IN THE NATIONAL INDUSTRIAL Court OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

15TH OCTOBER 2025                                             SUIT. NO. NICN/ABJ/ 382/2022 BETWEEN

ADEWALE TOPE POPOOLA ………………………………………… Claimant

AND

1. FEDERAL ROAD SAFETY COMMISSION

2. FEDERAL ROAD SAFETY CORPS ………………………………  DefendantS

3. THE CORPS MARSHAL, FEDERAL:

    ROAD SAFETY CORPS 

Representations:

F. K Khamagam Esq. with M.U Lakudos Esq. and Selina Samson Esq. for Claimant

U.A Dibal Esq. for Defendants

JUDGMENT

[1] This suit was commenced vide a general form of complaint filed on 2nd December 2022 and as can be seen in paragraph 32 of the Statement of fact, the Claimant is seeking for the following reliefs:

1)     A declaration that the purported termination of the employment of the Claimant by the Defendants, communicated to him via a letter dated 18th December 2020 is unlawful and void ab-initio.

2)     A declaration, that the withholding and continuous withholding of parts of the Claimant's earned salaries and other entitlements of the Claimant due and outstanding for the period of November 2019 and January 2021, in spite of the conclusion of the criminal case in favour of the Claimant and the formal demand for payment of the withheld money by the Claimant is illegal and a breach of the contract of employment subsisting between the Claimant and the Defendants.

3)     A declaration, that the non-payments of the Claimant's earned salaries and other entitlements of the Claimant for the period between January, 2019 to September 2019, cumulatively in the sum of N839,175.32 Eight Hundred and Thirty-Nine Thousand, One Hundred and Seventy-Five Naira, Thirty-Two Kobo) only after all deductions without justification is illegal and a breach of the contract of employment subsisting between the Claimant and the Defendants.

4)     4) AN ORDER of this Honourable Court, setting aside the purported termination of the appointment of the Claimant with the Defendants, communicated to the Claimant vide the letter of 18th December 2020.

5)     AN ORDER of this Honourable Court directing the Defendants to reinstate the Claimant back to his position as an officer of the 1st and 2nd Defendants, forthwith.

6)     AN ORDER of this Honourable Court directing the Defendants to restore to the Claimant's his promotions which he lost pursuant to or as a result of his purported albeit illegal termination of appointment, effective 14th December 2020, and to be placed at the same rank with his course mates who are still in the service.

7)     AN ORDER of this Honourable Court directing the Defendants to pay the Claimant his salaries, allowances, bonuses and other entitlements, benefits, privileges, services, and all other benefits which have fallen due or have or would have accrued to him in the normal course of his employment with the Defendants during the period of the illegal termination of his employment between 14th December 2020 and the date judgment is entered in favour of the Claimant in this case.

8)      AN ORDER of this Honourable Court, directing the Defendants to pay to the Claimant, the sum of N839,175.32 (Eight Hundred and Thirty-Nine Thousand, One Hundred and Seventy-Five Naira, Thirty-Two Kobo) only, being the earned net salaries and other entitlements of the Claimant, illegally not paid by the Defendant between the months of January 2019 to September, 2019.

  9) AN ORDER of this Honourable Court, directing the Defendants to pay to    the Claimant, the sum of N1,152,016.51 (One Million, One Hundred and Fifty-Two Thousand, Sixteen Naira, Fifty-One Kobo) only, being the parts of the salaries and other entitlements of the Claimants, illegally withheld by the Defendant between November, 2019 to January, 2021.

   10) AN ORDER of this Honourable Court, directing the Defendants to pay back to the Claimant the various sums of money illegally deducted from his salaries and paid to Schoviejel Cooperative Society between the months of August 2019 to January, 2021, cumulatively in the sum of N455,000.00 (Four Hundred and Fifty-Five Thousand Naira) only.

11)  AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay to the Claimant, the sum of N50,000,000.00 (Fifty Million Naira) only, as general and exemplary damages for illegal non-payments, deductions, and interdiction of the Claimant's earned salaries and allowances for the periods of January, 2019 to September, 2019, August, 2019 to January, 2021, and November, 2019 to January, 2021 respectively.

12) AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay to the Claimants, the sum of N100,000,000.00 (One Hundred Million Naira) only as general and exemplary damages for the illegal termination of the Claimant's employment with the Defendants, and for the phycological, emotional trauma, economic loss and general inconveniences suffered by the Claimant as a result of the illegal termination of his employment.

13) AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay to the Claimants, the sum of N300,000.00 (Three Hundred Thousand Naira) only and 15% of the total money award, as may be awarded in favour of the Claimant in this suit, as cost of this action.

14) AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay post judgment interest at the rate of 10% of the total judgment sum entered in favour of the Claimant, from the day judgment is entered, until judgment of this Court is fully liquidated.

15) ANY OTHER ORDER OR SUCH FURTHER ORDER(S), as this Honourable Court may deem fit to make to meet the substantial justice of this case.

CLAIMANT’S CASE

[2] The Claimant, a former officer with the Federal Road Safety Corps (FRSC), is suing the Defendants for allegedly terminating his employment illegally. He was employed as an Assistant Road Commander in 2012 and rose to the rank of Route Commander. In 2019, the Claimant was accused of receiving confidential exam information (exam questions and answers) and was queried by the Defendants. He responded to the query, but the Defendants still conducted an internal investigation and disciplinary proceedings. According to the Claimant, he was not given feedback as to the outcome of the inquiry, but he wrote an appeal against the anticipated recommendation of reduction in rank and termination of appointment.

