IN THE NATIONAL INDUSTRIAL COURT
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HER LORDSHIP HON. JUSTICE O. Y. ANUWE
SUIT NO: NICN/OW/29/2013
Mrs. Eke Kalu Patricia ] CLAIMANT
Nigeria Postal Services ] DEFENDANT
Onwuchekwa for the Claimant
No appearance for the Defendant
This suit was originally commenced by way of writ of summons filed at the Federal High Court, Umuahia Division on the 7th day of April 2005. Same was subsequently transferred to this Court on the 8th day of October 2013. On the 30th day of April 2014, this court ordered parties to re-file their processes to bring them in compliance with the rules of this court; consequent upon which the Claimant filed a writ of summons on the 13th day of May, 2014 seeking the following reliefs: 1.A declaration that the Claimant's dismissal from the employment was unlawful, the said dismissal being predicated on an unproved criminal charge against the Claimant. 2.A declaration that the purported dismissal of the claimant was done in violation of her fundamental right to fair hearing and therefore unlawful, unconstitutional, null and void. 3.An Order reinstating the Claimant, or in the alternative an Order of court indemnifying the Claimant in the sum of N10,000,000.00 (Ten Million Naira) as damages for unlawful dismissal of the Claimant. The writ was accompanied by all the necessary accompanying processes which were served on the defendant. The Defendant did not re-file any processes. Before the order to re-file processes was made on the 30th day of April 2014, the court had observed that the same order to re-file processes had been made by the Federal High Court while this action pended there, and which order the Defendant failed to comply, even at the Federal High Court. Hearing commenced on the 3rd day of July, 2014 with the Claimant testifying as her sole witness. After several adjournments, the Defendant was on the 29th day of June 2015, foreclosed from cross-examining the Claimant. Thereafter, on the 30th day of September 2015, the Court foreclosed the Defendant from defending this action and ordered filing of Final Written Addresses. The Claimant’s Final Address was filed on the 20th day of October 2015 and same was served on the Defendant on the 29th day of October as shown on Page 197 of Volume 2 of the case file. The Defendant did not file any address. The Claimant’s counsel adopted his final written address on the 17th day February 2016. In his Final Written Address filed on 20th October 2015, Counsel raised one issue for determination, which is: “whether or not the claimant has been able to prove her case based on preponderance of evidence to be entitled to her claims” Counsel submitted that the Claimant testified and placed credible evidence before this court. The Claimant’s evidence was not challenged or controverted in any manner. It is counsel’s submission that when credible evidence is unchallenged. Same is taken to have been admitted and the Court is bound to act on same. Counsel referred the Court to the case of F.C.D.A vs. NZELU (2014) 5 NWLR (Pt.1401) 581. He submitted further that the Claimant's case is that she was dismissed by the Defendant based on an alleged “mis-delivery” of Registered Letter No. 44502. The Claimant gave unchallenged evidence that she was in charge of Bulk mails which does not include registered letters including Registered Letter No. 44502 in issue. The Claimant maintained in her evidence that as a matter of practice and NIPOST guide, anybody who receives a letter from green receipt will be solely in charge of the letter. The Claimant stated in her evidence that it was Mr Agbaraevo Andrew who received the said Registered Letter No. 44502 in issue and “mis-delivered” same to an imposter. The Claimant in substantiating her claim gave the Defendant notice to produce the NIPOST guide but the Defendant failed and refused to produce same. It is trite law that evidence which could be produced and is not produced would be presumed that if produced, would be unfavourable to the person who withholds it. See Section 167(d) of the Evidence Act, 2011. The Claimant's evidence equally established that there was nothing connecting her with the “mis-delivered” Registered Letter No. 44502 in issue, not even the police investigation. It is Counsel’s contention that where the dismissal of an employee is based on a criminal charge or allegations, such allegation must first be proved before the dismissal can stand. The Defendant has woefully failed to place such material before this court. Counsel referred the Court to the case of OLAMIDE vs. ZEST INTERNATIONAL HOTEL (2012) 26 N.L.L.R (Pt. 74) (Pg. 300, Paras C-F). It is equally counsel’s submission that the Claimant’s employment with the defendant is statutory. He submitted that the Claimant’s dismissal emanated from the proceedings of the Defendant's Senior Staff Disciplinary Committee meeting held on the 24th day of November, 2004 without hearing from her and thereby breached her right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended. See the case of OLUFEAGBA vs. ABDUR-RAHEEM (2009) 18 NWLR (Pt. 1173) P. 451, PARAS