IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 26^th November 2025                                      SUIT NO: NICN/ABJ/64/2023

 

Between:

 

Michael Akogwu                                                 -                                               Claimant

 

And

    

1. The Nigeria Police Force

2. Inspector General of Police                                                                               Defendants          

3. D.C, State CID, Anambra                                                                                         

4. C.P, Anambra State Command                                                

 

Representation:

Okoro Tochukwu Prosper, with him, C. C. Amuka for the Claimant

No appearance for the Defendants

 

   JUDGMENT

The claimant instituted this action against the defendants on 14^th March 2023. In his amended statement of facts filed on 13^th November 2023, the claimant sought these claims against the defendants:

1.        A declaration that the Claimant was unlawfully dismissed from the services of the 1^st Defendant based on unfounded and unsubstantiated allegations of aiding and abetting one Nonso Ikegwuonu, an armed robbery suspect.

2.        A declaration that the Defendants denied the Claimant the right to be heard by the refusal of CSP James Nwafor to grant him the opportunity to question the suspect and avail the Claimant an opportunity to appeal his orderly room trial of the 1^st day of April, 2012.

3.        A declaration that the Defendants violated the Claimant's Fundamental Human Right to fair hearing as guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and also under the African Charter of Human and Peoples' Rights as domesticated in Nigeria.

4.        An order setting aside the dismissal of the Claimant on the account of the proceedings of the orderly room trial held on the 26^th day of April, 2013 on the ground that same was wrongful, invalid, null and void and of no effect whatsoever for breach of the Claimant's right to fair hearing.

5.        An order that the Claimant is still an Officer of the 1^st Defendant and thus entitled to the immediate payment of all his accrued monthly salaries in the approximate sum of N2,976,000.00 as a Corporal from the 26^th day of April, 2012 AND immediate of approximately N7,920,000.00 as salary due to the Claimant as at when his mates were promoted to the rank of Inspector.

6.        An order directing the 1^st and 2^nd Defendants jointly to immediately pay the Claimant all his accrued salaries from the date of his purported dismissal in 2013 to the date of reinstatement.

7.        An order directing the Defendants jointly to reinstate the Claimant into the services of the 1^st Defendant on the rank of an Assistant Superintendent of Police (ASP) effective on the date of judgment of this suit or on such other rank as may be due to him at the date of judgment of this suit and to accord the Claimant all the promotion he would have earned during the period of the purported dismissal including all his privileges and entitlement/benefits without any victimization.

8.        An order restraining the Defendants jointly whether by themselves or their privies, officers, servants or anyone or group of people acting through them from further giving effect to the Wireless Message dated 111600/06/2013 or further treating the Claimant’s employment services with the 1^st Defendant as having been determined by dismissal.

9.        An order restraining the Defendants jointly from further taking any disciplinary action against the Claimant in respect of the proceedings of the orderly room trials held on 1^st day of April 2012 and 26^th day of April 2013 respectively to avoid the Claimant from being continuously tried on the same facts and transaction in respect of the said trial.

10.      General damages in the sum of N5,000,000.00 against the 1^st Defendant solely.

11.      Cost of the suit in the sum of N3,000,000.00 against the 1^st Defendant solely.

12.      25% post judgment interest on judgment sum from date of judgment until final liquidation.

 

CASE OF THE CLAIMANT

The evidence adduced by the claimant in proof of the above claims is that he was enlisted into the service of the 1^st Defendant, the Nigeria Police Force, on the 1^st June 2000 as a Sergeant. He was serving in the Anambra State Police Command as at the time of his dismissal from service in June 2013. Before his dismissal, he was the Exhibit Keeper at the SARS, Nnewi. His role as an Exhibit Keeper was to record and ensure the safe custody of items or property seized during investigation and to see to the correct disposure of the items when authorized by the investigation team or any senior Police Officer. In the course of his duty, he had disputes with CSP James Nwafor, who was his Sector Commander at SARS as at the time, and CSP James Nwafor threatened to dismiss him from the Nigeria Police Force. He was on duty as the Charge Room Officer, together with CPL. Akinyimnu Gideon, CPL. Monday Onate and CPL. Brisibe Morula on 17^th March 2012 when one Nonso Ikegwuonu, an armed robbery suspect and a notorious criminal, was transferred from SARS Nnewi to the Unit SARS cell where he was attached. He participated in questioning the suspect before the suspect was put into the cell that night. In the morning of 18^th March 2012, they discovered that the suspect had escaped from the cell. When CSP James Nwafor arrived, he instructed an officer to default the claimant and the officers on guard the previous night for negligence. The claimant and the other officers on duty were thereafter billed for an orderly room trial which trial held on the 1^st April 2012. The claimant said he was punished with demotion from the rank of Sergeant to Corporal for his negligence leading to the escape of the suspect.