[3] While the issue of the disciplinary action was ongoing, the Claimant was yet again allegedly wrongfully accused of conspiracy, cheating and criminal misappropriation alongside 5 (five) other officers of the Defendants and they were all handed over to the police for investigation and prosecution. According to the Claimant, they were subsequently discharged and acquitted by a Magistrate Court by a Ruling dated 22nd October 2021.

[4] In 2020, the Claimant was promoted to the rank of route commander, but before he could be decorated, he received a letter terminating his appointment. The Claimant alleges that his termination was unlawful because it didn't follow proper procedures and was based on unfounded allegations.

[5] It is the claim of the Claimant that between January 2019 – September 2019, his salaries were not paid despite reflecting that it was on his pay slip. Also, since November 2019 when he was handed over to the police for investigation for offence of conspiracy, cheating and criminal misappropriation, substantial part of his monthly salaries was cut until it eventually got stopped in January 2021. That from November 2019 - January 2021, the Claimant was paid a paltry sum of N237,287.55 (Two Hundred and Thirty-Seven Thousand, Two Hundred and Eighty- Seven Naira and Fifty-One Kobo) for a period of 15 months, leading to a shortfall of N1,152,016.51 (One Million, One Hundred and Fifty-Two Thousand, Sixteen Naira and Fifty-One Kobo). He also alleges illegal deductions of N455,000 (Four Hundred and Fifty-Five Thousand Naira) from his salary.

[6] The Claimant averred that he made attempts to resolve this matter amicably through appeal letters, but to no avail and that he and his family faced financial hardship, emotional trauma, and embarrassment.

[7] It is for these reasons that the Claimant has filed this suit against the Defendants, seeking redress for the alleged injustice: payment of unpaid salaries, reinstatement, and compensation for hardships faced.

DEFENCE

[8] Upon receipt of the originating process, the Defendants filed a joint statement of defence on 19th July 2023 and subsequently an amended joint statement of defence on 15th May 2025. The Defendants contested the Claimant's allegations, arguing that his termination was lawful and followed proper procedure. The Defendants admitted that the Claimant sat for the promotional exam but deny that he was wrongly accused of misconduct. That investigation revealed the Claimant received confidential exam information, leading to disciplinary action and that the Claimant was given opportunity to defend himself and appeal. The Defendant admitted that the Disciplinary Panel recommended reduction in rank and termination of appointment of the Claimant and that his appeal was deemed late. Consequently, his termination was ratified by the Board.

[9] The Defendants claim the Claimant's salaries were processed through IPPIS and deductions were made for loan repayments.

The Defendant also raised an issue of jurisdiction on the ground that this suit is statute barred and seek its dismissal.

REPLY

[10] In response to the joint amended statement of defence, the Claimant filed a reply on 24th January 2024 contesting the Defendants' allegations. The Claimant denies willfully procuring or receiving confidential exam information and claims it was past questions from a course mate. Claimant alleged that the disciplinary panel's proceedings were unfair, with the chairman showing prejudice; that he was not allowed to fully defend himself as the panel had already decided on the outcome. The Claimant asserts that his constitutional rights to fair hearing were violated and therefore seeks redress for the alleged injustice.

[11] Also, the Claimant averred that his plea for justice with mercy and his reply to the query does not amount to admission and that he was queried for procuring and receiving highly confidential information and was never tried for aiding and abetting other officers in alleged unauthorised disclosure of confidential property.

[12] He claims that he was not allowed to make representation but only to respond to question put to him by the chairman. Also, that he suffered double jeopardy, with the exam cancelled and re-written, and later termination of his appointment.

[13] The Claimant disputes the Defendants' claims about loan repayments and salary deductions, maintaining his claims for unpaid salaries and compensation.

COMMENCEMENT OF HEARING

[14] Trial in this suit began on 5th March 2024 when the Claimant opened his case and testified as CW1. He adopted his witness statement on oath filed 2nd December 2022 and 24th January 2024. He also tendered 18 (eighteen) documents admitted and marked as exhibits C1-C18.

[15] Under cross examination, the Defendant through the Claimant tendered 4 (four) documents which were admitted and marked as exhibits C19- C21. Claimant admitted that appointment was not terminated because of trial at the magistrate Court and cannot remember date in which he appealed his termination. He also stated that he filed appeal before formal recommendation of panel was made.

[16] Court adjourned to take Claimant’s subpoenaed witness, however, after several adjournments without obtaining the attendance of the subpoenaed witness, the Claimant opted to close his case on the ground that the Defendants’ Counsel had intimated him that the defence would be tendering some of the documents which the Claimant needs from the subpoenaed witness. On that basis, the Claimant closed his case on 17th December 2024 and Court adjourned for defence.

[17] On 12th March 2025, the Court upon submission of the Claimant and satisfaction from its records that the Defendants have failed to diligently prosecute their case, foreclosed the Defendants from opening defence. This order was however, set aside upon application of the Defendants on the 21st May 2025. Accordingly, the Defendants opened their case on 21st May 2025 calling one Longi Jwat as DW1, who adopted witness statement on oath filed 15th May 2023 and through whom 11 (eleven) documents were tendered, admitted and marked as exhibits D1-D11.

[18] Under cross examination, DW1 testified that the Deputy Corp Marshall issued convening order to investigate defaulting officers and constituted disciplinary panel in Claimant’s case. That he (DW1) was not a member of the panel, neither did he participate in the investigation, but that his office reviewed report of investigation.

[19] DW1 asserted that the Claimant was tried for offence of unlawful concealment and gross misconduct relating to unauthorised disclosure of batch ADRC promotion examination questions and aiding and abetting disclosure of confidential matters. However, he was terminated for gross misconduct in examination.

[20] He stated that the corps marshal through deputy corps marshal and human resources terminated the employment of the Claimant. Thus, he (DW1) played no role in the appointment, confirmation, query, disciplinary proceeding and termination of the Claimant’s employment.

Regarding the issue of loan, DW1 stated that the Claimant stood as guarantor for a friend with the cooperative at the sum of N150,000 (One Hundred and Fifty Thousand Naira) which was deducted from Claimant’s salary.

[21] The Claimant’s Counsel tendered 2 (two) documents, admitted and marked as exhibits D12 and D13 through the DW1. The Defendants closed their case on 21st May 2025 and Court adjourned for adoption of final written addresses.

[22] On 21st July 2025, date slated for adoption, the Claimant withdrew his reply on points of law. The Defendant adopted final written address filed 7th July 2025, which was deemed properly filed on same date, while the Claimant adopted final written address filed 23rd June 2025. The Defendant’s Counsel further submitted that the Claimant’s final written address is in non-compliance with Order 45 Rules 1 and 2 of the Rules of this Court and urged Court to discountenance same. Claimant’s Counsel on his part urged Court to evoke Order 5 of the Rules of this Court.

DEFENDANTS’ SUBMISSION

[23] The Counsel to the Defendants raised 3 (three) issues for determination to wit:

1.     Whether having regards to the facts as evidenced before this honourable Court, the complaint has established a binding contractual relationship with the Defendants.

2.     Whether the Claimant has upon preponderance of evidence established before the honourable Court the fact that the termination of his employment by the Defendants was wrongful.

3.     Whether the Claimant have with mathematical precision established the monetary claims before the honourable Court to have entitled the honourable Court grant his claims.

ISSUE 1

Whether having regards to the facts as evidenced before this honourable Court, the complaint has established a binding contractual relationship with the Defendants.

[24] It was submitted that the Claimant's employment contract with the Defendants is coated with statutory flavour, meaning it's governed by statute and Regulations, specifically the Federal Road Safety Act 2007 by virtue of section, Section 7(3)(e) of the Act. Defendants’ Counsel cited COMPTROLLER GENERAL OF CUSTOM & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC), YUSUF SHUAIBU & ORS v. NIGERIAN BOTTLING COMPANY PLC (COCA-COLA) (2020) LPELR-52110(CA), IMOLOAME VS W.A.E.C. (1992) NWLR (PT.265) 303; OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599; SHITTA-BEY V. PUBLIC SERVICE COMMISSION (1981) 1 SC 40. It was further submitted that the employment is regulated by the Federal Road Safety Commission Conditions and Scheme of Service, Federal Road Safety Commission Regulation on Discipline 2018, and Public Officers Protection Act. The Defendants’ Counsel argues that Claimant’s employment being one coated with statutory flavour is required to adhere to Regulations and fair hearing procedures.

ISSUE 2

Whether the Claimant has upon preponderance of evidence established before the honourable Court the fact that the termination of his employment by the Defendants was wrongful.

[25] The Defendants argue that the Claimant's termination was lawful, following proper procedures and Regulations. That the Claimant failed to establish which law or rule was breached in the termination of his employment, therefore, he has failed to establish his case. He cited CHIEF TAMUNOEMI IDONIBOYE-OBU V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2003) LPELR-1426 (SC), ABUBAKAR SADIQ MOHAMMED V. HON. ABDULLAHI MOHAMMED WAMMAKO & ORS (2017) LPELR-42667 (SC). It was submitted that the Defendants followed the Federal Road Safety Commission Regulation on Discipline 2018 in terminating the Claimant's employment. That the Claimant was queried, given the opportunity to respond, he was investigated and found guilty of gross misconduct, upon which the Disciplinary Panel recommended his termination.

ISSUE 3

Whether the Claimant have with mathematical precision established the monetary claims before the honourable Court to have entitled the honourable Court grant his claims.

[26] The Defendants argue that the burden of proof lies on the Claimant to establish entitlement to the monetary claims, failure of which is fatal to his claim. Counsel cited NO WAHALA AUTO ZONE LIMITED v. GOVERNMENT OF EBONYI STATE & ANOR (2022) LPELR-59360(CA). Counsel further submitted that Claimant's claims for withheld salaries and entitlements, lack merit, as deductions were made for legitimate loan repayments which the Claimant himself admitted during cross examination. Reference was made to ADAMU ABUBAKAR LALALA v. THE STATE (2021) LPELR-55540(CA), MR. KIAKUTU KALSUO KOFFI & ORS v. CHIEF SMART TUAWERI & ORS (2017) LPELR-45211(CA), Exhibits C-19, C-20, and C-21. Also, that the Claimant was placed on interdiction (half salary) during his criminal trial, as per Regulation on Discipline 2018.

[27] On the whole, it is submission of learned Counsel that the Claimant is not entitled to reliefs sort having failed to establish his case. He therefore urged the Court to dismiss this suit.

CLAIMANT’S SUBMISSION

[28] I have observed that the Claimant filed a 48 (forty-eight) pages final address in flagrant contravention with Order 45 Rule 2(2) of the National Industrial Court (Civil Procedure) Rules 2017. Although the Claimant’s Counsel had orally urged the Court to evoke order 5 of this Rules to discountenance the application of the Defendants’ Counsel relating to the incompetence of Claimant’s written address. However, I am not obliged to grant this prayer as Rules of Court are meant to be obeyed and the Claimant’s Counsel did not adduce any cogent reason for this deviation.

[29] In view of this non-compliance, this Court shall discountenance and expunge the said written address from its records. This should not be seen as capable of occasioning injustice as it has been held in plethora of cases that a written address does not constitute evidence which must be examined by the Court before reaching its decision. See ADEGBOLA V. IDOWU (2017) 17 NWLR (PT. 1595) 353.

DECISION

[30] I have carefully considered in its entirety, the processes filed in this suit, alongside final written submissions of learned Counsel for both sides. I find that the germane and central issue to be determined is:

“Whether the Claimant has proved his case to be entitled to reliefs sought”

[31] The law is trite that civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The Court arrives at this by placing the totality of evidence adduced by both parties on an imaginary scale to determine which side weighs heavier or preponderates accordingly. The party whose evidence is heavier succeeds in the case. See ODOFIN V. MOGAJI (1978) 4 SC P. 91. Moreso, it is a settled position of law that cases are won and lost on the evidence presented by parties before the Court, therefore, the success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. Likewise, the success or failure of the defence of the Defendant is based on the averment in his Statement of defence and the evidence led in support thereof. See RAMONU RUFAI APENA & ANOR V. OBA FATAIAILERU & ANOR (2014) 6 – 7 MJSC (PT.11)184 @ 188.

[32] The parties are at a consensus as to the nature of the employment of the Claimant to be one coated with statutory flavour. It is settled law that a contract is said to have statutory flavour when the contractual relationship between the employer and employee is governed by a statute or Regulation, see UMERA V. N.R.C. (2022) 10 NWLR (PT. 1838) 349, NEPA V, ADESAAJI (2002) 17 NWLR (Pt. 797) 578. In this instance, the Claimant’s employment was governed by the Federal Road Safety Commission (Establishment) Act 2007, Federal Road Safety Commission Conditions and scheme of service and Federal Road Safety Regulations on Discipline 2018.

Where a Claimant claims that the termination of his employment was wrongful, the onus is on such Claimant to prove same. In the case of MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR 506 @ 519, the apex Court stated that in a case of wrongful or unlawful termination of employment, the plaintiff must begin first by specifically pleading the following:

1.     That he is employed by the Defendants;

2.     The terms and Conditions of his appointment including duration and termination;

3.     who can appoint and remove him;

4.      The circumstance under which his appointment can be terminated; and

5.      That his appointment can only be terminated by a person or authority other than the Defendants.

See also SKYE BANK V. ADEGUN (2024) 15 NWLR (PT 1960) 1 @ P. 35 Para H.

[33] In addition to the aforementioned, the Claimant must also plead relevant facts and evidence; these pleaded facts must be supported by credible evidence for his claim to succeed.

[34] In this present case, the Claimant was alleged to have unauthorised access to confidential promotion examination questions. Consequently, he was issued a query for concealing a misconduct by another officer of the corps in contravention of Regulation 15(3)(a). This allegation was intimated via a query dated 9th October 2019 (exhibit C5) to which the Claimant responded by a letter dated 11th October 2019 (exhibit C6). In matters of termination or discipline under a contract of employment coated with statutory flavour, the procedure laid down in the applicable statute must be strictly adhered to as any breach would render the exercise null and void; See NEPA V. ADESAAJI (Supra) Accordingly, the determination as to whether the Claimant is entitled to the reliefs sought will grossly depend on whether the Defendant in exercise of its disciplinary control over the Claimant complied with the laid down procedure. It therefore behoves this Court to determine whether the termination of the Claimant’s employment was unlawful or done in strict compliance with laid down procedures; in order to do this, recourse must be made to the Condition of Service as this is a binding agreement between the parties. See LONGE V. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PT. 1189) 1 and NITEL PLC V. AKWA (2006) 2 NWLR (PT 964) 391 where the Court held that:

“The terms and Conditions of a contract of Service are the bedrock of any case where the issue of wrongful termination of employment calls for determination.”

[35] The foregoing leads me to the Federal Road Safety Commission Regulations on discipline, 2018 (exhibit D13) to be subsequently referred to as the Regulation. This Regulation was enacted in exercise of power conferred on the 1st Defendant to make Regulations by Section 5 FRSC (Establishment Act 2007). By a combined reading of Regulations 52 - 55, I have deduced that when a report is laid against a member of the corps, the officer on whom the report is made is required to be informed promptly in writing by the appropriate authority and requested to make representations in his defence to show satisfactory reasons why disciplinary action should not be taken against him. The officer shall be referred to the FRSC disciplinary panel (FDP). Where his representation is not satisfactory the FDP after investigation makes recommendations as to appropriate punishment to be meted on the officer.

[36] In this instant case, the Claimant was issued a query on 9th October 2019 (exhibit C5). The query indicated that he had allegedly offended Regulation 15(3)(a) of the FRSC Regulations 2018 and was requested to show satisfactory reasons why disciplinary actions should not be taken against him. The Claimant responded to this query vide a letter dated 11th October 2019 (exhibit C6) Apparently unsatisfied with the response of the Claimant, the Defendants proceeded with investigations and also set up panel of inquiry before which the Claimant appeared to make representations in his defence.

Before proceeding further, I find it necessary to reproduce relevant excerpt of the query letter below:

“QUERY

Ref: FRSC/HQ/CIO/320/VOLXXX/97 dated 25 Sept, 19

The quoted reference is in respect of the above subject.

2. information before the management is to the effect that you wilfully received highly confidential information (promotion exam questions/answers) procured and forwarded to you without authority and you thereby concealed misconduct that came to your knowledge.

3. in view of the above, you are to explain why disciplinary action should not be commenced against you for violating Regulation 15(3) (a) of the FRSC Regulations on Discipline 2018. Your explanation should reach the CM through the undersigned within 48hrs, upon receipt of this query.”

[37] The grouse of the Claimant against the disciplinary procedure can be seen in paragraph 5 of the further witness statement on oath filed 24th January 2024 and reproduced below:

“a) In the query issued to me before the panel was set up, I was only queried for allegedly procuring and receiving highly confidential information only. Even during the disciplinary proceedings, there was no issue of aiding and abetting against me, I was never tried in respect of aiding and abetting other officers in the unauthorized disclosure of confidential matter as contained in count 2 pleaded at paragraph 9 of the statement of defence (SOD) and stated at paragraph 12 of the witness statement on Oath (WSO).
b) The disciplinary panel was already prejudiced against me and the members of the panel had made up their minds against me even before hearing my own side of the mater. During the proceedings at the disciplinary committee panel, the Chairman of the panel, one ACM O. Familoni who knows me personally and I had worked with him made remarks that showed I was merely wasting my time as members of the panel had already made up their minds, on what to recommend against me. Upon calling my case, the chairman of the panel told me that he knows me very well, he had asked questions about me from my commander at Gwagwalada command and he received a good report about me, why did I engage in exam malpractice? When I responded that I did not engage in exam malpractice, the chairman responded by saying that all I should have been doing before them was to plead "alocutus”, rather than defend myself, as they had made up their minds to recommend reduction in my rank and termination of my appointment, and that was exactly what happened thereafter.
c) Even though I had pleaded not guilty, I was not allowed to say my own part of the story before the panel, I was only asked questions by the chairman which I answered, and that was all, yet, I was found guilty and recommended for termination of appointment and reduction in rank.
d) I suffered double jeopardy in that the exam I wrote, which was alleged to have leaked was cancelled as our punishments and I was made to write the same exam again, which I did and still passed, but my appointment was later terminated on the same ground, after he had served the punishment.”

[38] The above alleged breaches of the disciplinary procedure undertook by the Defendants shall be equally addressed sequentially.

a.     Addressing this issue recourse shall be made to the query letter (exhibit C5) and the Regulation (exhibit C13). The query letter expressly stated that the Claimant had allegedly contravened Regulation 15(3) (a) of the Regulation. Said Regulation provides thus:

PART IV – MISCONDUCTS RELATING TO INFORMATION AND QUALIFICATION

(15) (3) Any member of the corps who:

a.     Cconceals any misconduct committed by another member of the corps which comes to his knowledge or

b.     Makes any report maliciously or out of ill will commits a misconduct and liable to reductio in rank.

on the other hand, from the recommendation of the FDP (exhibit D3) I have garnered that the Claimant was found to have committed two offences: a) wilfully and unlawfully concealing a gross misconduct relating to unathorised disclosure of the batch ADRC promotion exam questions and b) aiding and abetting disclosure of confidential matter. For comprehension purpose, relevant excerpt of exhibit D3 is reproduced below:

·        DRC AT Popoola c-05869 (D1) of the Gwagwalada Unit Command on or about 14th September 2019 did wilfully and unlawfully conceal a gross misconduct relating to unauthorised disclosure of the Batch A DRC promotion exam questions committed by RMAI AD Awojobi, M-1107-16189 and DRC TT Olaleye C-06151, which came to your knowledge and thereby committed gross misconduct contrary to and punishable under Regulation 15(3)(a) of the FRSC Regulation on Discipline 2018.

·        DRC AT Popoola c-05869 of the Gwagwalada Unit Command on or about 14th September 2019 did aid and abet RMAI AD Awojobi, M-1107-16189 and DRC TT Olaleye C-06151 in the disclosure of confidential matter (2018 Batch A DRC promotion exam questions), thereby committed gross misconduct contrary to Regulation 49(a) and punishable under Regulation 49(a) and (b) of the FRSC Regulation on discipline, 2018.

By a combined reading of the query issued to the Claimant (exhibit C5) and recommendation of the FDP (exhibit D3), it is my finding that though the Claimant was queried for wilfully and unlawfully concealing a gross misconduct, an offence provided for and punishable under Regulation 15(3)(a) and (b) of the Regulations, the recommendation made provision for an additional offence and punishment which was not included in the query i.e the offence of aiding and abetting disclosure of confidential matter; an offence which is punishable under Regulation 49(a) and (b).

A major requirement for fair hearing is that the alleged offender is informed promptly and, in a language, he understands and in detail, the nature of the offence for which he is charged. The rationale behind this is that it affords the alleged offender the opportunity to defend himself to the best of his ability. In this instance, the Defendants proceeded to probe the Claimant for an offence that was not in his query, conducted investigation and made recommendations whilst ignoring the fact that this offence carries a more grievous punishment than the offence contained in the query letter issued to the Claimant. I am convinced that this is a fundamental breach of right to fair hearing which this Court cannot overlook.

b.     With regard to opposition stated in paragraph 5(b) of further witness statement on oath, I find that the breach complained of is weightless as same is erected in thin air, there is no evidence in support of this averment that is capable of proving that the panel, specifically the chairman was biased against the Claimant. This averment is at best in the realm of speculations which the Court cannot rely on. See OGBONNA V. OGBUJI (2014) 6 NWLR (PT. 1403) 205@ P. 227 PARAS B-C, OGBORU V. UDUAGHAN )2-13_ 13 NWLR) PT. 1370) 22 @ P. 58 PARA. F.

c.      In response to opposition in paragraph 5(c) of further witness statement on Oath, where Claimant claims that he was denied fair hearing as he was not given the chance to speak in his defence before the panel, rather, he was only permitted to answer questions put to him by the chairman of the panel. I must state that this averment of the Claimant is flawed as fair hearing in administrative parlance simply requires that an employee alleged to have committed an offence is given adequate notice of the allegations levied against him and afforded the opportunity to make representation in his defence. See the classic case of BABA V. N.C.A.T.C. & ANOR (1991) 5 NWLR (PT. 191) 388, A.T.A. POLY V. MARINA (2005) 10 NWLR PT. 934, See also ONONGANWAN MARY NTEWO V. UNIVERSITY OF CALABAR TEACHING HOSITAL & ANOR (2013) LPELR – 20332 (CA) where it was held that administrative panels are set up with the primary purpose of fact finding in respect of matters that may require investigations as part of a disciplinary procedure, hence, all that is required is that they be guided by the principle of natural justice in the sense that all people involved be notified of any allegations against them and be afforded adequate opportunity to answer them. In this present case, the Claimant was queried, the query spelt out the allegations against him, to which he made written representations in his defence. Hence, contrary to the claims of the Claimant, it is my finding that the Claimant was afforded fair hearing.

d.     This claim of double jeopardy lacks substance. From the entirety of evidence before me, the previous examination was cancelled because of the leakage of examination questions. Hence, the need for another examination. Now, Regulation 55(1) provides thus:

“55. (1) Where a member of the Corps is facing disciplinary action or investigation, he shall be allowed to participate in the promotion exercise. Provided that he will not be decorated with his new rank until the final determination of the disciplinary action or investigation.”
From the foregoing, the Claimant who at that time was facing disciplinary actions was permitted to write the examination, he indeed passed and his name came out on promotional list (exhibit C4) but was never decorated. Instead, he got a termination letter (exhibit C8). I make bold to say that even if the Claimant’s employment was not terminated as at the time of decoration of successful candidates, he wouldn’t have been decorated until finding of innocence by the FDP in line with Regulations 55(1).

[39] Also, it is the claim of the Claimant that contrary to the Regulation, the FDP failed to make available its report to him so as to appeal. However, the Defendants in paragraph 11 of joint amended statement of defence pointed out that the report was made by the FDP on 15th November 2019 and the Claimant issued an appeal on 18th November 2019. On my part, I have carefully evaluated exhibits D3 (report of FDP), and exhibit C7 (Claimant’s appeal) to the effect that the FDP issued a report of its findings and recommendation on 15th November 2019, same was executed by its members on 18th November 2019. On 19th November 2019, the Claimant had issued an appeal against the recommendation of the FDP to the appropriate authority. This to my mind is circumstantial evidence to the effect that the Claimant was informed of the outcome of the panel inquiry. The averment of the Claimant that he got a whim of the recommendation during the disciplinary proceeding is not sufficient and same lacks substance. 

[40] Notably, the Claimant as can be seen in paragraph 13 of statement of facts is of the opinion that the offence for which his employment was terminated carries the punishment of demotion, hence, the termination of his employment by the Defendants is unlawful. I wish to categorically reiterate that the Claimant was queried for an offence punishable by reduction in rank in line with Regulation 15(3) (a) and (b) whereas, he was terminated for offence contained and punishable under Regulation 49 (a) and (b). This is a gross affront to the principle of fair hearing and natural justice which cannot and must not be upheld by a Court of justice. In addition, the employment of the Claimant is one coated with statutory flavour. The implication of this is that any disciplinary action against the Claimant must be done in strict compliance with the procedure set out in the statute or condition of service. See OLORUTOBA-OJU V. ABDUL-RAHEEM (2009) ALL FWLR (PT. 497) 1 @ 46-47 where the Supreme Court held thus:

“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for by the statute or Regulations made thereunder, any person in that office or employment enjoy a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. Where a contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void.”

[41] I am minded to state that the Defendants as can be seen on the termination letter (exhibit C8) terminated the employment of the Claimant on the grounds that his services were no longer required. A lay man may argue that the termination has no nexus with the disciplinary procedure which this Court has now held to be void. However, it is glaring from the pleadings of parties in this suit and evidence adduced that the disciplinary action and eventual termination of the Claimant cannot be divorced from each other. Generally, employers are at liberty to terminate for good, bad or no reason at all. However, the Courts are now shifting from this position of law and now embracing modern labour practices as encapsulated in Article 4 of Termination of Employment Convention, 1982 No. 158, which provides that:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”

[42] Consequently, the summary of my findings are thus:

·        The Claimant was queried for willfully and unlawfully concealing a gross misconduct an offence provided for and punishable under Regulation 15(3)(a) and (b) of the Regulations.

·        His employment was terminated for  aiding and abetting disclosure of confidential matter an offence punishable under Regulation 49(a) and (b) of the Regulation.

·        That the offence contained in the query letter carries punishment of reduction in rank and seeing that the Claimant’s employment was terminated, the Defendants have failed to strictly comply with the set procedure in the Regulation.

[43] On the whole, I am confident that the Claimant has established infringement of the Regulation on the part of the Defendants in terminating his employment. The termination of his employment is therefore unlawful, null and void ab initio. I so hold. Now it is the law that when a Court concludes that the employment of an employee is coated with statutory flavour and that the termination of his employment is unlawful, null and void, the employee in that case is entitled to reinstatement. See COMPTROLLER-GENERAL CUSTOMS V. GUSAU (2017) 18 NWLR (PT. 1598) 353 @ P. 386-387, PARAS H-B.

[44] With regard to claims for damages for unlawful termination of employment, it was the law that an employee whose employment was wrongfully terminated cannot get both damages and an order of reinstatement. See NIGERIAN SOCIETY OF ENGINEERS V. OZAH (2015) 6 NWLR (PT. 1454) 76. Nonetheless, the law has evolved from the common law obtuse position that a victim of wrongful termination of employment is only entitled to earned entitlements and salary in lieu of notice. To determine the quantum of damages, every case must be determined on its facts See, SAHARA ENERGY RESOURCES LTD V. OYEBOLA (2020) LPELR-51806 (CA) and SKYE BANK V. ADEGUN ((Supra) @ p. 48-49, paras G-A where Hon. Justice Ogunwumiju JSC held that:

“The new labour jurisprudence with the 3rd Alteration to the 1999 Constitution and the provisions of the law in that regard, particularly Section 7(6) of the National Industrial Court Act mandates that every Court in the land shall have recourse to good or international best practices in labour or industrial relations. I do not think the Courts should continue to use the former settled position of the law which is that no matter how hurtful, unreasonable or wrongful the termination of appointment is, the employee is only entitled to one month’s salary in lieu of notice to determine the quantum of damages”.

[45] Given that the Defendants breached the contract of employment by failing to adhere strictly to its Regulations; it is my finding that the Claimant is naturally entitled to damages and deciding otherwise would amount to permitting the Defendants to benefit from their wrong. Consequently, the quantum of damage shall be stated in the latter part of this judgment. I so hold.

[46] On the claim for promotion to be at par with his mates, I must say that promotion is not a right but rather a privilege. It is not a right in the ordinary sense, however if an employee establishes bad faith or entitlement, the Court could step in to enforce same. In this instance, the initial promotion exam was canceled due to leakage of examination questions for which the Claimant was found culpable. It is for this reason that the Defendants organised another examination which the Claimant passed. However, in line with Regulation 55(2), he was not decorated since he was facing disciplinary action at the time. Seeing that the Claimant was found culpable for willfully and unlawfully concealing a gross misconduct an offence punishable by reduction of rank in accordance with Regulation 15(3) (a), I am of the firm view that the Claimant is not entitled to an order of promotion to be at par with his mates. I so hold.

[47] The Claimant can be seen to be claiming for withheld salaries (paragraphs 20 -21) of the statement of facts, the Claimant claims that his salaries for the months of January 2019-September 2019 and that since November 2019 when he was handed to the police for investigation over allegation of conspiracy, cheating and criminal misappropriation, a substantial part of his salary was withheld until January 2021, when his salary was completely stopped. In proof of this claim, the Claimant tendered his pay slip (exhibit C12) and statement of account (exhibit C13). I have carefully perused both the pay slip and statement of salary account. I find that although the payslip indicates salaries from January 2019 – September 2019 as paid, no such payment was reflected in the salary account of the Claimant. In the absence of any other evidence, it stands that the Defendant failed to pay salaries for these referred months. I so hold.

[48] With regard to illegal deductions from November 2019 to January 2021 which according to the Claimant was as a result of illegal interdiction, I am minded to state that there is no express evidence or in form of admission by Defendant that the Claimant was placed on interdiction. However, I have noted that from March 2020 to January 2021 when the Claimant’s salary was stopped, 50% of Claimant’s gross earning was withheld by the Defendants under the heading of “day unentitled to pay”. I make bold to say that even to a lay man this would be regarded as an interdiction. Now the Regulations is silent with regards to interdiction or procedure for interdiction for the offence such as the one alleged against the Claimant. Thus, by virtue of Regulations 69 of the same Regulations, recourse shall be made to the public service rules. Now Rule 100404 of the PSR provide thus:

PSR 100404.— (i) Where a serious case that may lead to dismissal has been instituted against an Officer, the Permanent Secretary/Head of Extra-Ministerial Office may interdict him on not more than half pay pending the determination of the case.
(ii) Recommendations to the Commission for interdiction shall be made only if it is against the public interest that the Officer should continue to perform any of the duties of his rank. When the charge against him is such that the continued performance of his present duties is against the public interest or prejudicial to the investigation of the charge against him, consideration shall be given to putting him on alternative duties. Interdiction shall only be resorted to where this is not possible.
(iii) When an Officer is interdicted, he shall cease to report for duty. In the letter informing the Officer of his interdiction it shall be indicated that the proportion of emoluments he is to receive while on interdiction shall be 50 per cent of his emoluments.
(iv) If proceedings under Rule 100404 (i) reveal that he is not guilty of the charge made against him, the Officer shall immediately be reinstated and shall receive the full amount of his emoluments denied him while he was interdicted.
(v) If the Officer is found guilty but is not dismissed, he may be refunded such portion of the emoluments denied him as the Commission may determine.

[49] Due to provision of PSR 100404(iii) an officer who has been interdicted shall be informed in writing indicating that the proportion of emoluments he is to receive while on interdiction shall be 50% of his emolument. It is clear that the Defendants failed to adhere to this provision. However, it is not clear whether this interdiction was in reaction to the offence as contained in Regulation 15(3)(a) or cheating and misappropriation and this Court is not permitted to speculate. However, seeing that the Defendants failed to comply with conditions provided in PSR 100404 which is to inform the officer to be interdicted, it is my stance that the ‘silent’ interdiction is unlawful, therefore the Defendants are liable to refund the deductions made in that regard to the Claimant. I so hold.

[50] Now I have carefully examined payslips for the months of November 2019 – January 2021. I find that deductions were made for NHF home renovation loan and Schoviejel cooperative in December 2019. In January 2020, deductions were made for NHF home renovation loan only. In February 2020 to November 2020 deductions were made for both NHF home renovation loan and Schoviejel cooperative. In December 2020 deduction was made for only NHF home renovation loan. In January 2021 deductions were made for both NHF home renovation loan and Schoviejel cooperative.

[51] I have equally examined the home renovation loan agreement (exhibit C19), Schoviejel cooperative agreement (exhibit C20) and Schoviejel cooperative (exhibit C21). For the NHF home renovation loan captured in exhibit C19, it was agreed that the sum of N23,485.03(Twenty-Three Thousand, Four Hundred and Eighty-Five Naira, Three Kobo) would be deducted from Claimant’s salary for a duration of 4 years (48 months) from the date of disbursement. There is no evidence relating to the date of disbursement; however, this agreement was executed 13th June 2016. Thus, it is safe to presume any time after 13th June 2016 and by my calculation, as at January 2020 (in the absence of any contrary evidence such as payment of lumpsum in satisfaction of the loan), the loan was still running. Thus, the Defendants were right to make deductions in that regard.

[52] With regards to deductions from Claimant’s salary to Schoviejel cooperative, the Claimant has stated that the Defendants lacked the right to make these deductions from his salary as the agreement between him and the cooperative was personal. Nonetheless, I have painstakingly examined the loan agreement between the Claimant and Schoviejel cooperative (exhibit C20). The Claimant had agreed for the sum of N29, 000 (Twenty-Nine Thousand) to be deducted from his salary from the months of August – December 2019. Furthermore, from exhibit C21 which is also a loan agreement between one Abubakar Suleiman and Schoviejel cooperative, the Claimant stood as guarantor and agreed to “take responsibility of paying back the loan sum and expenses incurred in recovering the loan in case of default by the borrower. It was the terms of agreement that the loan sum and interest may be deducted, thus the Claimant further provided his IPPIS details. It is worthy of note that this loan was to run from 1st August to 31st January 2020. By my calculation, the loan taken by the Claimant sums up to N145,000 (One Hundred and Forty-Five Thousand Naira) whilst that which he stood as guarantor sums up to N229,200 (Two Hundred and Twenty-Nine Thousand, Two Hundred Naira). I do not have sufficient evidence to decide whether the Claimant’s salary was being deducted for his loan alone or inclusive of the loan for which he stood as guarantor. This has made it difficult and literally impossible for me to determine this issue. I must reiterate that Courts are not permitted to make speculations. Also, this damages sought by the Claimant for illegal deductions as it relates to Schoviejel cooperative, are special in nature and must therefore be proved specifically. See SUFFOLK PET. SERVICES LTD. V. ADNAN MANSOR (NIG) LTD (2019) 2 NWLR (PT. 1655)1 @ P. 30 PARAS F-G, IBRAHIM V. OBAJE (2019) 3 NWLR (PT. 1660) 389 U.B.N. V. CHIMAEZE (2014) 9 NWLR (PT. 1411) 166. Seeing that the Claimant has failed to adduce cogent evidence in support of this leg of his claim, it is unfortunately bound to fail. I so hold.

[53] I am mindful to state that the Defendants in their amended pleadings raised an issue to the effect that the Claimant’s case is statute barred. An issue which seemed to have been abandoned until the Defendants’ Counsel surprisingly raised the issue at the conclusion of Defendants’ final written address. I wish to refer the Defendants to the previous ruling of this Court dated 15th June, 2023 addressing the same issue. This would simply mean that the Defendants revisited this point, especially since jurisdictional matters should be raised timeously, not belatedly at the address stage, after the Court has invested significant time and effort in the proceedings. In any case, having decided on this issue previously, this Court is now functus officio. Thus, argument in that regard is discountenanced.

[54] From the above reasoning, and all that has been said in entirety of my decision, it is the finding of this Court that the claims of the Claimant succeed partially. I so hold. Hence, this suit is hereby determined as follows:

Reliefs 1, 3, 4, 5, 7, 8, and 14 succeed.

Reliefs 2, 9, 11, 12 and 13 succeed partially.

Reliefs 6 and 10 fail.

It is hereby declared and/or ordered as follow:

1)     The termination of the employment of the Claimant by the Defendants, communicated to him via a letter dated 18th December 2020 is unlawful and void ab-initio. The termination of the Claimant’s employment having been held unlawful is hereby set aside. The Defendants are ordered to reinstate the Claimant.

2)     The Defendants are to pay the Claimant his salaries, allowances, bonuses and other entitlements, which have fallen due or have or would have accrued to him in the normal course of his employment with the Defendants during the period of the illegal termination of his employment between 14th December 2020 and the date judgment is entered in favour of the Claimant in this case.

3)     The non-payment of the Claimant's earned salaries for the period between January, 2019 to September 2019, cumulatively in the sum of N839,175.32 Eight Hundred and Thirty-Nine Thousand, One Hundred and Seventy-Five Naira, Thirty-Two Kobo) only after all deductions without justification is illegal and a breach of the contract of employment subsisting between the Claimant and the Defendants.

4)     The Defendants shall pay to the Claimant, the sum of N839,175.32 (Eight Hundred and Thirty-Nine Thousand, One Hundred and Seventy-Five Naira, Thirty-Two Kobo) only, being the earned net salaries and other entitlements of the Claimant, illegally not paid by the Defendant between the months of January 2019 to September, 2019.

5)     The withholding of the Claimant’s salary from March 2020 to January 2021 under the heading “days unentitled to pay” is illegal and a breach of the contract of employment subsisting between the Claimant and the Defendants.

6)     The Defendants shall pay to the Claimant, the sum of N910, 207.43 (Nine Hundred and Ten Thousand, Two Hundred and Seven, Forty-Three Kobo) only, being sum of salaries withheld under the heading “days unentitled to pay” from March 2020 – January 2021.

7)     The Defendants shall pay to the Claimant, the sum of N1, 000, 000.00 (One Million Naira) as general damages for illegal termination of Claimant’s employment and illegal withholding of Claimant’s salary from January 2019- September 2019 and March 2020 to January 2021.

8)     The Defendants shall pay to the Claimant, the sum of N300,000.00 (Three Hundred Thousand Naira) only as cost of this action.

9) In the event of default, the Defendants shall be liable to pay post judgment interest at the rate of 10% of the total judgment sum entered in favour of the Claimant, from the day judgment is entered, until judgment of this Court is fully liquidated.

Judgment is hereby entered accordingly.

 

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Hon. Justice Rakiya Bosede Haastrup

Judge