F-H. Finally, counsel argued that the Defendant dismissed the Claimant without regard to the Public Service Rules which regulates the conditions of service of the Claimant and it is trite law that any disengagement of an employee whose condition of service is regulated by a statute without recourse to such statute is null and void. Counsel contended that the Defendant's failure to defend this suit clearly showed that it acted in bad faith. Counsel urged the Court to grant the claims sought. Court’s Decision In determining this case, I shall adopt the sole issue formulated by the Claimant’s counsel in his written address for determination. Which is whether or not the Claimant has been able to prove her case based on the preponderance of evidence, to be entitled to her claims. The Claimant’s case is that she was unlawfully dismissed from the employment of the Defendant and she consequently sought the orders of this court, among others, to declare the dismissal null and void and to be re-instated to her employment. It is settled law that the onus is on the Claimant alleging unlawful dismissal to prove that the termination of his or her employment is unlawful. And to discharge this burden, the Claimant must prove- i.That she was an employee of the Defendant, ii.Place before the court the terms and conditions of her employment, iii.Who can appoint and who can remove her, iv.In what circumstances her employment can be determined, and v.In what manner the said terms were breached by the defendant. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; AYORINDE vs. OYO STATE GOVERNMENT (2007) All FWLR (Pt. 356) Pg. 709 at 722. The Claimant testified as the only witness in her case. In her evidence, the Claimant stated that she was employed by the Defendant on the 9th day of October, 1990 as a level 04 officer and was placed on probation for 5 months. The Claimant tendered her employment letter and it was admitted in evidence as Exhibit A. The Claimant stated that the terms and conditions of her employment were set out in the employment letter. It is the Claimant’s evidence also that after the probation period, her employment was confirmed by the Defendant and her employment was then subject to the conditions in the Civil Service Rules. After 14 years of service, she rose to the rank of a Senior Postal Officer. About the 27th day of April 2004, the Defendant through its Area Manager, Abia territory, served her a letter, that is Exhibit C, where she was alleged to have deliberately mis-delivered a Registered Letter No. 44502. The Claimant said she denied the allegation in her reply admitted as Exhibit D. It is the Claimant’s evidence that she was not in charge of delivering of registered mails but it was one Mr. Agbaraevo Andrew who delivered the mail in question and the said Agbaraevo Andrew admitted this fact when he was interrogated. On 13th June 2004, the Defendant wrote her yet another letter querying her for the alleged mis-delivery of Registered Letter No. 44502. It was alleged in the query that she connived with Agbaraevo Andrew to mis-deliver the said registered letter. The claimant said she denied the allegation in her reply to the query. The query and her reply were put in evidence as Exhibits C1 and D1. The Claimant went further that nobody, including Mr. Agbaraevo Andrew, implicated her in the mis-delivery of the mail. It was rather her alertness that led to the discovery that it was Agbaraevo Andrew who mis-delivered the letter and this led to recovery of the letter. The Claimant said she shared the same table with Mr. Agbaraevo Andrew and did recall a time Agbaraevo Andrew delivered the mail in issue to one of his visitors. The Claimant testified that she was neither interviewed jointly or separately with Mr. Agbaraevo Andrew but the Defendant came to the conclusion that she conspired with Mr. Agbaraevo Andrew to mis-deliver the registered letter. The Claimant maintained that her duty schedule did not include the delivery of registered letters. About the 6th day of July, 2004 the Defendant wrote her another letter alleging that the recovered mis-delivered letter contained fake share certificates and demanded for her explanations. Before this letter, the Investigation Unit of the Defendant, sitting at the Defendant’s Aba Office, had asked the Claimant to distinguish between real and fake share certificate. The Claimant said she was not able to distinguish between the two share certificates and she was asked to put her answer in writing which she did. According to the Claimant, as a matter of Practice and NIPOST guide, anybody who receives a letter from GREEN RECEIPT will be solely in charge of same, and the Registered Letter No. 44502 in issue fell within that category. The Claimant stated that nobody appeared before the investigation unit to either accuse her or implicate her with respect to the allegation. The only question she was asked by the Investigation Unit was whether she was the person who delivered the letter and her answer was NO. The Defendant thereafter caused the police to arrest her and she was detained for 4 days at the Central Police Station Aba. She was