 

It is the practice that an officer who is dissatisfied with an orderly room trial can apply to appeal for a review. He applied to appeal the orderly room trial but his application was denied and the denial was influenced by CSP James Nwafor and officers acting under his prompting. As a result, he was denied the right to be heard but he accepted his fate and continued to serve the 1^st Defendant until he was transferred to IGP’s Special Task Force on Heinous Crimes, Zone C, Onitsha, Anambra State. When at his new posting, he was invited again for another orderly room trial on the same issue of Nonso Ikegwuonu’s escape from SARs cell. This second orderly room trial was conducted on the 26^th April 2013 and in the trial, he was accused by the suspect, Nonso Ikegwuonu, to have aided his escape from the defunct SARS cell in Nnewi. The claimant said he was not allowed to cross-examine or ask the suspect any question and he was detained for days until the morning he was given a Police Wireless Message, dated 111600/06/2013, informing him of his dismissal from the service of the 1^st Defendant. The claimant said his right to fair hearing was violated by the defendants in the orderly room trial. He wrote a letter of appeal against his dismissal on 21^st June 2022 but the Defendants failed to remedy his improper dismissal.

 

CSP James Nwafor mocked him upon his dismissal and he believes that CSP James Nwafor masterminded the events in order to fulfill the threats. The suspect, Nonso Ikegwuonu, does not know him and he did not play any part in the suspect’s escape from the Police cell. After he was reduced in rank, he tracked down Nonso Ikegwuonu, re-arrested him and took him to the Sector Commander, CSP James Nwafor, at SARS, Awkuzu. He was therefore shocked that Nonso Ikegwuonu accused him of being involved in his escape from detention. His lawyers wrote a letter dated 17^th August 2022 to the Police requesting for the CTC of records of proceedings but the request was not granted. His dismissal has caused him untold embarrassment and financial hardship and loss. He also incurred cost of payment of legal fees and filing expenses in instituting and prosecuting this suit.

 

In his additional evidence, the claimant said since his unlawful and illegal dismissal from the service of the 1^st Defendant in 2013, he has not been able to secure a decent job or to sustain himself and his family. The other officers with whom he was demoted as punishment for the escape of the Nonso Ikegwuonu were returned to the previous ranks while he was in detention as a result of the allegation of conspiracy made against him by Nonso Ikegwuonu. His mates are still in the service of the 1^st Defendant and they have been promoted to the rank of Assistant Superintendent of Police as a matter of course.

 

The claimant tendered 4 documents in evidence marked Exhibits A, B, C and D.

 

DEFENCE

The originating processes were served on the defendants but none of the defendants filed statement of defence in the suit. None of the defendants entered appearance in the suit and were not represented despite service of several hearing notices on them. The result is that the defendants refused to participate in the suit and they were accordingly foreclosed from defending the suit.

 

FINAL ADDRESS OF THE CLAIMANT

The Claimant’s Final Written Address was filed on the 14^th day of May 2025. A sole issue was formulated for the Court’s determination. I have considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Claimant. I do not see the need to rehash their contents herein. However necessary reference will be made to them in the course of this judgment.

 

DECISION

The claimant was a police man employed into service of the 1^st defendant on 1^st June 2000. He was dismissed from the service of the 1^st defendant in June 2013 vide the Signal marked Exhibit B. The claimant brought this suit to challenge his dismissal whereby he sought, in relief 1, a declaration that his dismissal was unlawful. He also sought consequential orders setting aside the dismissal, reinstating him back to service, promoting him to the rank of his mates and payment of arrears of his salaries. See reliefs 4, 5, 6 and 7.

