IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

 

 

IN THE YENAGOA JUDICIAL DIVISION

 

 

HOLDEN AT YENAGOA

 

              BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

DATE: TUESDAY 25^THNOVEMBER, 2020                           

Suit No. NICN/ CA/ 169/ 2013

 

BETWEEN:

MR. ANDREW JONATHAN                                                            ---------------------- CLAIMANT

AND

BAYELSA STATE JUDICIAL SERVICE COMMISSION -------------------- DEFENDANT

 

REPRESENTATION

Mr. I. J. Akpolu Esq with E.V. Agai Esq for the Claimant.

Mr. M.A. Idaiyi Esq for the Defendant.

 

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant commenced this action by a complaint dated and filed on the 21^st day of November, 2013. The claimant commenced this action against the Defendant claiming as follows:

a.       A DECLARATION to the effect that the purported compulsory retirement of the Claimant by the Defendant on the basis of an inconclusive disciplinary proceedings by the Defendant commission is illegal, null and void in view of the breach of principles of natural justice and the Public Service Pension Board Law Cap P19 Laws of Bayelsa State, 2006.

 

b.      AN ORDER nullifying the purported compulsory retirement by the Defendant.

 

c.       AN ORDER of perpetual injunction restraining the defendant, their servants, agents, privies and legal representatives, however or howsoever called from preventing the claimant to performing any function and duties of his office or interfering with the employment the rights and benefit attached to his office.

 

d.      AN ORDER compelling the Defendant to pay the Claimant all his dues and emolument {including promotions} from April, 2013 until the date of reinstatement.

 

e.       General damages of Ten Million Naira {N10, 000, 000. 00} only.

 

Accompanying the complaint were the statement of facts, witness deposition on oath, list of witnesses and the list of documents to be relied upon during trial.

 

On receipt of the Claimant’s processes, the Defendant filed her statement of defence and other accompanying processes on the 15^th day of January, 2014 which was amended pursuant to order of court on the 8^th day of April, 2014. By a motion dated 6^th November, 2019, the Defendant sought and obtained the leave of this Honourable court to substitute its witness Mr. David Opokuma with Nicholas Oweibo J. and also file a witness deposition for Mr. David Opokuma and amend its list of witness.

 

The Claimant filed a reply to the Defendant’s Statement of Defence on the 14^th of July, 2014.

 

This suit was originally filed at the Calabar Judicial Division of the National Industrial Court. However, before the matter had gone into trial, the Defendant through the counsel wrote for the transfer of the matter to Yenagoa Division on the 5^th day of October, 2016. As a result of the delay in the transfer of the matter, the Claimant also on the 13^th day of February, 2018 made similar application for transfer and the matter was eventually transferred to the Yenagoa Division on the 27^th day of September, 2019.

 

Trial commenced on the 3^rd day of December, 2019. The claimant testified for himself as sole claimant’s witness and tendered ten documents which were admitted and marked as “Exhibits Cw 001 – Cw 010” respectively. The claimant was cross-examined and he closed his case.

 

The defence opened their case on the 5^th day of December, 2019. Mr. David Opokuma a civil servant testified as DSw1 and tendered 8 documents which were marked as “Exhibits JSC 001 – JSC 008 a- f” respectively. Dw1 was cross examined and thereafter closed their case. Parties adopted final written address on 7^th July, 2020 and the matter was adjourned for judgment.

 

THE CASE OF THE C LAIMANT

It is the case of the claimant that until his purported compulsory retirement by the Defendant he was a staff of the Defendant serving at the Defendant’s outpost in Sagbama in the Sagbama Local Government Area of Bayelsa State. He avers that vide an internal memo, the Defendant issued him a query where it alleged that he swore in the Chairmen of Sagbama Local Government Council, Ekeremor Local Government Council and Kolokuma/Opokuma Local Government Council respectively on the 13^th day of April, 2012 and he responded immediately to the said query denying the allegation. He stated that the Defendant informed him that because of the pendency of a criminal proceeding against him in the Sagbama High Court in respect of the same allegation, the disciplinary committee will discontinue its proceedings. He further averred that on the 21^st day of February, 2013, the Defendant withdrew the criminal proceedings and the matter was struck out and he wrote to the Defendant requesting for rescission of the order of interdiction and for the Defendant to restore his salary, but the Defendant failed to respond to the said letter despite his lawyer writing a second time to the Defendant. He stated that he was given a letter of compulsory retirement which retired him from the service of the Defendant with effect from 30^th April, 2013. He further stated that the disciplinary committee never at any time after the withdrawal of the criminal proceeding against him sit to deliberate on this matter neither was he given an opportunity to be heard or be given the mandatory three {3} months notice of compulsory retirement as required by law. He stated that he is not up to sixty {60} years of age and has not put in the compulsory thirty five {35} years of service as required by law. Neither has he at any time being indicted by a competent court of law or the disciplinary proceedings of the Judicial Service Commission.

 

Under cross examination, Cw1 stated that he has not been signing oath of allegiance and oath of office before the one he did on 13^th April, 2012. Cw1 denied signing oath of allegiance and oath of office because its not within his schedule of duty. Cw1admitted that he was issued a query for signing the oath of office and oath of allegiance to the Chairmen of Sagbama, Kolokuma/Opokuma and Ekeremor Local Government Council and he responded denying the allegation, but did not deny signing the oath of allegiance and oath of office. Cw1 admitted that he was invited to appear before the panel by the defendant on 12^th and 13^th December, 2012 and appeared before the committee specifically on the 13^th December, 2012. Cw1 informed this court that he thought if he appeared before the committee he will face the allegations labeled against him but that was not what happened. Cw1 stated that he is not a member of the Committee and its their own prerogative to fix date, venue and time of their meeting. Cw1 admitted that there was a criminal case against him which was between the state and against him which the state later withdrew the case. And when he appeared before the committee they informed him that they cannot discuss his case until when the case instituted against him at the Sagbama High Court was determined. Cw1 stated that the letter of compulsory retirement was based on the allegations contained in the query earlier issued to him and he received it on the 30^th October, 2013.

 

THE CASE OF THE DEFENDANT

It is the case of the Defendant that the Claimant was until the 30^th of April, 2012 an employee of the Defendant, a Principal Court Administrator attached to the Customary Court of Appeal, Sagbama. By the provisions of the Local Government Law of Bayelsa State, the Chairmen of Local Government Councils in Bayelsa State are to be sworn in to office by the Chief Judge of Bayelsa State, but on the 13^th April, 2012 the Claimant without authorization swear into office the Chairmen of three Local Government Councils. Following the misconduct of the Claimant by his undisciplined and unauthorized swearing in of the Chairmen of Sagbama Local Government Council, Ekeremor Local Government Council and Kolokuma/Opokuma Local Government Council on the 13^th day of April, 2012 by wrongfully without authority signing their oaths of allegiance and official oaths this made the Chief Registrar to issue him a query vide the letter dated 13^th August and a disciplinary committee was set up. At the said disciplinary committee sitting, the Claimant was in attendance on the 12^th and 13^th of December, 2012 and was comprehensively heard orally and in writing without complaints on the charges of misconduct against him. Dw1 avers that after the conclusion, the disciplinary committee considers the totality of the hearing and renders a decision sanctioning the Claimant but the Defendant in the committee deferred the pronouncement of the punishment of the Claimant to await the conclusion of the criminal proceeding that was pending against the Claimant. That the criminal prosecution of the Claimant was undertaken from preferment to withdrawal by the office of the Attorney General of Bayelsa State which was not under the control of the Defendant and therefore not under its control. That upon conclusion of the disciplinary committee’s hearing and the allegation of misconduct established against the Claimant the Defendant pronounced its verdict which in effect disciplined the claimant by compulsorily retiring him.

 

Under cross examination, Dw1 stated that he is not a statutory member of the JSC and never took part in the decision making of the JSC. Dw1 informed the court that they have a dispatch record book where they record proceedings but can’t remember if its on their dispatch record that the Claimant received his letter of compulsory retirement on the 30^th October, 2013. Dw1 stated that he doesn’t have the detailed proceedings of the Defendant with respect to the Claimant. Dw1 denied that the Claimant was never asked to go and come back and wait until when he was further invited because of the criminal matter pending before High court. Dw1 admitted that he is aware that one cannot be compulsorily retired under section 29 {2} of the Public Service Pension Board Law unless he is given a three {3} months notice or three months salary in lieu; but he has lost that right because of the disciplinary procedure. Dw1 admitted that the claimant was not given such notice or salary in lieu. Dw1 admitted that the Claimant rose to the rank of Assistant Commissioner for Oaths and the Claimant has commissioned several oaths before this one in contention. Dw1 stated that the Claimant in his reply stated that he thought commissioning oath of office and oath of allegiance was part of his duty. Dw1 stated that he has not seen the Claimant administering oath of office or oath of allegiance but he called the Claimant not to do it. Dw1 stated that he is aware that the Claimant was invited to the police station where he made statement.

 

At the close of each party’s case this court ordered parties to file and exchange written addresses, which same was adopted.

 

SUBMISSIONS BY DEFENDANT’S COUNSEL

 

Learned counsel to the Defendant in his final written address dated 18^th December, 2019 and filed on the same date formulated three issues for determination. The three issues are:

 

a.       Whether the Claimant has established that he was not validly compulsorily retired.

 

b.      Whether the Claimant’s action of signing the oaths of allegiance and oaths of office thereby swearing in the chairmen of the three Local Government Councils of Sagbama, Ekeremor and Kolokuma/Opokuma amount to misconduct.

 

c.       Whether the compulsory retirement of the Claimant was not in adherence with the principles of natural justice and the Public Service Pension Board Law Cap P 19 Laws of Bayelsa State, 2006.

 

In arguing the first issue, whether the Claimant has established that he was not validly compulsorily retired. Learned counsel submitted that where a party complains that the termination of his appointment is null and void, he is saying in effect that there is a breach of contract of service which he has by that complaint naturally put in issue a breach of contract of service, and for a court to be able to come to a conclusion as to whether or not there is a breach of contract of service the claimant must as a matter of utmost necessity plead and prove the terms and conditions of the contract of service that have been alleged to be breached. He relied on the case of NITEL vrs Oshodin {1999} 8 NWLR pt. 616 p. 528 @ p. 541 paras A – B. The onus is on the Claimant to prove the terms of the agreement allegedly breached. Learned counsel reproduced paragraph 1 of the Claimant’s statement of claim and submitted that the terms of contract of service in a case for enforcement of contract of employment is always the bedrock of the plaintiff’s case. The plaintiff is therefore bound by his pleadings such that where his pleadings contained no averment as to the terms of the contract of service as in the instant case, he cannot complain that he was wrongly terminated.  He cannot raise or adduce evidence to support that he had failed to plead. He relied on the case of Morohunfola vrs Kwara State College of Technology {1990} 4 NWLR Pt. 145 p. 506 @ pg 525 – 526 paras G – B. Learned counsel submitted that the Claimant in relation to his reliefs in the statement of claim failed to plead the material facts required to be pleaded and show interference by the Defendant with the Claimant’s employment thereby rendering his compulsory retirement illegal, null and void, his claims are bound to fail. He relied on the cases of Morohunfola vrs Kwara State College of Technology {supra} p. 628-629 para H –A and Amodu vrs Amode & Anor {1996} 5 NWLR pt. 150 p. 356 @ 373. Learned counsel argued that the Claimant who sought for a declaration that his compulsory retirement is illegal, null and void has the burden to establish before court the terms and conditions of employment and the terms of his employment that has been breached which renders his compulsory retirement illegal, null and void. Learned counsel submitted that the claimant having failed to plead and prove the necessary facts and particulars in proof of his claim that his compulsory retirement is illegal, null and void his action fails and same be dismissed.

 

On the second issue, whether the Claimant’s action of signing the oaths of allegiance and oaths of office thereby swearing in the Chairmen of Sagbama, Ekeremor and Kolokuma/Opokuma amount to misconduct. Learned counsel answered in the affirmative and submitted that the Claimant signing the aforesaid documents and swearing them in do not fall within the schedule of the Claimant as a Principal Court Administrator and he was not authorized by any of his superior to do so. Learned counsel referred this Honourable court to paragraphs 2 of the amended statement of defence and paragraphs 5, 6 and 7 of the witness statement on oath of the defendant where the Defendant has pleaded and given evidence in support of this facts.

 

Learned counsel contended that by section 22 of the Local Government Law Cap L.10 laws of Bayelsa State, 2006 the power to swear in Local Government Chairmen including those of Sagbama, Ekeremor, Kolokuma Opokuma/ is the exclusive preserve of the Chief Judge of Bayelsa State. Therefore any person who carries out this function like the Claimant did, merely carries out an unlawful duty. He referred to the case of Abdullhi vrs Gov. Kano State {2014} 16 NWLR pt. 1433 p. 213 @ p. 243 paras G – H. Learned counsel argued that the Claimant had in an attempt to play down the allegation and to establish innocence resorted to ignorance on his part in carrying out the unlawful act. The ignorance of section 22 of the Local Government Law of Bayelsa State is no excuse for the Claimant’s misconduct. Learned counsel argued that the averment of the Defendant that “the elections of the three Local Government Chairmen aforementioned were very controversial and notorious of which every public officer including the Claimant were aware and the Claimant in the circumstance ought to have exercised discipline, restraint and self control by resorting to his chain of authority culminating at the top with the Honourable Chief Judge for clarification which he recklessly never did” was not controverted, denied or contracted by the Claimant. The above is therefore deemed admitted. Learned counsel contended that the Claimant who is aware of the controversial nature of the elections of the three Local Government Chairmen and went ahead to swear them in without authority clearly undermines and breached the confidence that should exist between the claimant and the defendant. He relied on the cases of Agbo vrs CBN {1996} 10 NWLR pt. 478 p.370 @ p. 378paras G – H and Ekunola vrs CBN {2006} 14 NWLR pt. 1000 p. 292 @ p. 341 para B. On the functions of subscription of oath of office and oath of allegiance learned counsel referred to the case of Ogbolosingha vrs B.S.I.E.C. {2015} 6 NWLR pt 1455 p. 311 @ p. 350 para G and submitted that the conduct of the Claimant in signing the oaths of allegiance and oaths of office of the three Local Government Councils thereby ushering them into office amounts to misconduct and urged this Honourable court to so hold.

 

On the third issue, whether the compulsory retirement of the Claimant was in adherence with the principles of natural justice and the Public Service Pension Board Law Cap p. 19 Laws of Bayelsa State, 2006. Learned counsel under the sub topic of “principles of natural justice” submitted that the Claimant’s compulsory retirement was in adherence with the principles of natural justice and The Public Service Pension Board Law Cap p. 19 Laws of Bayelsa State, 2006. The Claimant engaged in an unlawful act of signing and swearing in of three Local Government Chairmen by signing their oaths of allegiance and oaths of office. Following this unlawful act he was issued a query by the Chief Registrar of the Customary Court which the Claimant responded to, the Defendant then set up a disciplinary committee to hear the Claimant, who invited the Claimant to its sittings of 12^th and 13^th of December, 2012 where the Claimant made both oral and written representations. Learned counsel contended that at paragraphs 5a i – vi of the amended statement of defence and paragraphs 13, 14, 15, 16, 17 and 18 of the witness deposition on oath of the Defendants, the Defendant went further to plead particulars and gave evidence on same of the hearing of the Claimant by the Defendant which the Claimant did not file a reply to the said particulars that raised new issues which did not arise from the statement of claim making the Claimant duty bound to deal with those new issues in his reply failing which he is deemed to have admitted same.  He cited the case of Phillips vrs E.O.C.& Ind. Co. Ltd {2013} NWLR pt. 1336 p. 618 @ p. 638 – 639 paras H – A. Learned counsel contended that the Claimant turned around his pleadings and evidence when during cross examination he stated that he did not make any representation on the 12^th and 13^th of December, 2012 against his expectation that he would face the allegations against him but rather when he appeared before the disciplinary committee he was told that his case cannot be discussed until the criminal case at the High Court, Sagbama was determined. Learned counsel submitted that this is an after thought and same be discountenanced.

Learned counsel submitted that the Claimant is not a witness of truth as demonstrated in his evidence. With respect to exhibit Cw 010, the Claimant had pleaded that the date of receipt of same by the Defendant was on 30^th April, 2013 {paragraphs 9 & 10 of the statement of claim and his witness deposition respectively} only for the Claimant to say that the said letter was served on the Defendant on the 30^th day of October, 2013 (paragraph 1b of his reply}. The Claimant is self contradictory and cannot be taken as a witness of truth. He cited the case of Monoprix Nig. Ltd vrs Okenwa {1995} 3 NWLR pt. 383 p. 325 @ p. 341 para C. Learned counsel further argued that the Claimant in his reply and further written statement on oath stated that he did not receive his letter of compulsory retirement on 23^rd May, 2013 thereby denying the handwriting, name and signature on exhibit Jsc 007. However, the Claimant did not deny signing exhibits Cw 003, Cw 009, Jsc 008 A – F, written statement on oath of 21^st November, 2013. Learned counsel invited this court to compare the signature on exhibit Jsc 007 with his signature on the above mentioned documents to come to the conclusion whether the signature on exhibit JSC 007 is his or not. He relied on section 101 {1} Evidence Act, 2011 and the case of Jukok International Ltd vrs Diamond Bank Plc {2016} 6 NWLR pt. 1507 p. 55 @ p. 108 @ para E.

 

It is the contention of learned counsel that compulsory retirement was in accord with natural justice as the Claimant was given a query which he responded to. Where an employee who is issued a query response to same before a decision is taken by the employer, the requirement of fair hearing or natural justice is thereby satisfied. He relied on the case of Imonikhe vrs Unity Bank Plc {2011} 12 NWLR 1262 p. 624 @ p. 648. Learned counsel argued that the claimant’s claim that he was not indicted by a court and the disciplinary proceedings, hence the purported compulsory retirement is null and void is highly misconceived as it is not necessary nor is it a requirement for him to be indicted by a court before he can be compulsorily retired. Learned counsel contended that it is equally a misconception for the claimant to say that the disciplinary proceedings was inconclusive when as a matter of fact he was issued a query which he responded to and was invited to the meeting of the disciplinary committee on two occasions which he attended and made representations before the committee, which the committee considered his representations and took a decision by compulsorily retiring him and communicated the said decision to him.  He relied on the Supreme Court decision in the case of Imonikhe vrs Unity Bank Plc {2011} 12 NWLR 1262 p. 624 @ p. 649 paras D – G. learned counsel argued that the claimant having responded to the query and appeared before the disciplinary committee wherein he made representation, the claimant cannot complain of lack of fair hearing and his complaint that the disciplinary committee never at any time after the withdrawal of the criminal proceeding sit to deliberate on this matter and did not give him any notice that it was going to do so on a particular date, place or time is misplaced in the light of exhibit Jsc 005. The committee is not under any obligation as admitted by the Claimant to invite him to its meeting to take decision after hearing the claimant in his written and oral submissions. He relied on the cases of Ogwuche vrs B.S.C.S.C. {2014} 7 NWLR pt. 1406 p. 374 @ 394 para D and Akinola vrs V.C. Unilorin {2014} 11 NWLR pt. 885 p. 616 @ p. 647 paras A – E.

 

Under the sub topic of “Public Service Pension Board Law”. Learned counsel submitted that the Public Service Pension Board Law Cap p. 19 Laws of Bayelsa State, 2006 is not applicable to the claimant as the claimant does not fall into the category of persons affected by the law as seen in sections 29 that the clamant appear to be relying on. Learned counsel argued that the above provision refers to and apply to an officer of a parastatal. The claimant was a staff of the Judiciary and not staff of a parastatal and for section 29 to apply to him, he must show that he was a staff of a parastatal which he has failed to show. In the case of Board of management, F.M.C. Makurdi vrs Abakume {2016} 10 NWLR pt. 1521 p. 536 paras F – G. Parastatal was defined as an organization and serving government in an auxiliary capacity. Learned counsel argued that judiciary is not a parastatal.

 

Learned counsel submitted that assuming without conceding that section 29 of the Public Service Pension Board Law Cap P. 19 Laws of Bayelsa State 2006 was applicable to the claimant, the claimant’s compulsory retirement was as a result  of a disciplinary action taken against him and therefore cannot take benefit of the  said law. Learned counsel argued that the claimant did not lead evidence as to his year of birth to enable this Honourable court determine the forty five years requirement of section 29 {2}. Failure to place any material before the court to determine the age requirement of the claimant as provided by section 29 {2} of the law is fatal.

 

In conclusion, learned counsel urged this Honourable court to dismiss the claimant’s case with substantive cost.

 

SUBMISSIONS BY CLAIMANT’S COUNSEL

Learned counsel to the claimant in his final written address dated 31^st January, 2020 and filed on the 3^rd day of February, 2020 formulated two issues for determination. The two issues are:

 

a.       Whether the Claimant have not succeeded in proving the fact that the Defendant’s act of compulsorily retiring him from service was done in flagrant violation/breach of the principles of natural justice and the Public Service Pension Board Law Cap P19 Laws of Bayelsa State 2006?

 

b.      Whether the Defendant succeeded in establishing a case of misconduct known to law against the Claimant.

 

In arguing the first issue, learned counsel submitted that the Claimant has successfully proved that his compulsory retirement was not done in accordance with the principles of natural justice and the Public Service Pension Board Law. Under the sub topic “Breach of principles of natural justice”, Learned counsel cited the case of The State & Ors vrs Ogunoye & Ors {1995} LPELR – 3209 {SC} {1985} NWLR {pt. 4} 652. Learned counsel submitted that the Romans put the principles of natural justice in two maxims: nemo judex in causa sua and audi alteram partem. On the question of whether the principles of natural justice are applicable to quasi judicial and administrative proceedings like in the instant case, Learned counsel cited the case of Adeniyi vrs Governing Council of Yaba Tech {1993} LPELR 128 {SC} and submitted that it is trite law that the principles of natural justice/fair hearing is binding on administrative bodies as it is to judicial tribunals. Learned counsel argued that the claimant not only copiously pleaded the fact that he was a staff of the defendant who was compulsorily retired based on an inconclusive disciplinary proceeding but also led credible evidence. He referred this Honourable court to pargraphs 1 – 11 and 15 of the statement of claim and also paragraphs 2 – 12 of the written statement on oath of Claimant. The Claimant also led evidence to the fact that he was issued query which he responded to and was invited to appear before the statutory members of the defendant which he did. He was informed orally and in writing that as result of criminal proceedings pending against him the disciplinary proceedings will be discontinued pending the determination of the criminal case. After the criminal case against him was withdrawn, the defendant never sat to deliberate his matter again but rather issued him letter of compulsory retirement. Learned counsel contended that the operative word in exhibit “CW 009” is “discontinued” and the Black’s Law Dictionary 9^th Edition defined “discontinuance” as the termination of a law suit by a plaintiff; a voluntary dismissal or non suit. From the above definition it is clear that to discontinue involves termination of a process. From the wordings in exhibit “Cw 009” it is clear that the defendant actually stopped, ended or terminated the disciplinary proceedings because of the pendency of criminal proceedings against the Claimant on same allegations. Having discontinued the proceedings, the Defendant had at no time inform the claimant or invited him to appear before them after the withdrawal of the criminal proceedings before proceeding to retire the claimant compulsorily. The pertinent question begging for answer is whether the Defendant can validly rely on discontinued disciplinary proceedings to subsequently compulsorily retire the claimant? Learned counsel answered in the negative and also submitted that the Defendant cannot indict the Claimant in his absence as its against the rule of fair hearing.

 

Learned counsel submitted that the second cardinal principle of natural justice is that “one cannot be a judge in his own case”. This is to prevent the likelihood of bias. He relied on the case of FUT Yola vrs Maiwuya {2013} All FWLR {pt. 753} @ 765 paras D – E. Learned counsel argued that from the facts and circumstances of the instant case it would be impossible for the statutory members of the Defendant as contained in exhibit “JSC 005” to be free from bias because the same statutory members of the Defendant who accused the Claimant of gross misconduct are the same members who sat as members of the disciplinary panel. The attendance list in exhibits “004” and “005” lays credence to this fact and Dw1 also confirmed this position under cross examination as he admitted that the names in the attendance list in exhibits “004” and “005” are statutory members of the Defendant. It is clear that members of the disciplinary panel that is the statutory members not only had foreknowledge of the facts of the case but are interested parties. Learned counsel submitted that it is trite law that if a principle of natural justice is violated, it does not matter whether if the proper thing has been done the decision would have been the same; the proceedings will still be null and void. He referred to the case of Salu vrs Egeibon {1994} LPELR – 22997 {sc}. Learned counsel contended that the Chief Judge whose functions the claimant allegedly took over and performed is also a member of the disciplinary panel. Learned counsel urged this Honourable court to hold that claimant’s compulsory retirement is not in accordance with the principles of natural justice.

 

Under the sub topic “Breach of the provisions of public service Pension Board” learned counsel submitted that the Claimant’s purported compulsory retirement was not done in accordance with the provisions of section 29 {2} of the Public Service Pension Board Law Cap p19 Laws of Bayelsa State, 2006 and thus null and void. He relied on the case of Nawa vrs Attorney General Cross Rivers State {2007} LPELR 8294 {CA}. Learned counsel submitted that the Public Service Rules, 2009 is applicable to Bayelsa State and section 29 {1} of the Public Service Pension Board Law that govern the appointment of the claimant his employment was to be subsisting for 35 years of service or on attainment of 60 years of age. Claimant also led evidence to prove that he was not issued the three {3} months notice as required by law this was also admitted by Dw1 under cross examination that the claimant was not issued the three {3} notice because the claimant is not entitled to it. Learned counsel argued that the Defendant’s counsel argument in his final written address that the public service pension board law is not applicable to the claimant and the claimant does not fall within the category of persons affected by the law particularly section 29 (2), because the claimant was a judicial staff and judiciary is not a parastatal as used in section 29 {2} is misconceived. Learned ocusnel submitted that section 49 {interpretation section} of the Public Service Pension Board Law defines parastatal as follows “parastatal means any state government owned organization listed in the schedule of this law”. Item 18 on the schedule list staff of the judiciary and the magistracy except the judges as part of the parastatals and ministries covered by the law.

 

It is the contention of learned counsel that the defendant’s counsel submission that the Claimant’s compulsory retirement being as a result of disciplinary action, the law will not avail him simply because the law envisaged only compulsory retirement devoid of disciplinary action in not tenable in law as the courts have held that compulsory retirement of a civil servant compels the inference that the civil servant is being subjected to disciplinary action for the commission of a crime or misconduct. He cited the case of Nawa Vrs A.G Cross Rivers State {supra}. Learned counsel argued that in cases of compulsory retirement under section 29 {2} which is disciplinary based, the employer is to issue the employee three months notice.

 

Learned counsel submitted that defendant’s counsel argument that claimant’s failure to tender birth certificate for the court to determine the forty five years as stated in section 29 {2} is fatal and misconceived as the claimant is not under any obligation to disclose his age under 29 {2} but rather the obligation is on the Defendant to ascertain same even before purporting to compulsorily retiring him in the first place. Also the defendant never by their pleadings made claimant age an issue and so they cannot by their final written address raise that issue for the first time. Learned counsel argued that the cases cited by defendant’s counsel in arguing issue one in his final written address that the Claimant did not plead his contract of employment and terms and conditions of his employment which were breached and therefore his action is bound to fail does not apply to the case at hand. The authorities cited are talking about “wrongful dismissal” or “removal” which is entirely different from compulsory retirement. Learned counsel relied on the case of Ekeagwu vrs the Nigerian Army & Anor {2006} LPELR 7641 {CA}. Learned counsel submitted that assuming but not conceding that the said authorities applied to the instant case, the claimant still pleaded and led evidence to all the facts required of him by law. Claimant also pleaded and led evidence as to the terms and conditions of his employment which were breached.

 

Learned counsel submitted that there are no contradictions in claimant’s evidence as regards exhibit “Cw 010” as argued by defendant’s counsel. It has always being claimant’s evidence that he caused his lawyer to write exhibit “Cw 010” (letter dated 17^th October, 2013) and on the same date he served exhibit “ Cw 010” on the defendant, he was given a letter of compulsory retirement dated 6^th May, 2013 which retired him from service with effect from 30^th April, 2013.

 

Learned counsel submitted that the argument of defendant’s counsel that the claimant did not file reply to the defendant’s statement of defence is false as the claimant filed a reply to the Defendant’s statement of defence on the 14^th day of July, 2014 after leave for extension of time to file was sought and granted. In the said reply, the claimant specifically denied receiving the letter of compulsory retirement on the 23^rd day of May, 2013 and also the handwriting, name, signature and date on exhibit “Jsc 007”. Learned counsel argued that exhibit “JSC 005” which is the proceedings of meeting of the defendant purportedly held on 30^th day of April, 2013 was an afterthought concocted to give the defendant a defence. Nothing in exhibit “JSC 005” suggest that the claimant was given opportunity to state his case, call witnesses and ask questions as alleged in paragraph 5 {a} {iii} and {iv} of the amended statement of defence.

 

On the second issue, whether the Defendant succeeded in establishing a case of misconduct known to law against the Claimant? Learned counsel submitted that an employee’s wrong doing must be specific and he is entitled to a formal notice of such wrong doing and a hearing on that specific act. He relied on the case of Comptroller General of Custom vrs Gusau {2017} All FWLR {pt. 911} and argued that the Supreme Court decision equally applies to the Public Service of Bayelsa State as same rule is operational here. Learned counsel submitted that in the instant case, the claimant was not charged with any misconduct known to The Public Service Rules. By the provisions of Rule 030307 of the Public Service Rules, a query issued to an employee must contain the rule and regulation which the officer has broken and the likely penalty but this was not adhered to by the Defendant. Learned counsel argued that the word used in Rule 030307 {i} is “must” which is mandatory and in the absence of these vital pieces of information learned counsel urged this Honourable court to hold that the query issued to the Claimant is incurably bad.

 

Learned counsel argued that the acts which amount to either “misconduct” or “serious misconduct” were outlined under Rules 030301a –p and Rules 030401 and 030403 a – w and the allegation against the claimant which is swearing in the Local Government Chairmen does not constitute misconduct or serious misconduct as defined in the Public Service Rules. It is the contention of learned counsel that the Defendant failed to produce any evidence to show that the Claimant’s action of signing of documents is not within his schedule as argued by Defendant’s counsel and in the absence of such evidence, this Honourable court cannot speculate. Learned counsel submitted that the entire evidence given by the Defendant’s witness is hearsay and therefore not admissible in law as the Defendant’s witness admitted on cross examination that he was not and still not a member of the Defendant’s Commission and also admitted that he never took part or played any role in the activities that led to the compulsory retirement of the Claimant except of issuance of the query {exhibit CW 002}. The records of the Defendant before this Honourable court also reveals that the Defendant’s witness actually never took part, but rather it was the then secretary of the Defendant one Hon Justice I. N. Oweibo who was actively involved.

 

In conclusion, learned counsel urged this Honourable court to grant all the reliefs of the claimant as contained in the complaint and statement of claim.

 

DEFENDANT’S COUNSEL REPLY ON POINTS OF LAW

In response to the claimant’s final written address, the Defendant’s counsel filed a reply on points of law dated 23^rd June, 2020 and filed on 1^st July, 2020. Learned counsel in response to the Claimant’s counsel argument that the word “discontinued” used in exhibit Cw 009 to conclude that the claimant was not heard before he was compulsory retired is a misconception, which arose from his isolated and restricted consideration of exhibit Cw 009 to the exclusion of exhibit Jsc 004. Learned counsel submitted that exhibit Cw 009 which is the communication of the secretary of the defendant to the claimant has to be read with the superlative exhibit Jsc 004 which shows the decision taken by the Defendant in order to ascertain the context in which exhibit cw009 was written vis a viz the word discontinue so used in the said exhibit and which was so much relied by the Claimant. He cited the case of Leyland Nig Limited vrs Dixengoff (1990) 2 NWLR Pt. 134 p. 610 @ pg 624 para A – B and submitted that although the above authority is on contract, the principle enunciated therein apply to the instant case to the effect that both documents have to be considered in arriving at a conclusion on the issue of the defendant’s decision in exhibit Jsc 004.

 

In response to the Claimant’s counsel argument that one cannot be a judge in his own case counsel submits that this is a misconception as same tends to remove the power to discipline staff by the defendant. The powers of the Defendant are contained in Part II of the Third Schedule of the 1999 Constitution as amended, paragraph {6} {c} thereof to the effect that the Defendant has power to appoint, dismiss and exercise disciplinary powers over members of the judicial service of the state including the claimant. The claimant’s argument with regards to members of the defendant in disciplining the claimant is an attempt to displace the defendant of its constitutionally guaranteed power. By section 11 {i} {b} of the Interpretation Act, where an enactment confers a power to appoint a person either to an officer or to exercise any functions, whether for a specific period or not the power includes power to remove or suspend. Learned counsel argued that the Claimant in his pleading never pleaded any resemblance of an allegation of bias. The function of pleadings is for parties to define accurately the issues upon which a case is to be contested to avoid element of surprise by either party. He relied on the case of C.N. Okpala & Sons Ltd vrs Nigerian Breweries Plc (2018) 9 NWLR pt. 1623 p. 16 @ p. 26 paras B – E and Order 30 Rule 8 {i} of the National Industrial Court of Nigeria {Civil Procedure} Rules, 2017. Learned counsel argued that failure to plead and lead evidence of bias and particulars of how the members were biased, including the Chief Judge who, by exhibit Jsc 005 was shown to have recused herself is fatal. He cited the case of Buhari vrs Obasanjo {2005} 13 NWLR pt. 941 p. 1 @ p. 147 paras A – C and Order 30 Rule 8 of the National Industrial Court of Nigeria {civil procedure} Rules, 2017.

 

Learned counsel in response to the claimant’s argument that the provisions of section 29 {2} of the law applies to the claimant and tried to argue that the definition of parastatal in the definition section of the law applies to the Claimant, in that item no 18 on the schedule of the law list staff of the judiciary except the judges as part of the parastatals and ministries covered by law is a misconception. Learned counsel reproduced section 318 of the 1999 constitution as amended and argued that it is a misconception to argue that section 29 (2) applies to the Claimant, a staff of the Defendant, in the face of the express mention of “A parastatal” in section 29 (2) the exclusion of Ministry, Extra Ministerial Departments, staff of the judiciary and the magistracy and others. The express mention of one thing means the exclusion of others. He relied on the cases of A.G. Lagos State vrs A.G. Federation {2014} 9 NWLR pt. 1412 p. 217 @ p. 275 paras F – G and Board of Management, FMC Makurdi vrs Abakume {supra} @p. 567 -568 para H – B. Learned counsel submitted that applying section 29 {2} of the Public Service Pension Board Law of Bayelsa State and by parity of reasoning, the mention of parastatal in the said law is to the exclusion of ministries, extra ministerial departments, and staff of the judiciary to which the claimant belong.

 

In response to Claimant’s argument at page 16 paragraph 4.36, learned counsel submitted that the claim that the Claimant was given opportunity to state his case, call witnesses and ask any questions were copiously pleaded by the Defendant and same was not denied nor controverted and therefore deemed to be admitted. In response to Claimant’s argument that exhibit JSC 005 was an afterthought concocted to give the defendant defence. Learned counsel submitted that this is an allegation that borders on forgery which is criminal in nature and requires to be pleaded with particulars and proved strictly that is proved beyond reasonable doubt. It is not enough to raise any allegation against or challenge exhibit Jsc 005 at the address stage when same allegation was not pleaded, to spring same as a surprise to the defendant. He relied on Order 30 Rule 8 of the National Industrial Court of Nigeria {Civil Procedure} Rules, 2017 and the case of Agi vrs P.D.P [2017} NWLR pt 1595 p. 386 @ p. 470 para G.

 

In response to Claimant’s argument on issue two in respect of the query issued. Learned counsel submitted that for the Claimant to succeed in objection on the query he must plead and prove any vitiating element capable of vitiating the said query. In the instant case, there was no misrepresentation, deceit or misapprehension of the query by the Claimant who understood and clearly responded to the misconduct leveled against him. Learned counsel submitted that the claimant’s objection to the query is as to form and the claimant’s argument is derived from Rule 030307 {ii} of the Public Service Rules which provides the form of a query thus: “the query, or preliminary letter, shall be given in the format shown in appendix ii” and therefore submit that the query is incurably bad. Learned counsel submitted that this argument is a misconception in light of section 23 of the Interpretation Act, Cap 123 LFN, 2004 which provides that where a form is prescribed by an enactment, a form which differs from the prescribed from shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not a material particular and is not calculated to mislead.  He relied on the case of Board of Management, FMC Makurdi vrs Abakume {supra} @ p. 574 para C – F where the Court of Appeal ruled on the format of a query in Rule 030307. In response to the Claimant’s argument that the entire evidence of the Defendant witness is hearsay is displaced in the light of Exhibit JSC 004 and JSC 005 which shows the Defendant’s witness in attendance.

 

In conclusion, learned counsel urged this Honourable court to dismiss the claimant’s case with substantial cost.

 

COURT’S DECISION

I have carefully looked and perused at all the processes filed by parties as well pondered on all the oral and documentary evidence adduced before this court. I have also listened to the witnesses who testified in this suit, who testified under oath and I keenly observed their demeanour, and also I have judicially and judiciously evaluated the exhibits tendered and admitted by this court. I have also painstakingly read, analyzed the submissions of the learned counsel to the parties on the issues they raised in the final written address. And I decided to merge all the issues raised and formulated two issues for determination to wit:

a.       Whether the retirement of the Claimant from the employment of the Defendant was done in accordance with the Public Service Rules regulating the Claimant’s contract of employment and in observance of the Claimant’s right to fair hearing.

 

b.      Whether from the evidence adduced and circumstances surrounding this case, the Claimant is entitled to the reliefs sought.

 

The law is settled already that the burden of proving wrongful termination or dismissal of a contract of employment rests on the shoulders of the employee who claims such wrongful action of the employer. Failure on the part of the employee to plead and prove the contract of employment is indeed fatal to his case. See Suleiman v Civil Service Commission of Ondo State & ors (2015) LPELR – 41796 (CA); NEPA v Adeyeri (2006) LPELR – 5932 (CA).

In Morohunfola v Kwara State College of Technology (1990) 4 NWLR (pt. 145) pg. 506; the court made it clear on how such facts can be pleaded. It is essential that the claimant pleads in his statement of claim the fact that there was a contract of employment between him and the defendant. He is to spell out in the statement of claim what the terms of the contract were or the aspect which has been breached. To my mind, it is sufficient enough if the claimant is able to spell out the facts in a manner that a reasonable man is able to comprehend, without any equivocation that there exists an employment relation between the parties. A cursory look at the particulars of the claimant’s claim, particularly paragraphs 1, 12, 13, 14 and 15 shows that the claimant indeed pleaded some terms of his contract of employment.

The position of the law as espoused in MOROHUNFOLA’s case and indeed in the authorities on this head is to prevent the court from speculating on the existence of a contract of employment and its particulars between the parties involved.

The Claimant also went on to plead the alleged breach of the terms when he stated that he was served with an interdiction letter and later on letter of retirement, without following the disciplinary measures by not allowing him to defend himself in line with the disciplinary procedure outlined. Also that he was not given fair hearing.

From the evidence before this court, it is not in doubt that the employment relationship between the parties herein, is one clothed with statutory flavour, strict adherence to the provisions of the laws is hereby ordered. The cases of Iderima vrs Rivers State Civil Service Commission (2005) 16 NWLR (pt. 951), pg 378; UBA Plc vrs Oranuba [2013 LPELR -20692] CA; Baba vrs N.C.A.T.C [1991] 5 NWLR {Pt.192} 388 at 418 – 419. It should be noted, though it is been trite that it is the claim of the plaintiff that vest jurisdiction on the court, after careful listening and perusal of all the document before me, this court has warned itself and therefore will restrict itself to the issue of the retirement of the claimant, therefore it is my prerogative to confirm if the Claimant was duly retired from his contract of employment.

Again the law is very clear that the burden of proof in civil case is on the claimant to first and foremost lead evidence in proving his case. A party who assert must prove on the authority of section 131 (1) of the Evidence Act, 2011; A.G Rivers State vrs A.G Bayelsa State (2013) 3NWLR p. 123. However, this burden of proofs is on the balance of probabilities based on the preponderance of evidence which may shift from one party to another depending on the evidence. The burden will rest on the party that would fail if no evidence were led on either side. See Sakati vs Bako & ANOR (2015) LPELR 24739 (SC). When the claimant, by his cogent and clear evidence prove the acts or omissions of the defendant which constitute the infraction, then the burden will shift to the defendant. See Ohochukwu vrs A.G. Rivers State (2012) 6 NWLR p. 53. It is worthy of note that the burden of proof in this proceeding must be connected to the issues raised in the pleadings and the entirety of evidence adducted at the trial. The Claimant alleges that he was employed by the Defendant hence the issuance of exhibit CW 001 and CW 008 which is the offer of appointment letter. Termination of an employment by the employer cannot be wrongful unless it is in breach of contractual terms or if the reason for termination is untenable. See UBA Plc vrs Oranuba [2013] LPELR–20692 CA.

Again it is an established principle of law that parties are bound by the express terms of their agreement. See the case of Olanrewaju vs Afribank [Nig] Plc (2001) 13 NWLR (pt. 731)691 @ 712. Also, where the terms of the contract of employment are not written down it can be infer from the conduct of parties this is based on the definition of employment by the Labour Act. And in construing the relationship of parties in any contract, the court must confine itself to the plain words and meanings that can be derived from the terms of the contract. See Ibama vrs Shell Petroleum Development Company of Nigeria Ltd (2005) 17 NWLR (pt. 954) p 364 @ p378 – 379 paras G – E; Oak Pension Ltd vrs. Olayinka 2017 LPELR 43207 [CA].

Having stated the above position of the law, I will now proceed to deal with the case at hand and all the preliminary issues contained therein. It’s a fact before this court that the Claimant was employed by a letter of appointment dated 23^rd September, 1987 to the post of a Clerical Officer by the defunct Rivers State of Nigeria. He rose through the rank and was promoted on Salary Grade Level 04 with effect from 15^th August, 1984. See exhibits CW 001and paragraphs 12 of the Statement of Facts and CW1 Witness Deposition on Oath {paragraph 2}.

The claimant received a query letter with reference number BYS/JUD/CCA/CR. 001/Vol. 1/46 dated 13^th August,  2012 from the office of the Chief Registrar,  Customary Court of Appeal for an alleged offence of misconduct  and he subsequently answered the same query within the stipulated time. The claimant was later on interdicted and placed on half salary. And he was subsequently charged and arraigned before Sagbama High Court before Hon. Justice E.T. Okara in Charge Number SHC/4/2012 in State vrs Andrew Jonathan. And in a ruling, the claimant was discharged on the said charges on the 21^st February, 2013 vide exhibit CW 006. Consequent upon this, the Claimant now wrote a letter to the secretary JSC vide a letter dated 14^th March, 2013 and applied for lifting of his interdiction (Exhibit CW 009). Instead of yielding to the request of the claimant, the claimant received a letter dated 6^th May, 2013 with reference number  BY/ JSC/ PP. 212/Vol 1./92 terminating his appointment with effect from 30^th April, 2013 (Exhibit CW 007). The claimant still wrote an appeal letter through his lawyer to the office of the Secretary JSC dated 17^th October, 2013 (Ext CW 010) but all proved abortive.

It is of legal importance to note that the document which prescribes the steps and procedures to follow with regards to discipline of the claimant is the Public Service Rules. And employment is said to have statutory flavour when it is protected or regulated by the statute as in the case of the claimant in this case. The claimant as a civil servant with the Defendant the provisions of the Public Civil Service Rules which governed the Claimant’s employment must be strictly adhered to. See Eperoku vrs University of Lagos (2004) 16 WRN 90; Nitel vrs Ocholi (2001) 10 NWLR (pt. 720) 188. And the applicable rules applicable in the case of the claimant are PSR 030303 of the Public Service Rules.

It is of legal importance to state here that by section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Claimant’s appointment being one clothed with statutory flavour he cannot be compulsorily retired without following the due process of law.

The question to be asked, what is the legality of the action taken by the Defendant by interdicting the Claimant and later retiring the Claimant from his employment? The content of Ext. CW 007 has a tinge of disciplinary flavour which requires the observance of the Public Service Rules and Regulations. The Claimant who ought to retire upon attaining the mandatory retirement age of 35 years in service or 60 years of age was summarily retired by the Defendant. Summary retirement of a Public Servant compels the inference that the Public Servant is being subjected to disciplinary action for the commission of any crime or misconduct. If any disciplinary action is to be taken against the Claimant, it must be in full compliance with the relevant statute, rule or regulation. See Iderima vrs RSCSC (supra) and Shitta Bey vrs Federal Public Service Commission (supra). It is a well settled law that when a statute directs that certain procedures be followed before a person can be deprived of his right, whether in respect of his person or office, such procedure must be strictly followed. See UNTHMB vrs Nnoli (1994) 8 NWLR (pt. 363) 376; NEPA vrs Ango (2001) 15 NWLR (pt. 737) 627.

It is of legal importance to note that interdiction or compulsory retirement  in contemporary Nigerian jurisprudence refers to the special cases of discipline for repudiation by the employee. It is usually the power exercisable by the employer as a disciplinary action usually attributable to acts of misconduct. It is relevant that the reasons for which an employer abruptly brings a contract of employment to an end must be stated and justificable. See Abomeli vrs NRC (SUPRA); Savannah Bank Nig. Plc vrs Fakokun (2002) 1 NWLR (Pt. 747) 544.

 

Parties are in agreement that the contract of employment of the claimant is one with statutory flavour. It is of legal importance to note that in a contract with statutory flavour, the procedure for employment and discipline including termination and dismissal of an employee are clearly spelt out. The settled position in such employment is that it must be terminated in the way and manner prescribed by the relevant statute or rules. That position follows from a general rule that when a statute or rules directs that a certain procedure be followed before a person can be deprived of a right such a procedure must be strictly followed otherwise the court will declare void any act done not in accordance with the prescribed procedure. See Shittabey vrs FCSC (supra); Longe vrs First Bank Nigeria Plc (2010) 6 NWLR (pt. 1189) 3.

 

Furthermore in Jirgbagh vrs UBA Plc (2000) FWLR (PT. 26) 1790, Chukwumah Eneh, JCA summarized the general position when failure to comply with contractual procedure for determination will constitute a breach in the following:

 

“(i)       Where the contract itself, though not regulated by any legislation, has made provision for the procedure to be followed when termination is for misconduct. The summary dismissal of the employee in breach of the contractual procedure would render the dismissal wrongful

 

  (ii)     Where a statute or a subsidiary legislation provides the procedure to be followed when   the dismissal of an employee is on disciplinary grounds, the requirement of the statutes must be complied with when the removal of the employee is for misconduct, otherwise the dismissal would be a nullity.

By the Public Service Rules, which is a subsidiary legislation, the Defendants has the power to engage, appoint, promote, dismiss and terminate the employment of any of its staff. The rules have constitutional force flowing from the fact that it derives its status from Part II of the Third Schedule of the CFRN 1999 (As amended). And the persons over whom they apply are invested with legal status which guarantees strict adherence to the statutory provisions.

It is trite that once a subsidiary legislation conforms to the principal laws, which provide the source of their existence, such legislation becomes relevant. See the cases of Governor of Oyo State & Ors vrs Folayan (1995) 8 NWLR (PT. 413) PG 292; Osadebe vrs A.G Bendel State (1991) 1 NWLR (PT. 169) PG 525. To that effect, I shall rely massively on the provisions of the Public Service Rules. I have taken this time to explain this position in order that the court’s decision herein and its deep reliance on rules will be appreciated. It is an elementary principle of law that in a matter for wrongful termination of employment (like in this case) the burden is upon the employee who alleges the wrongful termination to prove how the employer breach the contract of service in determining the employment. See Nigerian Gas Co. Limited vrs Dudusola (2005) 18 NWLR (PT. 957) 292.

The method of establishing the breach of the contract of service depends largely on the type of employment which is classified into (i) master/servant employment, (2) where a servant holds employment at the pleasure of his master and (3) an employment clothed with statutory flavour. From the examination of the evidence before this court, it is not in contest that the Claimant’s employment with the Defendant is one which enjoys statutory flavour as it relates to employment in the Bayelsa State Public Service.

The law is settled on the principle that where the contract of service is protected by statute and the removal of a person is predicated upon compliance with statutory provisions, non compliance with the statutory provisions, renders the removal ultra vires and void. See Nnadi vrs National Ear Care Centre & ANOR (2014) LPELR-22910 (CA); Ekperokun vrs University of Lagos (1986) 4 NWLR (PT. 34) pg 162.

The law is trite that in a case when a public servant is disciplined and reasons are given for the disciplinary action the onus is on the master in this case the Defendant to prove the alleged misconduct.

In the case of Nepa vrs Adeyemi {2007} 3 NWLR {Pt. 1021} 315, pp. 331 – 332, paras H – B, ratio 2:

“An employer is not obliged to give reasons for the dismissal of an employee. But once reasons are given and they are disputed in court, the onus lies on the employer to justify the reasons by evidential proof. The proof required here is proof beyond reasonable doubt as stipulated by section 137 of the Evidence Act…”

Furthermore, in the case of SPDC {Nig.} Ltd vrs Olarewaju {2003} FWLR {pt. 140} 1640, pp. 1667, paras B – C &F, the court held thus:

“An employer is not bound to give reason for terminating the employment of his employee but where he gives reason onus lies on him to establish that cause or give reasons at the trial and to the satisfaction of the court.”

From the above decided legal authorities, the onus is on the Defendant to prove the reason for summary retirement of the Claimant as per Exhibit CW 007 which stated the offences alleged and the administrative investigation by the office of the Defendant, meeting of 12^th and 13^th December, 2013 and 30^th April, 2013. The Defendants who alleges, own the burden of proving that the facts contained in the retirement letter ever existed.

The relevant question to answer at this stage is: did the Defendant follow the laid down rules for the discipline of the Claimant?

From the evidence before this court the Claimant was accused for misconduct. It was alleged that the Claimant conducted the swearing of the Chairmen of Sagbama, Ekeremor and Kolokuma/Opokuma Local Government Councils on the 13^th day of April, 2012. In consequence of this, the Defendant caused Exhibit JSC 001 to be served on the Claimant {query}. And in exhibit JSC 001 {which is the reply to the query} the Claimant admitted that he signed Ext. JSC 008 A – F which are the oath of allegiance and oath of office for the Chairmen of Sagbama, Ekeremor and Kolokuma/Opokuma Local Government Councils. But that it was an error made out of ignorance without any atom of intention whatsoever. He said he did same believing that he was carrying out his legitimate duty as a commissioner for oath. Therefore its certain that the Claimant was issued with a query and that he made a written representation responding to the said query.

Furthermore, the Claimant in paragraph 4 of his statement of claim filed before this court on the 21^st November, 2013 and paragraph 5 of his written statement on oath admitted that the Defendant set up a disciplinary proceedings against him headed by one Chief Serena Dokubo Spiff Esq, wherein he made both oral and written representations on the 12^th and 13^th days of December, 2012. Therefore, its not true when the Claimant argued that he did not made any representation before the committee apart from his reply to the query. And also its not true when the Claimant argued that its not right for the members of the JSC to sit over his case.

The provision of section 22 of the Local Government Law Cap 10 Laws of Bayelsa State, 2006 is very explicit. The power to swear in local government chairmen including those of Sagbama, Ekeremor, Kolokuma/Opokuma Local Government Councils is the exclusive preserve of the Chief Judge of Bayelsa State. Therefore for counsel to the Claimant to state that the act of Claimant is not a misconduct covered pursuant to PSR 030301 a – p and PSR 30401 and PSR 030403 a – w is a total misconception of the law.

Its on record that the Chairman of the Defendant who also doubles as the Chief Judge of Bayelsa State and a member of the committee recused herself in the meetings which deliberated on the disciplinary proceedings of the Claimant as indicated in exhibits JSC 004 and JSC 005 respectively. All these are in tandem with the rules of fair hearing. Because the allegation against the Claimant borders on the usurpation of powers of the Chief Judge of Bayelsa State. And the Claimant has not raised any objection as to the membership of any member in the panel. To bring that issue at this stage is an afterthought. I so hold.

In Garba & Others vrs University of Maiduguri {1986} all N.L.R. p. 149, pp. 207, Obaseki J.S.C. held:

“The rules requires that a person liable to be directly affected by proposed             administrative acts, decisions or proceedings be given adequate notice of what is proposed so as to give him an opportunity to make representations, and         effectively prepare his own case and to answer the case he has to meet”.

 In the case of U.T.H.N.B. vrs Nnoli {1994} 8 NWLR {Pt. 363} Onu JSC held thus:

“When a statute directs that a certain procedure be followed before a person can be             deprived of his right, whether in respect of his person, property or office, such a   procedure must be strictly followed: otherwise, the Court will declare void any act      done not in accordance with the prescribed procedure” The Court went further to      hold at p. 413 that “the non-observance in the process of reaching any decision      renders the decision itself a nullity”

See also Okocha vrs C.S.C., Edo State {2004} 3 NWLR {Pt. 861} p. 582 pp. 509 -510, paras E - C.

It is my view that fair hearing in this case does not mean or limited to giving the Claimant an opportunity to appear before the Investigative Panel. It means more than that as OPUTA JSC (of blessed memory) put it in the case of Garba & Ors vrs University of Maiduguri (1986) N.S.C.C. PG 245, that the panel must not hear evidence or receive representations behind the back of the appellants. See also Adeniran vrs N.E.P.A. (2001) 47 W.R.N. 145 at 158 – 159.

The law is settled that any public body charged with the powers to employ staff must act within the Statute or Regulations creating it and ensure that it mandatorily abides with the provisions of that Statute and or Regulation governing its procedure for discipline or dismissal of its staff as any breach thereof would render the disciplinary measure meted out, null and void. See Adeniyi vrs Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426.

 

Therefore, from the records of this court and the evidence placed before me, the Claimant was given every opportunity to defend the allegations made against him. Its on record that he made both oral and written representations before the panel. And the Claimant in the cause of cross examination admitted that administering oath of allegiance and oath of office is not within his schedule of duty. The claimant made heavy weather on the fact that the decision to compulsorily retire him was taken in his absence. There is no provision in the Public Service Rules which states that the Claimant must be present before the panel can take any appropriate sanction against the Claimant. The Claimant appeared before the panel and states his side of the story. And by Exhibit JSC 004 the panel decided to delay the conclusion of the matter because then the Claimant was standing trial before the High Court Sagbama. But from the record all issues regarding the disciplinary proceedings were concluded. What remains at that time was the decision of the panel and withdrawal of charges is not the same as acquittal. The sole aim of that withdrawal of the criminal charge against the Claimant was for the purpose of dealing with the matter administratively as indicated in exhibit CW 006.

 

Furthermore, parties also had joined issues on the provisions of section 29 {2} of the Public Service Board Law Cap p.19 Laws of Bayelsa State, 2006, that the Claimant is entitled to three months notice in writing having attained 45 years of age before the Defendant could retire him compulsory. I wish to state here that the Claimant has failed in his pleadings to state his age for this court to evaluate and see whether he is entitled to benefit from this provision of the law or not. And this court cannot speculate on the age of the Claimant.

 

On the issue of query issued to the Claimant {Ext. CW 003} that same has not complied with the format in PSR 030307 {ii} of the Public Service Rules, what is of essence is the substance and not format. The Claimant had understood the allegations labeled against him. And he had responded to the said allegations. See Koomlong I. Mlaphan vrs University of Jos Consultancy Limited {2013} LPELR – 21904 {CA}; Iderima vrs Rivers State C.S.C. {2005} 16 NWLR {pt. 951} 378.

 

On Ext. JSC 004 and JSC 005, the Claimant alleged that same was prepared so as to serve as a water shaded defence for the Defendant, I have carefully perused at the pleadings filed by the Claimant and I cannot see a single averment where the Claimant raised this issue in his pleadings. Therefore, its an afterthought for counsel to the Claimant to raise this issue at an address stage. This is because its trite that counsel’s written address no matter how brilliantly couched or flowerly decorated cannot take the place of pleadings. See Ayorinde vrs Sagunro (2012) 11 NWLR pg 40 SC; Ishola vrs Ajiboye {1998} 1 NWLR {pt. 532} pg 71.

 

In view of the foregoing facts enumerated ab initio, its my ardent believe that the retirement of the Claimant from the employment of the Defendant was done in accordance with the Public Service Rules regulating the Claimant’s contract of employment and in observance of the Claimant’s right to fair hearing. I therefore resolved the first issue in favour of the Defendant, I so hold.

 

Having resolved the first issue in favour of the Defendant I felt there is no need to delve into issue two as doing that will amount to an academic exercise.

 

In all, judgment is entered in favour of the Defendant, the claimant having failed to prove his case, the case of the Claimant is hereby dismissed. Any party who feels dissatisfied with the judgment of this court has the right of appeal within 30 days. I declined to award any cost.

 

Judgment is hereby entered accordingly.

 

 

 

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

 

PRESIDING JUDGE

 

YENAGOA DIVISION

 

NATIONAL INDUSTRIAL COURT OF NIGERIA