latter granted bail by the police. On the 30th day of November, 2004, she received a letter, Exhibit H, from the Defendant dismissing her from service. The letter stated that she was dismissed based on the proceedings of the Defendant’s Senior Staff Disciplinary Committee meeting held on 24th November 2004. The Claimant testified that she was never summoned before this committee neither did the committee hear from her. The Senior Staff Disciplinary Committee is responsible for the discipline of erring staff and it is required to hear from the staff to be disciplined. As at the date of her dismissal, she had served the Defendant for a period of about 14 years and as such entitled to pension and gratuities. Upon her receipt of the letter of dismissal, she instructed her counsel to write the Defendant to demand that the purported dismissal be reversed or adequate compensation paid to her in the alternative. The letter, which is in evidence as Exhibit I, also served as a pre-action notice I have observed earlier in this judgment that the Defendant did not re-file its processes in this suit. I must also mention that the Defendant did not even defend this suit. Let me give a brief background of the Defendant’s conduct up to this stage of the case. This matter was original filed before the Federal High Court sitting at Umuahia but it was transferred to this court on 8th October 2013. At the time the matter was transferred to this court, the Federal High Court had directed the parties to re-file their processes before the Federal High Court. When the case was mentioned before this court, I made the same order to parties to re-file their processes in order to conform to the rules of this court. The Claimant complied by re-filing her Complaint and other processes but the Defendant waited till March 2015 when he filed a motion dated 16th March 2015 to amend its statement of defence. I must mention that the Claimant concluded her evidence-in-chief on 3/7/2014 and the matter has since then been adjourned for cross examination of the Claimant. After the filing of the Defendant’s motion on 17/3/2015, the Defendant’s counsel never showed up in court thereafter to move the motion or cross examine the Claimant. The Defendant was foreclosed from cross examining the Claimant on 29/6/2015 and the matter was adjourned for the Defendant to present its defence. Upon failure of the Defendant or its counsel appearing to conduct the defence, this court was forced to foreclose the Defendant from defending the suit on 30/9/2015. The Defendant’s said motion dated 16/3/2015 and filed on 17/3/2015 has remained unmoved by the Defendant till date. I hereby strike out the said motion. In view of the foregoing, the Defendant did not file any defence nor call any evidence in this suit. The Claimant’s suit therefore remained undefended. Having failed to file pleadings and defend the suit, all the averments pleaded in the claimant’s statement of facts and the evidence led thereon against the Defendant are deemed to have been admitted by the Defendant. See NEPA vs. ADEGBENRO (2003) FWLR (Pt. 139) 1556; I.N.E.C vs. A.C (2009) All FWLR (Pt. 480) 732 at 803. From the reliefs sought by the Claimant, it seems to me that she found her case on an employment with statutory flavour and lack of fair hearing before the termination of her appointment. In this case, it has to first be determined whether the Claimant’s employment is one governed by statute or it is just an employment of master and servant. In paragraph 5 of her further amended statement of facts, the Claimant pleaded her employment letter and averred that the terms and conditions of her employment were spelt out in the letter. Further in paragraph 6, the Claimant averred that after the confirmation of her employment, the Civil Service Rules regulated her employment. Generally, the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. The Claimant’s employment letter is in evidence as Exhibit A. Its paragraph 1 (f) contains as follows: “That you will be subject in all respect to all conditions of service stipulated in the Civil Service Rules and other Government Regulations and instructions.” From this content of the employment letter, it is not in doubt that the Claimant’s employment was subject to the Civil Service Rules, also called the Public Service Rules. The Public Service Rules has been judicially recognized to have statutory backing and employment under the Public Service Rules (PSR) is considered employment with statutory flavour. See FUT, YOLA vs. MAIWUYA (2013) All FWLR (Pt. 677) 753 at 762 where it was held that: “Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. They cannot therefore be properly or legally removed from their employment without strict adherence to the civil service rules”. Therefore, the Claimant’s employment had statutory flavour. Where the terms and conditions of a contract of employment are specifically provided for by statute, it is said to be an employment with statutory flavour or contract protected by statute. In other words, an employment with statutory flavour is one where the procedure for employment and discipline are governed by statute. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (SUPRA) at 42; OKWUSIDI vs. LADOKE AKINTOLA UNIVERSITY (2012) All FWLR (Pt. 632) 1774 at 1786. Having now been determined that the Claimant’s employment was one under the Public Service Rules, the issue here is whether the dismissal was in accordance with PSR and natural justice. The Claimant was dismissed in 2004. The Public Service Rules applicable at the times was the Public Service Rules (revised to 1st January 2000). The procedure for removing a public servant is a condition in the contract of employment of the Claimant. Therefore, for the Claimant to be validly removed from her employment, the Public Service Rules must be strictly complied with. What is now to be considered is whether the Defendant complied with the procedure laid down in the Public Service Rules in the termination of the Claimant’s employment. I am entitled to take judicial notice of the Public Service Rules. The Claimant’s dismissal letter is in evidence as Exhibit H. The important paragraph of the letter is the 1st paragraph. It reads: “The NIPOST Management at its senior Staff Disciplinary Committee meeting held on 24th November 2004 deliberated on the pending case against you and has decided that you should be and you are hereby DISMISSED from service with immediate effect for misconduct”. From the content of Exhibit H, the Claimant was dismissed for misconduct and the decision to dismiss the Claimant was taken by the Defendant’s Senior Staff Disciplinary Committee in a meeting held on 24th November 2004. The disciplinary procedure for misconducts is contained in Rules 04302 to 04306 of the Public Service Rules. Of particular relevance and interest in this case is Rule 04306. This Rule stipulates the procedure to be followed before the appointment of an officer in the Federal Public Service of the Claimant’s cadre could be terminated. The officer must be given a query and opportunity to respond in writing; given access to documents or reports used against him; be invited to a board of inquiry to defend himself and shall be entitled to call witnesses; be entitled to ask questions from the witnesses called by the board and the board, after inquiring into the matter, shall make a report to the commission or management. This procedure also accord with the principle of fair hearing. A public servant can only be validly removed from service if the procedure prescribed by the rules is followed. From the facts narrated by the Claimant before this court, the Claimant said she was first given a letter dated 27th April 2004, Exhibit C, where the allegation that she mis-delivered a registered mail was made against her and she was instructed to show cause why disciplinary action should not be taken against her. In June 2004 she received a query, Exhibit C1, on the subject and she also appeared before the investigative unit of the Defendant. From her evidence, what happened before this Investigation Unit was merely to distinguish between an original share certificate and a fake one and to explain her role in the incidence. Only a question was asked from her and nobody appeared before the Investigation Unit to accuse or implicate her. I must mention here that from all the Claimant has narrated of what transpired before the Investigation Unit, it cannot be said that the disciplinary procedure in the Public Service Rules was observed. It seems to me however, that the function of the Investigation Unit was purely investigative. That was why the Defendant went further to set up the said Senior Staff Disciplinary Committee to determine and decide the guilt of the Claimant. It is this Disciplinary Committee which purportedly met on 24th November 2004 that is the focus at this moment. It is the Claimant’s case that the Senior Staff Disciplinary Committee is responsible for the discipline of erring staff and it is required to hear from the staff to be disciplined but she was never summoned before this committee neither did the committee hear from her. That is to say the Claimant was not invited to face the disciplinary committee that deliberated on her case nor was she even aware the Committee met in the first place. It thus means that she was not present when witnesses testified against her and she was not given opportunity to defend herself before the committee or allowed to call witnesses before the Committee. I cannot also see the Committee giving her any document used against her when she was not even aware of the Committee’s proceedings. It is also clear that the Claimant was not even formally accused of any misconduct by the Committee neither was she accorded hearing before the committee decided to dismiss her from service. All these lapses are tantamount to denial of fair hearing. The bottom line is that the procedure in the Public Service Rules was not followed before the Claimant was dismissed from service. The Defendant did not file any process to deny these facts as averred by the Claimant. It also did not call any evidence at all. It need not be said again that the effect of the Defendant’s default is that it is taken to have admitted all the facts of the Claimant’s case. Besides, I find from the facts of the Claimant’s case that the procedure in the Public Service Rules for dismissal of a public servant was not followed which also translates to the fact that the Claimant was not given fair hearing by the Defendant's Senior Staff Disciplinary Committee meeting held on the 24th day of November, 2004 before she was dismissed from employment. The provisions of Rule 04306 of Public Service Rules are designed to ensure that the staff facing disciplinary action is afforded fair hearing before a decision affecting his or her employment is taken. Since I have found in this judgment that the procedure in Rule 04306 of Public Service Rules was not observed in the dismissal of the Claimant, it follows that she was not given fair hearing before she was dismissed. I find that the Claimant has discharged the minimal burden of proof required in this case. She has shown that she was employed by the Defendant and her employment was subject to the Civil Service Rules. She was dismissed based on the proceedings of the Defendant’s Senior Staff Disciplinary Committee meeting held on 24th November 2004 without affording her a hearing before the Committee. It is now settled that an employment which has statutory flavour can only be terminated in the manner specified in the relevant statute. In OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 46 to 47, the Supreme Court held- “When an office or employment has a statutory flavour in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoy 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. When a statute has conferred on anybody the power to make decisions affecting individual, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions. There is a presumption that when the legislature confers a power on an authority to make a determination, it intends that the power shall be exercised judicially in accordance with the rules of natural justice.” Failure of the Defendants to defend the suit left the Claimants claims unchallenged. In IYERE vs. BENDEL FEEDS AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1247, it was held that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept and act on it unless it is incredible. See also OYENIYI vs. ADELEKE (2009) All FWLR (Pt. 476) 1902 at 1922. In I.N.E.C vs. A.C (2009) All FWLR (Pt. 480) 732 at 779, it was held that “if a plaintiff adduces in terms of the pleadings and in proof of it and the evidence is not rebutted, the plaintiff would be entitled to judgment”. I hold the same view in this suit. Besides the absence any defence to this suit, I also find that the Claimant has proved her case and she is entitled to judgment. The Claimant has sought an order of re-instatement or payment of the sum of N10,000,000.00 as general damages. It is the law that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once dismissal or termination of employment is declared null and void, there is nothing legally standing in the way of the employee from having his or her job back with its attendant rights, benefits and privileges. See KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 199. In such a situation, the court has the power to order the reinstatement of the employee. The right to be reinstated is a right that follows a declaration that termination was unlawful, null and void. In the circumstance of this case where it has been found that the contract of employment is guided by statute, the Claimant is entitled to a consequential relief of reinstatement and payment of her outstanding salary from the time she was unlawfully dismissed from employment. See OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807. In the summary of this judgment, the Claimant’s claims succeed. The dismissal of the Claimant from the service of the Defendant on 30th November 2004 is hereby declared unlawful, null and void. In addition, I make the following orders: 1.An order is hereby made re-instating the Claimant to her employment forthwith and to be placed on the level she ought to be presently in the employment of the Defendant had her employment not been unlawfully tampered with. 2.The Defendant is also ordered to pay to the Claimant all her outstanding wages, salaries, allowances and other emoluments accruing to her from the date of the unlawful dismissal till the date of this judgment. 3.Cost of N250,000.00 is also awarded to the Claimant against the Defendants. The Claimant’s counsel has reminded this court in his final written address that the cost of N50,000.00 awarded in favour of the Claimant on the 19th day of November 2014 has not been paid by the Defendant. The Defendant is hereby ordered to pay this cost within 30 days from today to the Claimant. The Defendant is hereby ordered to immediately comply with order (1) above, while the monetary orders (including (2) above) must be complied with within 30 days from the date of this judgment; failure of which post judgment interest shall begin to run at the rate of 10% per annum, until it is fully liquidated.
Judgment is entered accordingly.
Hon. Justice O. Y. Anuwe Judge