: Joe Golday Co Ltd Vs C. D. B. Plc  FWLR (Pt 153) 376; Uzoukwu Vs Ezeonu II  6 NWLR (Pt 200) 708; Neka B. B. B. Manufacturing Co Ltd Vs A. C. B. Ltd  All FWLR (Pt 198) 1175.
Keeping this principle of law in focus, I have proceeded to examine the evidence adduced by the Claimant to support the relief he has claimed.
There is no dispute between the parties that the Claimant was employed by the 1st Defendant and that the 1st Defendant is an establishment of statute. As it is well settled, the general principle is that where the conditions for appointment or determination of contract of service are governed by the pre-conditions of an enabling statute, so that a valid appointment or determination is predicated on satisfying such statutory provisions, such contract is one with statutory flavour. The contract is determinable not by the parties, but only by statutory pre-conditions governing its determination See Oloruntoba-Oju Vs Abdulraheem  ALL FWLR (Pt 497) 1 at 42; Olaniyan Vs University of Lagos  2 NWLR (Pt 9) 599; Fakuade Vs O.A.U.T.H  5 NWLR (Pt. 291) 47; Idoniboye-Obu Vs N.N.P.C.  1 SCNJ 87 at 111.
11. I am also not unmindful that the Claimant has sought declaratory reliefs in this suit; the implication being that the burden for him to prove the allegations leveled against the Defendants exceeds the regular burden provided in Sections 131 and 132 of the Evidence Act 2011. The settled position of the law, from time immemorial, is that even though the power to make a binding declaration of right is discretionary in nature; a Court would only grant declaratory reliefs sought in an action principally on the basis of the evidence adduced by the Claimant without recourse to the evidence called by the Defendant. The burden of proof on the Claimant in establishing a declaratory relief to the satisfaction of the Court is somewhat heavy, in the sense that such relief is not granted even on the admission of the Defendant, as the Claimant must lead credible evidence in proof of the declaration of right he seeks from the Court. An exception to the rule of pleadings that what has been admitted requires no further proof is that a declaratory relief cannot be granted without evidence; and it is not granted based merely on default of defence or on admission by the adverse party. See the authorities of Dumez Nigeria Limited Vs Nwakhoba  All FWLR (Pt. 461) 842; Ogolo Vs Ogolo  All FWLR (Pt. 313) 1; Ndayako Vs Dantoro  13 NWLR (Pt. 889) 187; Olabanji Vs Omokewu  7 SCNJ 266.
12. The general principles guiding the proof of a claim for termination or dismissal of employment have remained sacrosanct. For the Claimant to succeed in his claim, he must prove that the Defendants did not comply with the procedure stipulated by law for his removal.
The case put forward by the Claimant from his evidence is that an allegation of misconduct for corrupt practices was leveled against him by the Defendants but that the Defendants are, “trying to punish him by dismissal without setting up a disciplinary Committee to investigate the allegations that are pending.” In other words, the Claimant is alleging that the act of not setting up a disciplinary committee to investigate the pending allegations against him by the Defendants is punishment for him.
The argument of the learned counsel for the Claimant is that the purported investigation of the alleged misconduct for corrupt practices was conducted without affording the Claimant fair hearing and opportunity to defend the allegation. Learned counsel further argued that the fact that the Claimant was dismissed was admitted by the Defendants and that the dismissal is unlawful as the Claimant was denied fair hearing.
13. Now, has the Claimant adduced credible evidence to establish his entitlement to the declaratory reliefs?
The submission of learned counsel for the Defendants is that there is no scintilla of evidence before the Court to correlate or link the Claimant’s claim of victimization and/or punishment. Learned counsel submitted further that parties are bound by their pleadings and that evidence which is at variance with pleadings goes to no issue. Learned counsel argued that evidence adduced by the Claimant must not be speculative and argued that the entire case of the Claimant lacks credibility. Learned counsel also submitted that the requirement of fair hearing has been satisfied when an employer issues query to the employee. Learned counsel argued that the Defendants afforded the Claimant fair hearing by issuing him query; that the Defendants caused an investigation into the allegations of corrupt practices against the Claimant and that at the end of the investigation, a prima facie case of gross misconduct was established against the Claimant. Learned counsel submitted further that the Defendants complied with the laid down procedure in dismissing him from service and that the Claimant has been declared a deserter for been away from his duty for over 7 days. In support of his propositions, learned counsel cited inter-alia the following cases: Imonikhe Vs Union Bank Plc  12 NWLR (Pt 1262) 624; Iderima Vs RSCSC  16 NWLR (Pt 951) 378; Amana Suites Hotels Vs PDP  6 NWLR (Pt 1031) 453.
14. As correctly submitted by the learned Claimant’s counsel, the Defendants admitted in paragraphs 13 and 15 of the Statement of Defence that the Claimant was dismissed. His letter of dismissal was listed and frontloaded as document to be tendered but same was not tendered by the Defendants in support of the defence. The said letter of dismissal was also not tendered by the Claimant.
As I earlier remarked, the Claimant is required to adduce credible evidence to establish his entitlement to the declarations sought and should not rely on the admissions in the pleadings of the Defendants.
The law is well settled, that no Court of law is empowered to make reference and or rely on any piece of evidence or document (as the case may be) which has not been properly and formally placed before it, in the course of reaching its decision in a case. See Goodnews Agbi & Anor Vs Chief Audu Ogeh & Ors  8 NWLR (Pt 926) 40; Obinna Oranika Vs The State  LPELR-45481. The only circumstance, whereby a Court is permitted to make reference or rely on evidence not tendered and formally admitted before it, is where the evidence or document falls under the categories of evidence or document that the Court is permitted to take judicial notice of, in accordance with the Evidence Act or permitted by any other law regulating the subject matter with which the evidence or document relates. See the case of Abdullahi & Anor Vs Sadauki & Ors  LPELR 3557.
15. In the present case, the Court does not have the leverage or liberty to make reference and or rely on document frontloaded but were not tendered and duly admitted before it. In as much as the fact that the Claimant’s letter of dismissal was frontloaded by the Defendants unless and until the said letter of dismissal is formally tendered in Court and admitted, the Court is not permitted to make reference to it and or rely on it in the judgment.
It is also settled that the duty to prove the wrongfulness or nullity of the summary dismissal rests with the Claimant, not the Defendant. See Ziideel Vs RSCSC  3 NWLR (Pt 1022) 554 SC, Morohunfolu Vs Kwara Tech  4 NWLR (Pt 145) 506 SC, Ningi Vs FBN Plc  3 NWLR (Pt 435) 220, Katto Vs CBN  6 NWLR (Pt 607) 390 SC.
16. I have carefully reviewed the evidence adduced by the Claimant. In his bid to prove his case, he categorically testified in paragraph 26 of his Witness Deposition on Oath as follows:
“Against the laws guiding my employment, the Defendant took secret steps in trying to punish me by dismissal without setting up a Disciplinary Committee to investigate the allegations that are pending.” (Underlining mine for emphasis)
The Claimant’s further contention is that the query issued by the 1st Defendant and that the posting of a junior officer to take over his job leaving him without an office and job was to victimize him. His further contention is that the 3rd Defendant threatened his life and threatened to deal with him by the decision to take disciplinary action against him without following the due process of the law.
17. The law is that he who alleges must prove. In other words, it is the party who asserts the existence of a particular fact that must prove that fact and if he fails, his evidence will collapse like a pack of cards. See Nduul Vs Wayo  LPELR 45151.
There is no evidence that the query issued by the Defendants was to victimize the Claimant, neither is there any evidence of threat to his life. Indeed, none of the exhibits tendered by the Claimant establish evidence of the several allegations made by the Claimant against the Defendants. I consider the piece of evidence as speculative for the fact that the Claimant failed to lead any further evidence in proof of his believe that he was being victimized by the 3rd Defendant. He led no evidence that the decision to take disciplinary action against him without following due process of the law was to deal or punish him.
Accordingly, I reject that piece of evidence as incredible.
18. It is good to underscore and explain that it is the primary function of a trial court to hear evidence, evaluate it and to believe or disbelieve witnesses who testified before it as well as to decide the merits of a case based on its findings on the quality, relevance and strength of the evidence adduced in a trial. Evidence which ought to reasonably satisfy a Court that the existence of a fact is established must be consistent evidence and not contradictory evidence.
In Basil Vs Fajebe  4 SC (Pt II) 119 at 127, it was held that a party who adduces inconsistent evidence over one and the same issue damages his own case unless he can reconcile the inconsistency.
While under cross-examination, the Claimant testified inter-alia as follows:
“I am still in the service of the 1st Defendant. I was last at my duty post on 18/01/2018. This action was instituted on the premise that I was dismissed.”
The Claimant’s evidence as pleaded and elicited during cross- examination leaves no doubt that he has not established his claim that he was unlawfully dismissed. The evidence of the Claimant is speculative and impacts the veracity of his claim. The reliefs sought are also based on a decision of the Defendants which is also not evidence before the Court.
19. The principle is trite, that a trial Court is precluded and should not decide a case on mere assumption, conjecture or speculation. Indeed, Courts of law are Courts of both facts and laws. Hence, they decide issues placed before them on facts as pleaded and established by evidence adduced before them; predicated on applicable laws. They are enjoined to avoid speculation of whatever colouration. See Adefulu Vs Okulaja  9 NWLR (Pt 473) 668; Chukwu & Anor Vs Chukwu & Ors  LPELR 45482
I fully agree with the submission of learned counsel for the Defendants that the evidence of Claimant on the crucial issue of his claim for unlawful dismissal by the Defendants must be seen as grossly misleading and manifestly contradictory and unreliable.
I hold that the reliefs sought by the Claimant are uncertain and un-categorical; they are also not supported by evidence on record or do not reflect the cause of action. That being the case, it becomes apparent that the entire exercise and proceedings become futile. In the circumstances, without any further ado, my decision is that this action is lacking in merit and substance. It shall be and is hereby accordingly dismissed.
Parties shall bear their respective costs.
SINMISOLA O. ADENIYI
G. O. Ochai Esq for Claimant
L. A. Bulus Esq. for Defendants