 

I have stated earlier that the defendants did not file statement of defence in the suit and they did not call evidence in defence of the suit. It was on this account the learned counsel for the claimant submitted in paragraphs 4.8 to 4.14 of the claimant’s final written address that the facts and the evidence presented by the claimant were not challenged by the defendants and the implication is that the facts were admitted by the defendant. Counsel added that the claims of the claimant for which the facts and the evidence were adduced are therefore deemed established. I cannot fault the arguments of counsel. That is the law. However, that principle of law is not applicable in all circumstances where the defendant did not file defence or defend the suit. One of such situations is where the claimant’s principal claim is a declaratory claim. Declaratory claims are grantable only upon cogent, satisfactory and credible proof of the claims by the claimant. Such claims cannot be granted on the basis of admission by the defendant or on the weakness of the defendant’s case or even on want of evidence from the defendant. See YUSUF vs. MASHI [2017] All FWLR [Pt.912] 664; SULE vs. HABU [2012] All FWLR [Pt.643] 1910. In ADDAH vs. UBANDAWAKI [2015] 7 NWLR [Pt. 1458] 325, the Supreme Court held thus:

“The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy, in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declaration by his own evidence. The weakness of the defendant’s case does not assist the plaintiff’s case. He swims or sinks with his own case”.

 

In this case, the claims in reliefs 1, 2 and 3 are declaratory claims. It therefore means that the fact that the defendants did not file defence or adduce evidence does not entitle the claimant to automatic success of these claims. The burden of proof is squarely on the plaintiff and where he fails to prove his case, his case will be thrown out notwithstanding the fact that the defendants did not defend the suit. See ELEGUSHI vs. OSENI [2005] 14 NWLR [Pt. 945] 348 at 368; OGUNYADE vs. OSHUNKEYE [2007] 15 NWLR [Pt. 1057]218 at 246. Accordingly, the claims of the claimant are to be considered and determined solely on the basis of the evidence adduced by him and the success or failure of his claims depends on the strength of the evidence adduced in proof of the claims. 

 

It is settled law that where a claimant seeks that his dismissal from his employment be declared unlawful or wrongful, the determination of the claim is principally based on the terms and conditions of the employment contract. The claimant, in other to succeed in his claim, is expected to plead and prove the terms and conditions of his employment; the circumstances under which he can be dismissed from the employment under the condition of service; the procedure stipulated in the condition of service for dismissal and the manner in which the dismissal breached the said terms and conditions of his employment. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949; W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512. It is therefore clear that this court can only determine the wrongfulness or the unlawfulness of the claimant’s dismissal on the basis of the terms and conditions of his employment. Accordingly, the first duty placed on the claimant, who is asking this court to declare his dismissal to be unlawful, is to plead and prove the terms of his employment and show how his dismissal breached the terms and conditions of his employment.

 

I have carefully examined the averments of the claimant as well as the evidence adduced by him. In his pleadings, the claimant did not mention the condition of service which regulated his employment with the 1^st defendant and he did not plead the procedure for termination of his employment or dismissal from the service of the 1^st defendant. The claimant did not also plead any fact suggesting that his dismissal was done in breach of any term of his employment. It is the same situation with the evidence adduced by the claimant. In all, the claimant failed to show that his dismissal was done in breach of the terms and conditions of his employment.

 

From the evidence given by the claimant, it is observed that his claim of unlawful dismissal is based only on his allegation of being denied fair hearing by the orderly room trial. As can be seen in reliefs 2 and 3 sought by the claimant, he sought the court to declare that the Defendants violated his right to fair hearing. In his evidence, the claimant said after the first orderly room trial of 1^st April 2012, he applied to appeal the orderly room trial but his application was denied resulting to his being denied the right to be heard. In the second orderly room trial of 26^th April 2013, he was not allowed to cross-examine or ask any question from the suspect, Nonso Ikegwuonu, who testified against him. For this reason, the claimant said his right to fair hearing was violated by the defendants in the orderly room trial. By the evidence, the claimant’s claim of unlawful dismissal is clearly founded on his allegation of denial of fair hearing by the orderly room trial rather than on breach of the terms and conditions of his employment.

 

When the claimant averred that his right to fair hearing was violated by the defendants in the orderly room trial, he did not link the allegation to any provision of the condition of service. That is to say the claimant’s allegations of denial of fair hearing have not been shown by him to be based on any breach of the terms and condition of service regulating the employment. The claimant cannot rely on breach of fair hearing alone to challenge the dismissal without showing that the breach of his right to fair hearing arose from the breach of the terms and conditions of his employment. In AJI vs. CHAD BASIN DEVELOPMENT AUTHORITY [2016] All FWLR [Pt. 824] 175 at 187, the Supreme Court held thus:

            “What can be stated to be solid rock position of the law with regards to an action by an aggrieved employee on the termination or dismissal from service is that, to found his case, there is no running away from pleading and proving his contract of service to substantiate his claim. In the case at hand, throughout the particulars of claim, there is no plea of the condition of service governing his employment with the respondents and in evidence, nothing is put forward from which those conditions can be ferreted out and no document evidencing the condition of service. It therefore needs to be said that waving the flag of a breach of fair hearing entrenched in the Constitution as per section 33 of the Constitution of the Federal Republic of Nigeria 1979, prevailing at the time of the action’s commencement, which section is in pari materia with the current section 36 of the Constitution of the Federal Republic of Nigeria 1999, does not provide the saving grace. This is because in the absence of pleading and establishing the contract of service, the court is left without the working tools with which it can consider the case advanced by the employee as to whether or not there was breach. In other words, the breach cannot exist in vacuo and such a situation produces the absence of a condition precedent, which cannot be waived, being fundamental”.

 

The claimant cannot found his case solely on the allegation of denial of fair hearing. He must, as of necessity, found his case on the condition of service and it is only in the basis of the condition of service that the wrongful nature of his dismissal can be determined. The issue of fair hearing or lack of it is tied to proof of the terms and conditions of the employment. Therefore, in the absence of proof of the fact that the dismissal violated the terms of his employment, the reliance on breach of fair hearing alone cannot sustain the case of the claimant. See ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION [2007] All FWLR [Pt. 351] 243 at 258. Consequently, the claimant is not entitled to the declarations he sought in reliefs 2 and 3. 

 

The failure of the claimant to mention the condition of service which regulated his employment with the 1^st defendant also affects reliefs 4, 5, 6 and 7 where the claimant sought orders setting aside the dismissal, reinstating him back to service, promoting him to the rank of his mates and payment of arrears of his salaries. Reliefs of this nature are available to employments which are protected by statute. See IKHALE vs. FAAN (2003) FWLR (Pt. 181) 1726 at 1742; ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408. Where an employment or a contract of service is shown to be governed by the provisions of statute or where the conditions of service are incorporated into regulations which derive their force from a statute, the employment of the employee who is a party to such contract of service is said to protected by statute. See IMOLOAME vs. WAEC (1992) 9 NWLR (Pt. 265) 303; OLUSEYE vs. LAWMA (2013) 17 NWLR (Pt. 849) 307 at 318. Where such an employment contract is found to be terminated in breach of the terms of the applicable statutory provisions, the employee is entitled to have the termination set aside and reinstated.

 

When the claimant failed to plead the condition of service which regulated his employment with the 1^st defendant, he equally failed to show that his employment is protected by statute. Although the 1^st defendant is a statutory body, not all employment by statutory bodies has statutory flavor. Thus, until the claimant pleads and proves the condition of service which regulated his employment with the 1^st defendant, this court cannot assume that his employment with the 1^st defendant was statutorily regulated. In the absence of proof by the claimant that the terms and conditions of his employment are statutory, he failed to present any basis for this Court to consider or grant reliefs 4, 5, 6 and 7 sought by him.

 

The claimant attempted to claim that the allegation of negligence in the escape of Nonso Ikegwuonu, an armed robbery suspect, from the cell for which he was dismissed was unfounded. See what he claims in relief 1. In his evidence, the claimant said the suspect does not know him and he did not play any part in the suspect’s escape from the Police cell. He also claimed that CSP James Nwafor may have masterminded the events in order to fulfill his threat to have the claimant dismissed from service. Now, in his evidence, the claimant confirmed that he was on duty, with 3 other officers, on the day the suspect escaped from the cell. He said when the suspect was transferred to his SARS Unit cell, he participated in questioning the suspect before the suspect was put into the cell that night only for them to discover in the morning that the suspect had escaped from the cell. The claimant did not explain how the suspect was able to escape while he was on duty as to show that the escape did not happen as a result of the negligence of all officers on duty or with active connivance of the officers on duty, including himself. How did a suspect on handcuffs and locked up in a cell, escape from the cell in the presence of 4 police officers on duty? It is easy to infer negligence on the part of the officers or even believe that the officers on duty participated in facilitating the escape of the suspect. I find the claimant’s attempt to extricate himself from the escape of the suspect as a feeble attempt.

 

I have thoroughly considered the case of the claimant but I find no merit in it. The claims sought by the claimant have not been proved. The suit fails completely and it is accordingly dismissed. No order as to cost.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge