IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA
DATE: Tuesday, 17th May 2022 SUIT NO: NICN/OW/25/2021
UZOMA ONONOGBO CLAIMANT
NATIONAL YOUTH SERVICE CORPS
ATTORNEY GENERAL OF FEDERATION DEFENDANTS
· DR. K.C. UZOECHI FOR THE CLAIMANT.
· C. N. ORU AND O.P OMURU FOR THE 1ST DEFENDANT.
· M.L SHIRU (MRS.) AND S.C. NWIZU FOR THE 2ND DEFENDANT.
1. This claimant was employed by the 1st defendant on 11/12/2006, and after several years of dedicated service, he was eventually posted to the 1st defendant’s garment factory in Mgbakwu, Anambra State on 9/7/2018. According to the defendants, the claimant supposedly frequently absented himself from work without reasonable excuses which led to several reports by the head of the garment factory directly to the Director General of the 1st defendant corps. He received a query letter from the 1st defendant dated 10/10/2018 (Exhibit D3) through the said head of the garment factory for his absenteeism and attitude towards his work followed shortly by a suspension letter for 3 months without pay. He was subsequently served a letter of involuntary retirement which supposedly miffed the claimant as he considers this to be an affront to his right to fair hearing alleging that the 1st defendant never gave him any right of audience or an opportunity to be heard by a disciplinary committee to defend those allegations made against him before his recommendation for involuntary retirement. After several letters of appeal and efforts to the 1st defendant for the reversal of the said action failed, he approached this court to seek the reliefs contained in his writ of complaint.
CLAIMANT’S RELIEFS AGAINST THE DEFENDANTS:
2. The claimant’s complaint and accompanying processes were filed on 7/6/2021. Within, he seeks the following reliefs:
i. A declaration that the purported retirement of the claimant from the service by the 1st defendant vide letter dated 11th March 2021 is unlawful, unjust, null and void and of no effect whatsoever.
ii. A declaration of court that the retirement from service of the claimant by the 1st defendant without first giving him the opportunity to be heard is a violation of his fundamental right to fair hearing and as such unlawful, null and void.
iii. An order of court setting aside the retirement of the claimant from service as set out in the 1st defendant’s letter of 11th March 2021.
iv. An order of court reinstating the claimant to his appointment and position in the 1st defendant as a staff thereof together with all his accumulated salaries, allowances, emoluments, promotions and all other benefits due and accruable to him.
N50,000,000. (Fifty Million Naira) being damages for wrongful retirement.
vi. Ten percent (10%) interest on the judgment debt from the date of judgment till the judgment debt is liquidated.
vii. An order of injunction restraining the 1st defendant from retiring the claimant from service until his due date of retirement.
3. The claimant opened his case on 15/2/2022 relying on the testimony of a lone witness (C.W.1 – the claimant himself). He tendered 10 documents in all (exhibits C1 - C10). CW1 was crossed examined by the 1st defendant on the same day, and the claimant closed his case that same 15/2/2022.
4. It must be noted however, that upon receipt of the 1st defendant’s statement of defence, the claimant filed a reply and a further statement on oath on 10/12/2021. In addition to this, the claimant’s counsel filed 2 separate responses to the 1st and 2nd defendants’ separate preliminary objections on 26/10/2021.
5. Meanwhile, the 1st defendant filed its memorandum of conditional appearance on 12/7/2021. Its statement of defence and accompanying processes were however filed subsequently on 23/9/2021 out of time but were duly regularized with the leave of this court. It also caused to be filed, a notice of preliminary objection on 10/9/2021. By the order of the court however, the arguments on the preliminary objection were deferred to final addresses for the purpose of allowing the court to hear the suit on its merit.
6. The 1st defendant opened its case on 15/2/2022 and successfully closed same on the same day, calling in 2 witnesses (Adetokumbo Johnson Dairo and John Kwaghe) to testify and tender 13 documents in all (exhibits D1 to D13).
7. Curiously, the 2nd defendant filed a memorandum of conditional appearance on 23/9/2021 accompanied by a statement of defence and a notice of preliminary objection. He however did not produce its witness to adopt the statement of defence and sworn deposition. These pleadings must thus be deemed to have been abandoned by the 2nd defendant as no evidence were led in prove of the averments made therein.
8. At the conclusion of trial, this court had on 15/2/2022 ordered the parties’ counsel to file their respective final addresses on or before 5/4/2022 by which date they shall be duly adopted for the purpose of making a judgment. The 1st defendant’s counsel filed his final written submission and arguments on 8/3/2022. The claimant’s counsel also successfully filed his own final written arguments and submissions on 30/3/2022. This prompted a response on points of law by the 1st defendant to be filed way out of time, on 10/5/2022. The 2nd defendant also filed a final address out of time on 6/5/2022 without the appropriate leave of this court.
9. Meanwhile, this court had adjourned the case for adoption of all final addresses on 5/4/2022. This court shall not be bothered about those last 2 processes filed out of time since the defendants neither sought for any leave to extend the time for filing them out of time or attaching any evidence of payment of default fees for late filing. Granted that the 5/4/2022 contemplated for the adoption of final addresses fell during this court’s easter and sallah public holidays, this did not exonerate the defendants from taking the desired timeous steps for filing their processes and or for making the necessary applications. Accordingly, the 1st defendant’s reply on points of law filed on 10/5/2022 and the 2nd defendant’s final written address filed on 10/5/2022, shall not be considered in this judgment and same are hereby jettisoned. There must be an end to litigation as parties are bound to keep with the rules of this court to ensure this.
10. Consequently, the case was eventually adjourned to today, 17/5/2022 to enable these parties’ legal representatives adopt those respective final written arguments and submissions which were duly filed and served within the allottable time, whereupon this court immediately pronounced this judgment.
11. As gleaned from the claimant’s pleadings, he is a Nigerian citizen and resident at Obokwu Village, Avu, Owerri West Local Government Area of Imo State whereas the 1st defendant is an agency of the government of the Federal Republic of Nigeria. The 2nd defendant is the chief legal officer of the federation under whose supervision the 1st defendant is said to carry on its functions in Nigeria.
12. According to the claimant, he was employed by the 1st defendant on 11/12/2006 and after 2 years of probationary service his employment was confirmed, and he was promoted subsequently after years of service.
13. The claimant averred that his employment with the 1st defendant is statutory in nature and as a civil servant, his retirement age is 60 years. He had never been booked for any misconducts save for when he was absent from work due to his wife’s protracted ailment, for which he was suspended for a period of 3 months without pay.
14. The claimant averred that he resumed duty on 26/6/2020 and till the filing of this suit, he has not been paid his salaries by the 1st defendant. He was later purportedly retired involuntarily by the 1st defendant on 11/3/2021 without any opportunity to know the allegations made against him or to even to defend himself, which he averred to be in contravention of PSR 030601 and 030305.
15. Sequel to the said retirement, the claimant averred that he sent a pre-action notice to the 1st defendant, and a letter of appeal to the presidency. Notice was given to the 1st defendant to produce the originals of those alleged letters.
16. The claimant further averred that the said retirement by the 1st defendant has caused untold hardships on him and so he urged this court to grant his reliefs.
17. Before closing his case, the claimant tendered 10 documents in evidence in this suit. These are:
i. Offer of appointment letter dated 11/12/2006 (Exhibit C1).
ii. Confirmation of appointment dated 23/2/2009 (Exhibit C2).
iii. Letters of promotions dated 19/6/2010 and 3/10/2017 respectively (Exhibit C3 (a) and (b)).
iv. Declaration of age dated 13/6/2007 (Exhibit C4).
v. Letter of resumption of work dated 20/8/2020 (Exhibit C5).
vi. Letter of retirement from service dated 11/3/2021 (Exhibit C6).
vii. Pre-action notice dated 30/4/2021 (Exhibit C7).
viii. Proof of delivery of letter of appeal dated 30/4/2021 (Exhibit C8).
ix. DHL receipt dated 5/5/2021 (Exhibit C9).
x. DHL receipt dated 10/5/2021 (Exhibit C10).
18. As stated earlier, the claimant was duly cross-examined by the 1st defendant’s counsel and portions of the answers given in response may be referred to by this court in the course of evaluating the evidence in this suit.
1st DEFENDANT’S EVIDENCE:
19. The 1st defendant indeed denied all the averments contained in the claimant’s statement of facts save for facts expressly admitted. The 1st defendant however admitted that the retirement age from the public service of the country is 60 years, and that the claimant was born of 20/8/1974.
20. The 1st defendant averred that the claimant had a little regard for his duties with the 1st defendant, and that he breached several terms and conditions of his employment which is contrary to his acceptance letter dated 24/1/2007. The first breach, according to the 1st defendant, was on 18/11/2009 when he had applied for a transfer from his location in Ogun State to Imo State his hometown, which was granted, nonetheless.
21. The 1st defendant stated that the claimant had also in less than a year of the said transfer, applied for further transfer to Rivers State on 10/1/2011 on the flimsy ground that he was having some bad dreams. This time, his application was however rejected. The claimant repeated this same application on 20/3/2012 but same was refused.
22. The claimant was subsequently transferred to the 1st defendant’s garment factory in Anambra State on 9/7/2018, but soon thereafter, reports dated 12/10/2018 and 13/5/2019 were sent by the head of the garment factory to the National Directorate Headquarters of the 1st defendant, indicating that the claimant was frequently absent from work.
23. In the pendency of the said reports of dereliction of duty, the claimant once again applied for a transfer from Anambra State to Imo State by letter dated 30/5/2019. When his application was declined, the claimant used one Chief (Dr.) Bajika Sarki Danladi to influence his transfer which is accordingly an infraction of the PSR 030427.
24. According to the 1st defendant again, the claimant only reported for duty 3 times from the date he was transferred to the garment factory of the 1st defendant at Mgbakwu in Anambra State. The first time he reported after his posting on 16/7/2018, he requested for and was granted casual leave only for him to proceed to the NYSC orientation camp from 24/7/2018 to 14/8/2018 presumably on a frolic. The claimant then stayed away from duty from 15/8/2018 until the 1st week of September 2018 when he reported to submit a medical report and left the same day. He later complained that his baby needed emergency treatment. He was thereafter not heard from until the 4th week of September 2018 when he called the head of the garment factory by phone to inform him that he lost his baby.
25. On 1/10/2018 the claimant re-appeared again and submitted his posting letter and record of service to the head of the garment factory and left again on that same day. It was on this day that a query dated 10/10/2018, was served on him. Undeterred, the claimant was again not seen at the 1st defendant’s garment factory from 11/10/2018 until 26/6/2020, a period of 20 months. Upon his resumption on 26/6/2020 the head of the garment factory sent a letter titled “resumption of work” dated 20/8/2020 stating the period of his absenteeism and eventual resumption.
26. The 1st defendant averred that the claimant attempted to serve a second query letter dated 9/5/2019 which was dispatched to his last registered known address at plot 6 Ademola Oki Street, Aguda, Surulere, Lagos. The letter returned undelivered as the address could not be found and the claimant’s whereabouts were unknown.
27. The 1st defendant further stated that the claimant was suspended from work with effect from 18/8/2020, and so it was untrue that the claimant resumed duty on 26/6/2020 as he claimed. The claimant was given the letter of query for absenteeism dated 10/10/2018, which he duly acknowledged even in his letter dated 17/3/2021 written to the 1st defendant in appeal to his involuntary retirement. The claimant failed to respond to that query to date.
28. The head of the garment factory of the 1st defendant constituted a disciplinary committee on 31/10/2019 to consider the allegations against the claimant and submitted its report by 2/11/2019. The committee tried to contact the claimant via his known cell phone number 08034060484 but same was switched off and his whereabouts unknown. Undeterred, the committee went ahead to consider the complaints made against the claimant in his absence and thus observed that the claimant did not answer the query letter dated 10/10/2018 served on and acknowledged by him. Whereas the initial letter dated 13/5/2019 was returned unserved because the claimant could not be reached at his last known address.
29. Thereafter the committee submitted its report on 5/11/2019 wherein it stated that due process had been duly complied with in line with PSR 030307 (i), (ii), and (iii), and that the claimant contravened PSR 030402(e) which ordinarily should attract a dismissal.
30. The senior staff committee of the 1st defendant, in its magnanimity, considered and converted the said dismissal recommended in the report, to a retirement (as allowed under PSR 030307 (iv) and (xii), due to the harsh effects of Covid 19 at that time and in consideration of the claimant’s years in service so far. The claimant was consequently retired by the 1st defendant vide letter dated 11/3/2021.
31. The 1st defendant averred that the claimant did not write any letter of appeal to the presidency as that letter is unsigned and without legal effect.
32. The 1st defendant urged this court to dismiss the claimant’s claims with substantial cost.
33. In all, the 2 witnesses for the 1st defendant tendered 13 documents in evidence in this suit. These are:
i. Official report of absenteeism dated 12/10/2018 (Exhibit D1).
ii. Report of continued AWOL dated 13/5/2019 (Exhibit D2).
iii. Query letter dated 10/10/2018 (Exhibit D3).
iv. Query letter dated 9/5/2019 (Exhibit D4).
v. Evidence of dispatch dated 13/5/2019 (Exhibit D5).
vi. Report of disciplinary committee dated 5/11/2019 (Exhibits D6).
vii. Letter of resumption dated 20/8/2020 (Exhibit D7). (Same as exhibit C5).
viii. Letter of suspension dated 18/18/2010 (Exhibit D8).
ix. Letter from NYSC dated 7/7/2019 (Exhibit D9)
x. Appeal to consider retirement from service dated 17/3/2021 Exhibit D10).
xi. Letter of appeal by H.R.H Chief Bachika Sarki dated 6/9/2019 (Exhibit D11).
xii. Application for transfer from Anambra State to Imo State dated 30/5/2019 (Exhibit D12).
xiii. Appeal for reversal of unlawful retirement dated 30/4/2021 (Exhibit D13). (Same as exhibit C8 of the claimant).
34. The claimant stated that his request for transfer was based on extenuating grounds is not unknown to public service rules. He accordingly never rejected any formal postings given to him by the 1st defendant.
35. The claimant stated that apart from the 1st query given to him which led to his suspension, no other queries were issued or served on him. He was not informed or invited to appear before any disciplinary committee or the Senior Staff Disciplinary Committee.
36. The claimant averred in reply that the covid 19 pandemic affected all civil servants and that he was not absent from duty during in periods between 2019/2020. He averred that the head of the 1st defendant’s garment factory is an officer of the 1st defendant, hence all communications from him, including the claimant’s letter of resumption is valid.
37. The claimant stated finally that his address was well known and same is even contained in his letter of resumption written by the head of the garment factory.
2ND DEFENDANT’S EVIDENCE:
38. As previously stated, having not produced any witness or evidence in his behalf, the 2nd defendant’s statement of defence of 23/9/2021 is deemed abandoned. Nonetheless, what is contained in the statement of defence filed are the following facts. That the facts contained in paragraphs 1 to 23 of the claimant’s statement of facts are all within his personal knowledge.
39. The 2nd defendant averred that the 2nd defendant never participated in the transaction contained in paragraphs 10 to 22 of the claimants statement of facts, and that the 2nd defendant is not indebted to the claimant in any form and the claimant cannot claim any damages against the 2nd defendant.
40. The 2nd defendant averred that there is no paragraph of the claimant’s statement of facts that links to the office of the 2nd defendant, and that this matter can be determined without the 2nd defendant.
41. In all, the 2nd defendant stated that it would rely on the witnesses and documents of the 1st defendant in opposition to this suit. The 2nd defendant urged this court to strike out its name on ground of misjoinder and for being incompetent.
1st DEFENDANT’S COUNSEL’S SUBMISSIONS AND ARGUMENTS:
42. Counsel to the 1st defendant filed a written submission on 8/3/2022. Within, he isolated 2 issues for the determination by this court as follows:
i. Whether the claimant’s claims against the 1st defendant as presently constituted which is lacking in merit ought to be dismissed in its entirety by this honourable court.
ii. Whether in view of the provisions of section 20 of the National Youth Service Corps Act, Cap N 84, Laws of the Federation of Nigeria 2004, the suit is mature for the honourable court to have jurisdiction to entertain same against the 1st defendant.
43. On issue number 1, counsel submitted that civil matters are determined on a balance of probability. He relied on the case of NTEILE V. IRAWAJI (2021) 16 NWLR (1803) 441 AT 447 and further submitted that the claimant admitted that he was absent from work without lawful permission and also admitted that he was queried as seen in his letter dated 17/3/2021. He however refused to respond to the said query letter to date. Counsel submitted that these proven facts need no further proofs.
44. Counsel maintained that under cross examination, the claimant contradicted himself by stating that he replied to the same query. Counsel went ahead to urge this court not to place any value on the evidence of the claimant. On the claimant’s retirement, counsel submitted that the claimant was duly retired on the strength of PSR 030307 as the law empowers the 1st defendant to take appropriate actions after the time for the claimant’s reply to the query served on him, elapsed.
45. According to learned counsel, the claimant made himself unavailable for the invitation to the committee that considered the allegation made against him. About the claimant’s knowledge of the allegation against him, counsel submitted that it is clearly stated in the query issued and served on him, and the letter of retirement also contains the reason for the decision.
46. With the aid of the case of Nteile v. Irawaju (supra) 444, and sections 131 to 133 of the Evidence Act, learned counsel submitted that the claimant failed to prove his case on the balance of probability.
47. On his issue number 2, learned counsel submitted that the office of the President as contained in section 20 of the NYSC Act, is unambiguous and well defined to mean the office of the President, Commander-in-chief of the Armed Forces. Counsel further submitted that there is no proof that the said letter of appeal referred to under section 20 of the NYSC Act was received by any office not to mention the office of the President, and without compliance with that said provision of section 20 of the Act, this court would be in want of jurisdiction to determine this suit. Counsel urged this court to apply the ordinary and plain meaning of the words in the said statute. Reliance was placed on the case of Adesanoye Vs. Adewole (2006) 10 MJSC 1 at 15.
48. Finally, learned counsel urged this court to dismiss this suit with substantial cost.
CLAIMANT’S COUNSEL’S SUBMISSIONS AND ARGUMENTS:
49. The claimant’s counsel filed a written submission on 30/3/2022. Within, he nominated a sole issue for the determination of this court, as follows “whether the claimant is entitled to his claims having regard to the state of pleadings and evidence led in this case”.
50. On same, learned counsel began his submissions by noting that the claimant’s retirement was hinged upon the provisions of rules 030601 of the Public Service Rules (PSR). Counsel went on to reproduce the said rule 030601 and submitted that the claimant’s retirement by the 1st defendant is a nullity as it offends the spirit of the aforesaid rule.
51. Counsel further submitted that the claimant was not afforded the opportunity to defend himself before the investigative or disciplinary committee that considered the allegations against him, neither was the claimant notified about the outcome of the investigation at by the committee for his possible reaction. Relying on the case of Olutubosun vs. NISER (1998) NWLR (PART. 80) 25, 30 AT 149; IDERIMA vs. R.S.C.S.C (2005) 16 NWLR (PART. 951) 378, learned counsel submitted that the effect of this retirement is that the employee in a statutory employment is deemed to have never left office in the first place.
52. Counsel submitted that the employment of the claimant enjoys statutory flavour and all the requirements for determining an employment with statutory flavour are present in this claimant’s instance. Counsel particularized on the provisions of PSR 030601 and submitted further that the rule only empowers the Federal Civil Service Commission to so act in retiring the claimant if it is desirable in the public interest.
53. On the issue of section 20 of the NYSC Act, learned counsel submitted that the provisions of the said section that allows for an aggrieved party to appeal to the president about a decision of the 1st defendant is only an optional provisions which the claimant is at liberty to adopt and may choose not to so do.
54. Counsel submitted that the said section 20 of the NYSC Act constitutes a clog on the constitutional right of a citizen of Nigeria from approaching the law courts, which in effect is inconsistent with sections 1 (1), 1 (3), 6 and 36 of the CFRN 1999 (as amended).
55. Finally, the learned counsel for the claimant urged this court to grant the reliefs sought by the claimant in the interest of justice.
56. I carefully read all the processes filed in this suit and considered the evidence for and against the claims made. I have also perused the written submissions filed by the respective parties’ counsel sufficient in forming my own opinions and making a decision in this case. As such, this case shall be determined by considering 2 issues only which are:
i. Whether considering the provisions of section 20 of the NYSC Act this suit is incompetent?
ii. Whether the claimant is entitled to the reliefs sought?
57. I already observed in the earliest portions of this judgment that these defendants filed separate notices of preliminary objections. These were delayed to the stage of judgment for the court to determine. It is thus now convenient to determine the issues raised therein by them. Whereas the 1st defendant in its NPO of 10/9/21 objected to the filing of this suit because it considers this suit premature for noncompliance with section 20 of the NYSC Act, the 2nd believes the name of the Attorney General of the Federation should be struck out from this suit being accordingly a misjoinder of a party.
58. On the application of section 20 of the NYSC Act it is material to first and foremost appreciate the provisions of the said section which states that:
“Notwithstanding the provisions of section 19 of this Act, any person aggrieved by any decision of the directorate or by the exercise by the directorate of any power under this Act shall have the right of appeal to the Presidency in the first instance and the Presidency may, notwithstanding anything to the contrary in this Act and subject to the approval of the National Defence and Security Council confirm or reverse the decision of the directorate or take such further measures in relation to the appeal as he may think just before any action may be commenced in any curt of law in Nigeria.”
59. The literal canon of interpretation of statute presupposes that where the language of the legislature or the draftsman of a legislation is plain and unambiguous, the court shall attribute their regular and ordinary meaning to the provisions of the statute – Aminu Tanko vs. The State (2009) 1-2 MJSC 209 at 255.
60. I observe that the words, ‘condition precedence’ is not necessarily used by the 1st defendant. However, the argument made by it in effect, buttresses on the import of section 20 of the NYSC Act as a condition precedence to the institution of this suit by the aggrieved claimant. In the case of African Natural Resources and Mines Ltd. vs. SS Minerals Mineral Resources Ltd. & Ors. (2021) LPELR-55151 (CA) the term, ‘condition precedence’ is defined as:
“A condition precedence is something that must be done or must happen in a particular case before one is entitled to institute an action. It is not of the essence of the cause of action, but it has been made essential by law.”
61. The question that naturally arises at this juncture is whether the said section 20 of the NYSC Act constitutes a condition precedence which must be complied with before the institution of a suit. I have taken diligent look at and considered the language of that provision and by the ordinary and plain meaning to be accorded to it, I have the ultimate impression and persuasion that it constitutes a condition precedence. It however only establishes and guarantees an ‘option to appeal’ by an aggrieved person, to the office of the Presidency. The expression thereof is not mandatory or sacrosanct but advisory. I am thus inclined to accept the proposition made by the learned claimant’s counsel in response thereof that the claimant and indeed any aggrieved person reserves the discretion to appeal to the presidency or not to so do. It is not a precondition to be followed prior to filing any suit against the national youth corps and so I find the objection made in that regard, insubstantial.
62. Nevertheless, the claimant attached exhibits CA1 (letter addressed to the president of Nigeria) and CA2 (DHL waybill) to his affidavit in opposition to the 1st defendant’s notice of preliminary objection. Exhibit CA2 is dated 6/5/2021 and shows that the said delivery was made to President Muhammadu Buhari at the Aso Rock Presidential Villa. I find that there is no evidence to the contrary to impugn on the veracity of exhibit CA2 as doubtful. It suffices as proof of the fact stated therein that exhibit CA1 was in fact, delivered to the office of the President of the Federal Republic of Nigeria.
63. The 1st defendant’s objection is hereby overruled.
64. With respect to the 2nd defendant’s objection against the competence of this suit on grounds of misjoinder, I meticulously considered the submissions of learned counsel for the 2nd defendant and particularly scrutinized the claimant’s statement of facts. Indeed, it appears the claimant has no direct contact or transaction with the 2nd defendant in the facts that constitute the claimant’s suit. Whether a person is a necessary party to a suit is a question of facts. Indeed, he must be so important that he is necessarily joined as a party to a suit. I do believe that the material questions for determination in this suit can be well resolved without the 2nd defendant taking full part as a party to this suit. This is more so owing to the fact that the 1st defendant is a creature of a statute and vested with the capacity of an artificial persona with full rights and obligations.
65. However, considering the stage of this suit at this moment, it needs to be said that order 13 Rule 14 of the rules of this court is instructive when it provides as follows:
No proceeding shall be defeated by reason of misjoinder or non-joinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interests of the parties actually before the court.
66. Regardless of this court’s position above however, this court shall rather maintain these parties as constituted in this suit, having arrived at this stage, and proceed to determine same according to the various rights and interest of the parties herein without need for alterations. The 2nd defendant’s preliminary objection is thus sustained.
67. Having arrived at those findings above therefore, issue number 1 is resolved against the 1st defendant in favor of the claimant.
68. Issue number 2 for consideration seeks to unravel whether the claimant proved his case in order to merit the reliefs sought. Again, I studied the reliefs sought by this claimant which were first set out in this judgment, and I am left with the strong impression that the claimant’s reliefs are built within the circumference of his claims that he was denied fair hearing by the 1st defendant in the purported involuntary retirement thus making the principle of fair hearing a threshold matter and one that is sine qua non to the action.
69. Fair hearing is an organic principle of justice and one of the twin pillars of natural justice under the common law (with the other being the principle against bias, often expressed in the Latin maxim, “nemo judex in causa sua”). The right to fair hearing is regarded as not just inalienable but also inviolable. The right to fair hearing is enshrined in section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that in the determination of the rights and obligations of a person by or against another person(s) or government, that person shall be entitled to fair hearing within a reasonable time. It goes without saying that fair hearing must be a hearing that does not contravene the principles of natural justice – DEDUWA & ORS. v. OKORO DUDU & ORS. (1976) LPELR-936(SC).
70. The true purport of the concept of fair hearing is enunciated in the case of MBANEFO v. MOLOKWU & ORS. (2014) LPELR-22257 (SC), where the apex court held inter alia as follows:
It cannot be over flogged; the cardinal principle of fair hearing and a hearing is taken to be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing…
71. It is thus trite that if any judicial or administrative body exercising quasi-judicial functions in any proceedings where the rights or obligations of a person is decided, is in contravention of the principle of fair hearing, such proceeding shall be rendered null and void – NDUKAUBA v. KOLOMO (2005) 1 SC (1) 80; ENE & ORS v. ENE & ORS. (2012) LPELR1970 (CA). It is important to note that the question whether a person was afforded fair hearing is dependent on the given facts and circumstances of a particular case – AYOADE v. STATE (2020) LPELR-49379(SC).
72. Having made the above legal emphases, the next duty is to dissect the facts and evidence before me within the purview of the question asked which is whether this claimant was afforded the opportunity to be heard before the decision for his involuntary retirement was taken by the 1st defendant.
73. In this light, paragraphs 13, 14, and 15 of the claimants statement of facts are worthy of reproduction for clarity of emphasis.
13. No further allegation was leveled against the claimant after he served out his suspension neither was he invited to appear before any disciplinary or investigative panel in respect of any offence or allegation.
14. The claimant was surprised that notwithstanding the fact that he has served out his suspension and resumed duties, he was unlawfully retired by the 1st defendant on 11th March 2021 in breach of PSR 030601 upon which his retirement was predicated.
15. At all material times and in consideration of a report (if any) for his retirement, the claimant was not given any opportunity of submitting a reply or defending himself to the complaints by reason of which his retirement was contemplated as required by law.
74. It should also be noted that these paragraphs set out above are equally replicated in paragraphs 14, 15, and 16 of the claimant’s statement on oath sworn on 6/7/2021.
75. The 1st defendant responded to these averments by the claimant in its paragraphs 29, 30 and 32 of the 1st defendant’s statement of defence. These paragraphs are set out below as follows:
29. The 1st defendant denies paragraph 13 of the statement of facts, and in answer to the said paragraph avers that there was no need for any further allegation against the claimant because the disciplinary process against the claimant was in progress as directed by the 1st defendant via letter dated 7th July 2019. The letter is hereby pleaded and shall be relied on at the trial. Moreover, the 1st defendant did not know his whereabouts as even the second query letter sent to his last known address was returned as the address was not known at the said address which was supplied by the claimant as his known address.
30. The 1st defendant denies paragraph 14 of the statement of facts, and in answer to the said paragraph, avers that the claimant never resumed duty after his suspension, and he shall be put to the strictest proof. His retirement was undoubtedly lawfully as he in breach of public service rule 030402(e).
32. The 1st defendant denies paragraph 15 of the statement of facts, and in answer to the said paragraph avers that the claimant was clearly and unequivocally given ample opportunity to submit a reply and defend himself by the statutory means of replying to the query. In his own case the claimant was give two query letters, but none were replied by him.
76. These averments would also be seen in paragraphs 12, 13 and 14 of the statement on oath of DW1.
77. This court’s findings indeed reveal that this claimant was employed by the 1st defendant on 11/12/ 2006, and after several years of service, he was posted to the 1st defendant’s garment factory in Mgbakwu, Anambra state on 9/7/2018. The claimant frequently absented himself from work leading to several reports by the head of the garment factory to the director general of the 1st defendant. These reports include the ones tendered as exhibit D1 which is dated 12/10/2018 and exhibit D2 dated 13/5/2019.
78. It transpired that the claimant was first issued a query letter dated 10/10/2018 (Exhibit D3). The said letter was actually signed and collected for on 13/10/2018 presumably by the claimant. I however observe that the claimant did not plead any reply or response to the said query of 10/10/2018 and such response was not tendered by the parties as an exhibit. However, under cross examination the claimant (CW1) testified to having replied to the said query.
79. Moreso, in exhibit D10 dated 17/3/2021 (the claimant’s letter of appeal), he stated in paragraph 2 that he responded swiftly to the same query. But the 1st defendant profusely denied receiving any such response to the query letter of 10/10/2018 from the claimant. It is not open to this court to confirm when the said response was made by the claimant, and this is simply because the claimant did not deem it material to adduce evidence of the supposed response. As such, I shall not speculate about that any further.
80. I also found that the claimant was served a letter of suspension dated 18/8/2020 (exhibit D8), which suspension was meant to take effect from 19/8/2020. It must be noted too that the 1st defendant averred to a certain 2nd query letter dated 9/5/2019 (exhibit D4) addressed to the claimant, but which it claimed could not be served on the claimant because the address of the claimant could not be traced and the claimant’s whereabouts were unknown either in Anambra or in Lagos state.
81. It is clear from the averments by the 1st defendant and the evidence before me that the 1st defendant constituted a committee on 31/10/2019 to consider a case of misconduct against the claimant. This committee upon conclusion of its proceedings, issued an internal memo supposedly executed by its members on 5/11/2019.
82. Consequent to the findings by the said committee, the claimant was purportedly involuntarily retired vide letter of retirement from service dated 11/3/2021 (exhibit C6). This brings me to the fair question to ask in this judgment, which is: was the claimant thus granted a fair hearing before the decision was made by the 1st defendant to retire him involuntarily from service.
83. In my mind and in virtue of these abundant evidence before me, this question is bound to be answered in the negative. The reason for my answer is not far-fetched. First, I am inclined to believe the 1st defendant that the claimant did not respond to the 1st query letter addressed to him (exhibit D3) even though it does not stop there!
84. Beyond exhibit D3, the 1st query, there is the 2nd query letter (exhibit D4, the same as exhibit C3), which for better and clearer elucidation is deemed fit of reproduction hereunder:
Mr. Ononogbo Uzoma,
c/o Plot 6 Ademola Oki Street,
Aguda – Surulere,
ABSENCE FROM DUTY WITHOUT LEAVE:
Your attention is hereby drawn to the letter ref: NYSC/GF/ANS/P/15/07 dated 10th October 2018, addressed to you by the undersigned.
Please be reminded that you collected and signed for the letter under reference but did not bother to answer.
I wish to state that insubordination, absence from duty and your nonchalant attitude to work have not in any way witnessed any improvement, if anything, it has degenerated. It is on record that you come to the factory barely once in a month.
Arising from the above therefore, you are hereby required to state in writing to the undersigned, within forty – eight (48) hours, why severe disciplinary action should not be taken against you for serious misconduct in tune with PSR, revised to 1st January 2000 chapter, Para 04401, sections III, iv and xix.
You are complying.
Chris A. Abah
Head, NYSC Garment Factory
Mgbakwu, Anambra State.
85. It should be noted that whereas the 1st letter of query of 10/10/2018 is addressed to the claimant at “NYSC Garment Factory, Mgbakwu, Anambra State”, the 2nd letter of 9/5/2019 is addressed to him at “c/o Plot 6 Ademola Oki Street Aguda – Surulere, Lagos State. The 1st defendant never explained why both letters had to be sent to different addresses satisfactorily other than stating that the claimant could not be reached at his last known address. It appears to this court however that this fact is untrue since his last known address for sending any correspondence to the claimant was not in Surulere-Lagos State, but the garment factory where he supposedly worked in view of exhibits D3 and D4.
86. In any case, the contents of exhibit D4 above, requires the claimant’s response as same actually raises allegations that need to be answered by him. It goes without saying that the 1st defendant’s defence to the effect that the address of the claimant could not be found, or that the claimant could not be reached on his phone number, are weak and untenable enough to excuse a denial of an employee’s constitutionally guaranteed right to fair hearing. Moreover, CW1 stated under cross examination that he was resident in Imo State at the material time, and he went on to state as follows:
I am living in my place of work. The manager knows my house. I was not written to or invited to the panel.
87. Whether that answer given by the claimant is true, is another kettle of fish entirely. The CW1, however, was not further cross examined on this testimony. What is more is that the 1st defendant averred in paragraph 22 of its statement of defence that:
The claimant again reappeared on 11th October 2018 to submit his posting letter and record of service to the head garment factory and left again that same day. But before he left, he was issued a query letter dated 10th October 2018, which he admitted receiving but did not reply…
88. It is however noticeable that this pleaded fact was jettisoned by the 1st defendant when it omitted same in the sworn depositions of the 2 witnesses.
89. Be that as it may, a hard look at these exhibits shows that the said exhibit D4 (2nd query) was made on 9/5/2019, while exhibit D6 (committee memo/report) was signed by the committee members on 5/11/2019. Now, exhibit D7, letter of resumption written by the head of the garment factory to the director general of the 1st defendant states clearly that the claimant resumed duty on 26/6/2020 – paragraph 2 of exhibit D7 dated 20/8/2020.
90. Invariably, the said 2nd query letter and the report of the committee had long existed prior to the time the claimant eventually resurfaced to resume his duties at the garment factory of the 1st defendant, yet these documents (exhibits D4 and D6), were not physically given to the claimant until his eventual summary retirement from service. What is more is that exhibit D6 (the committee’s report), states under the terms of reference that the considerations of the committee are to:
i. Get his file and study
ii. Read the latest letter from NYSC NDHQ in respect of the above subject.
iii. Bring your personal experience to bear on his absenteeism since his posting to the factory in 2017, and
iv. Draw your observations and conclusions.
91. It occurred to this court that giving the meticulousness of the defence presented by the 1st defendant that if the claimant had been formally invited to face the disciplinary committee based on the requirement of the PSR, he would have been given a letter in that regard or if it was made orally, an oral account of such invitation would have been recounted by its witnesses.
92. Without any further ado, it indeed amounts to gross injustice that the members of the said committee would be allowed to consider the allegations against the claimant, even judging by their own personal experiences, in the physical absence of the claimant no matter what, and without thus affording him the least opportunity to hear what they held against him. This is the most extreme form of denial of fair hearing that I could ever imagine anything.
93. Granted that efforts were reasonably made by the 1st defendant to locate him unsuccessfully being a habitual absentee, and that he could not be reached through his known mobile phone number, the least the 1st defendant could have done was to interdict the claimant and stop his salaries until he resurfaces, handed the 2nd query letter, invited to attend the disciplinary committee session(s) and thereafter, appropriately disciplined in line with the regulations contained in the PSR. Anything short of this will be unacceptable.
94. The decision of the apex court in the case of Ayoade v. State (2020) LPELR-49379 (SC) resonates in my mind at this juncture and I shall produce same anon as follows:
The law is quite settled that a complaint of lack of fair hearing will avail a party where he is able to show that he was denied the opportunity of presenting his case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It has been held in several decisions of this court that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case…the effect of a breach of fair hearing is that the entire proceedings and any judgement or order made therein becomes a nullity – Audu Vs. F.R.N (2013) LPELR-19897 (SC) 13; Akinfe Vs. The State (1988) 3 NWL (Part 85) 729; Bamgboye Vs. University of Ilorin (1999) 10 NWLR (Pt. 622) 290…”
95. Going by this judicial yardstick, I am still convinced that the claimant was not afforded the opportunity to present his own case before the decision based on the allegations leveled against him was taken by the 1st defendant.
96. I must, regardless of my finding above, convey this professional dictum against the claimant’s conduct which I find to have been proven against him anyway. It should be noted that the trajectory of this judgment so far, deals with whether he was accorded a fair hearing or not before the decision to involuntarily retire him was made by the 1st defendant. That does not mean this court condones his habitual absenteeism from his duties contrary to rule 030401, or does it mean that he is encouraged to callously disregard the properly laid down rules contained in the PSR. Ordinarily, I would not be convinced to order a reinstatement of the claimant giving the undeniable fact that what he showed, was an abject, complete and reckless disregard for work ethics which should leave any reasonable employment tribunal with only one conclusion which is that this claimant should be stripped-off of the opportunity he had on a platter of gold, to be gainfully employed in Nigeria in these hard times. Whereas my decision shall be contrary to what I have above imagined, it shall nonetheless inform the reason for the final decision I shall hereunder make shortly.
97. As such, the fact that the claimant failed, neglected and or refused to reply to the 2nd query contrary to rule 030307 of the PSR, would not be sufficient ground to reject his claims since this court already found that he was not accorded fair hearing before he was involuntarily retired by the 1st defendant on the alleged ground of public interest. After all, the decision of the senior staff committee of the 1st defendant was not found solely upon the said exhibit D3 but also on exhibit D4 (the 2nd query), and even given the experiences of the members of the said disciplinary committee.
98. Of course, in civil proceedings, the burden of proof is on the vulnerable party (i.e. the party that would lose if no evidence were called), to lead credible evidence in proof of his case – Onobruchere V. Esegine (1986) 1 NWLR (Pt.19) 799. The Evidence Act 2011 is also sacrosanct on this legal principle – section 133 of the Act. Thus said, I have no doubt that the claimant adduced cogent enough evidence on a balance of probability, that he was denied fair hearing by the 1st defendant. Therefore, issue 2 is answered against the defendants and in favour of the claimant.
99. Given my obvious convictions against the irreprehensible conduct of the claimant as a habitual absentee and as an officer who refuses to follow public service ordinances like replying to query letters and seeking for undue transfers and or unnecessary leaves of absence, I shall not reward him with any monetary compensation save for an order of reinstatement to his last grade level before he instituted this action and a reinstatement of his salaries from the end of the month of May 2022 onwards. He is also denied any unpaid salaries for the period this suit was litigated in court having not merited same. He showed no sterling quality worthy of an award. This court hereby quashes the letter of involuntary retirement of 11/3/2021. He is equally cautioned to adhere to his duties as a public servant of the country and to henceforth, become a shining example for other staff to emulate.
100. In effect, and for the avoidance of any doubt whatsoever, the claimant’s suit succeeds partially. Only his reliefs I, II and III above are granted. Reliefs IV, V, VI and VII are hereby refused and same are accordingly dismissed.
101. Judgment is entered accordingly. No cost awarded.
DELIVERED IN OWERRI THIS 17th DAY OF MAY 2022.
Mr. Justice I.S. Galadima,
Public access to NICN decisions:
Judgments and reasons for the judgments are published, in full, online at https://nicnadr.gov.ng. NICN decisions are available to the general public shortly after a copy each has been sent to the claimant(s) and respondent(s) in a case.