Download PDF
The claimant took out a writ of summons against the defendant at the Federal High Court Awka on the 12th April 2011 seeking the following reliefs: 1. A declaration that the interdiction and subsequent Termination of the Plaintiffs appointment as Asst Chief Administrative Officer on salary Grade Level 13, with the designation Electoral Officer in the defendant Commission was done in flagrant breaches and/or contravention of the parties applicable conditions of service/ and the Constitution of the Federal Republic of Nigeria 1999. 2. An order setting aside/ nullifying the said order Terminating the plaintiffs appointment as Asst Chief Administrative Officer on Salary Grade Level 13, contained in the commission’s letter of 3rd February 2011 reference No. HQ/SC.210/98. 3. An order for the reinstatement and immediate release/payment of all the plaintiffs outstanding emoluments/allowances and other entitlements due to him from 1st January 2010, in that office, until his due withdrawal/retirement in accordance with the applicable Conditions of service. Accompanying the writ is the statement of claim, the claimant’s written statement on oath and copies of documents to be relied on. The case was subsequently transferred to this court on the 27th April 2012 pursuant to the order of Hon Justice P.F.Olayiwola. The defendant entered appearance on the 31st October 2012 and filed its statement of defence, name of witness, witness statement on oath and copies of documents on the 21st December 2012. The claimant’s reply to the statement of defence was filed on the 21st January 2013. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that by the defendant’s letter of 11th August 1992, he was offered employment as Field Officer ll on Salary Grade Level 08 and the appointment was confirmed by the defendant with effect from 11th August 1994. The claimant pleaded that his appointment is subject to the Federal Public Service Rules 2006, the Independent National Electoral Commission (INEC) Staff Conditions of Service Rules 2007 and the Pension Reform Act 2004. He pleaded that following his satisfactory performance he enjoyed several promotions the last of which was to the position of Asst Chief Administrative Officer on Salary Grade Level 13 from 1st January 2005 with financial benefits from 1/1/2006. The claimant pleaded that the defendant is a Federal Government statutory body constituted under the Independent National Electoral Commission Act Cap 15 LFN 2004 operating with offices in all the State Headquarters and the Capital Territory of Abuja. The claimant pleaded that after the conduct of the 2003 general elections, he was transferred from Anambra State to Akwa Ibom State in 2004 and posted to Udong Uko LGA as Electoral Officer where he conducted the 2006/2007 voters registration exercises. That on 6th April 2007 a few days to the general election he was by letter dated 4th April 2007 re-transferred to Anambra State and that it was not until 5th December 2008 that he was posted to Njikoka LGA in Anambra State as Electoral Officer where he supervised the process of the Continuous Voters Registration (CVR) exercises which ended on 28th September 2009. He pleaded that all the instructions for the exercise emanates from State Resident Electoral Officer (REC) on whose directives the laptop to be used is procured and issued to the Electoral Officers along with the Manual Register Book Which are then handed over to the A.R.O’s and used only in designated areas approved by the defendant for the registration. He pleaded that the process of registration involves the capture of particulars of new entrants recently matured into the required voting age or those not previously captured in the previous /existing Voters Register for the area. That the particulars are then compiled in the Manual Voters Register, simultaneously captured in the laptop (DDC machine) together with the registrant’s photograph and submitted to the Electoral officer for cross checking. The claimant pleaded that after being certified as correct, the laptop is submitted to the ICT Department at the State Headquarters for downloading into the server which is kept exclusively by the ICT Department. The claimant pleaded that all the materials gathered were returned to the Information and Technology Department (I.C.T) at the defendant’s head office in Awka for down loading before the commencement of the display of voters registers. That it is the duty of the ICT Department to blend all the information with the existing Voters Register for the area and to produce the final Voters Registration Data for the area showing both the existing register and the CVR. He pleaded that no complaint came from the ICT Department who handle the printing, cross checking and down loading of data into the Composite Voters registration for the area. The claimant pleaded that the voters display register took place between 31st October – 9th November 2009 and had no hitches nor was any mix up in the data displayed observed or identified. The claimant that one month after the display of the voters register, he received a letter dated 8th December 2009 inviting him to meet an Investigation Panel from Abuja on the Continuous Voters Registration (CVR) exercise of 2008/2009. He pleaded that no complaint or suggestion of any indictment of any type pertaining to his performance/action relative to the inquiry was ever made nor was any specific accusation levied either orally or by any query in writing addressed to him. That upon his attendance at the inquiry, oral questions of a general type on the conduct of the CVR exercise in Njikoka LGA were raised and after the Panel viewed the CVR data they confirmed their satisfaction to him of the quality of work done. He pleaded that the Panel alleged that there was a mix up of the 2006/2007 registration data with that of the CVR data and asked him to assist them on how such a mix up could have occurred. He pleaded that he informed the Panel that he was surprised at that because the custody of the 2006/2007 registration data once collated by the ICT Department of the defendant is no longer available to him or any Electoral Officer and he was allowed to go. He pleaded that the earlier Electoral officer for Njikoka LGA from whom he took over the CVR exercise was not invited to the Panel and the Assistant Registration Officers who did the actual work not invited. The claimant pleaded that three weeks after, he received a letter dated 11th January 2010 placing him on interdiction with immediate effect until the determination of what was described as “his level of culpability/ involvement in the wrong entries in the Register of Voters is concluded”. He pleaded that in compliance with the provisions of the defendant’s staff conditions of service 2007 and section 6 – 160601 of the Public Service Rules he made several appeals in writing to the defendant pleading for a review of the decision. That without any reply to his petitions he received another letter from the defendant dated 3rd February 2011 terminating his appointment with effect retrospectively from 31st January 2011. He pleaded that at no time prior to the interdiction letter or subsequent termination did he ever receive any query whether orally or in writing on any issue whatsoever in the default of the performance of his duties nor was he at the panel inquiry confronted with any specific charge(s), dereliction of duty or complicity in matters pertaining to his culpability/involvement in the alleged wrong entries in the Voters Register. He pleaded that there was no disciplinary process to enquire into any identified complaint against him. He pleaded that he demanded a withdrawal of the said letter of termination through his counsels letter to the defendant dated 22nd February 2011 which the defendant failed to do. He pleaded that his termination is in breach of the INEC Staff Conditions of Service 2007, Federal Republic Of Nigeria Public Service Rules 2006 and section 36 (1) of the 1999 Constitution. The claimant testified as the only witness in support of his claims. His examination in chief was by witness statement on oath sworn to on the 12th April 2011 and 21st January 2013 which he adopted. They were in the exact terms of the pleadings. Under cross examination, the claimant said he was the Electoral Officer that supervised the 2008 – 2009 Continuous Voters Registration (CVR) exercise in Njikoka Local Government Area (LGA) and that there were other officers under his control. He said all the materials were returned to the ICT unit by him but admitted that there were times he gave his subordinates the laptop to take to the ICT unit for download at Awka. The claimant said there was no complaint about the registration exercise in Njikoka LGA in respect of animate or inanimate objects and that he was not aware that the defendant set up any Panel to investigate those complaints. He said he was invited to appear before an Investigative Panel from Abuja with his Assistant Registration Officer (A.R.O.) on the general conduct of the CVR exercise in Anambra State. He said he told the Panel he had no means of verifying what was in the data machines (laptop) given to him by the ICT unit. The claimant said when he took over, he was not aware he was only entitled to one laptop and was so informed by the Panel. He said he told the Panel that he randomly cross checked the data machines. He said he was not aware that the Investigatory Panel sent its report to the disciplinary committee, neither is he aware of the proceedings of the disciplinary committee. The claimant said he was not invited to appear before the disciplinary committee. He said he only received a letter of interdiction and then a letter terminating his employment. He agreed that the defendant can terminate a staff for serious misconduct. Upon re-examination the claimant said he could not verify what was in the data machine because it was not his duty to process or download data. He said he was not accused of any wrong doing before he appeared before the Investigatory Panel or even after. The claimant then closed his case. The case of the defendant on the pleadings is that the Continuous Voters Registration (CVR) exercise supervised by the claimant was marred with wrong entries in the register of voters and irregularities resulting in a mix up in the data displayed by the defendant to the public; a situation that brought the defendant to disrepute and caused her embarrassment and anguish. The defendant pleaded that it was pursuant to the wrong entries and mix up in the register of voters in Njikoka LGA amongst other Local Government Areas in Anambra State that resulted in the defendant inviting the claimant and his Assistant Registration Officer (A.R.O.) amongst others to appear before the Investigation Panel from Abuja. The defendant averred that the claimant and the A.R.O. knew that the inquiry was relative to the wrong entries and mix up in the register of voters in some Local Governments of Anambra State inclusive of Njikoka LGA during the CVR exercise. The defendant further averred that the Investigation Panel was not satisfied with the claimant’s answers and that pursuant to the wrong entries and mix up in the register of voters in Njikoka LGA and the findings of the Panel, they were indicted on 11/02 2010 by the defendant until investigations were concluded. The defendant pleaded that the Electoral Officers for the affected Local Government Areas including Njikoka LGA lumped the 2006/2007 voters registration data with the CVR with the active connivance of four ICT staff of the department. The defendant pleaded that it investigated the allegations against the claimant, found it to be true and very weighty and terminated the claimant’s employment. It pleaded that due process was followed and there were no breaches of its Staff Conditions of Service 2007, the Public Service Rules and the 1999 Constitution. That the termination of the claimants employment was proper and in accordance with the defendant’s Conditions of Service. The defendant called one witness Engr E.T.Akem (DW). His examination in chief was by witness statement on oath sworn to on the 21st December 2012 which he adopted. It was in terms of the pleadings. He further stated orally that under age children and inanimate objects were registered and that there were blurred and unclear photographs of voters. DW stated that he was a member of the Investigation Panel and that on completion of the Investigation the Panel made its report to the defendant in 2009. DW told the court that on 20/09/2010, the Discipline Unit of the defendant submitted a memorandum to the Senior Staff Welfare and Disciplinary Committee (SSW&DC) on the case of allegations of wrong entries in the register of voters for some Local Government Areas in Anambra State. He said that the SSW&DC looked into it and made its recommendations to the defendant. That the defendant deliberated on it and approved the termination of the appointments of the ten Officers who had been on interdiction including the claimant and the decision was communicated to him by letter dated 3/2/2011. He stated that the allegations which resulted in the termination were serious acts of misconduct and that the termination was proper in the circumstances. Under cross examination, DW said he was at the material time the head of ICT Unit and supervised the deployment of the equipment for registration. He told the court his supervision covers Anambra State and that he was involved in the process of registration at the time. DW said the ICT Unit keeps the server recording all the registration for the area covered and that the Electoral Officers have nothing to do with it. DW said the 2006 voters’ registration had been completed before the 2008 CVR exercise. That on completion of the 2006 voter registration exercise the data was sent to the ICT Unit. DW said that in carrying out the exercise all that is given to the Electoral Officers are materials for a manual register and DDC machines (laptops). That after capturing the details at the field, they submit the DDC machines and register to the ICT Unit whose function is to blend the existing register of 2006/2007 with the CVR captured in 2008/2009. DW told the court that the schedule of the Electoral Officers does not include this collation. DW said he was not aware that there was any document informing the claimant about what the Panel came to investigate; that he was aware the voters’ registration was displayed at Njikoka LGA but was not aware that there were any complaints by members of the public in respect of the CVR exercise. DW told the court that the Electoral Officers in the States take instructions from the Resident Electoral Commissioner (REC) and they are duty bound to obey the REC who receives his own instructions from the Headquarters. He said that administratively, the defendant does not communicate with the Electoral Officers directly. DW said part of the allegation against the claimant was the use of more than one laptop but confirmed that the REC authorised the use of more than one laptop. DW told the court that it is not to his knowledge that the claimant was called to another forum after he appeared before the Investigation Panel; that it is not to his knowledge the claimant was contacted before the decision contained in the decision extract dated 15/12/2010; that it is not to his knowledge the claimant was given a query; that it is not to his knowledge the claimant was told anything about the Panel report. DW said that to his knowledge, after the Panel Report the claimant was not given any opportunity to state his side. He said that the Senior Staff Welfare & Disciplinary Committee relied on the Investigation Panel Report and acted on it. DW agreed that a Public Servant should have the opportunity to defend himself in respect of any allegation against him. The defendant then closed its case. The parties were directed to file their final written addresses. The defendant’s final address is dated 4th April 2013 and filed same day. The claimant’s final address is dated 24th April 2013 and filed on the 5th June 2013. Learned counsel to the defendant raised the following issue for determination: Whether or not in the circumstances of this case the termination of the claimant’s Employment was unlawful and wrongful. He submitted that he who alleges must plead and prove to be entitled to the reliefs sought referring to section 131(1), 132and 133(1) of the Evidence Act 2011 and Okeniyi v Akanbi [2002] FWLR (Pt 84) 113 at 124. He further submitted that for a claimant in an action for wrongful termination to succeed, he must place before the court the terms of the employment contract, prove in what manner the said terms were breached by the employer, prove that he was employed by the defendant, state who can appoint and remove him, prove the circumstances under which his appointment can be terminated. He cited Ante v University of Calabar [2001] FWLR (Pt 41) 1909 at 1928, Ozondu v Union Bank [2008] All FWLR (Pt 443) 1389, Ziideeh v Rivers State Civil Service Commission [2007] 4 MJSC 150 at 161-162, Imasuen v University of Benin [2011] All FWLR (Pt 572) 1791 at 1809. He submitted that the claimant has failed to plead and establish the 2nd,4th and 5th ingredients. He further submitted that any action for wrongful termination that omits these essential particulars and thus leaves them to speculation by the court is bound to fail citing Morohunfola v Kwara State of Technology [1990] 4 NWLR (Pt 145) 506, A.R.Momoh v CBN [2007] ALL FWLR (Pt 395) 420 at 442, Okomu Oil Palm Co v Iserhierhien [2001] 3 SC 140 at 145. He urged the court to dismiss the claimant’s action on the above premises. Learned counsel submitted that the claimant has not proved any irregularity in the procedure adopted by the defendant or in what manner his employment was wrongfully terminated. It was his submission that in construing the relationship between the parties, the court must confine itself to the plain words and meaning to be derived from the provisions contained in the INEC staff conditions of service citing CBN v Archibong [2001] 10 NWLR (Pt 721) 492 at 495. He submitted that the claimant was disobedient to lawful orders using three laptops instead of one which amounts to misconduct citing Sule v Nigeria Cotton Board [1985] 2 NWLR (Pt 5) 17. He submitted that the onus of proof of lack of fair hearing is on the claimant citing Imasuen v University of Benin supra, Joseph v First Inland Bank Plc [2010] ALL FWLR (Pt 504) 1407 at 1518. It was his contention that the claimant has not proved specific acts of denial of fair hearing; that the defendant gave the claimant a fair hearing when it invited him to appear before the investigation committee. He cited A.R.Momoh v CBN supra, University of Calabar v Essien [1996] 10 NWLR (Pt 477) 225. He argued in the alternative without conceding that the claimant was not given a fair hearing, that the mere failure to accord the claimant the right to fair hearing is not enough to entitle him to judgement as a case of misconduct has been made out. He referred to Michelin Nig Ltd v Alaribe supra, Baba v Nigerian Civil Aviation Training Center [1991] 5 NWLR (Pt 192) 388, New Nigerian Bank v Obevudiri (1986) 3 NWLR (Pt 29) 387 and urged the court to hold that in the circumstances of this case, the termination of the claimant’s appointment was not unlawful and dismiss the action. The learned SAN adopted the sole issue for determination submitted by the defendant but chose to reward same to read as follows: Whether on the pleadings/evidence canvassed in the suit, the claimant is entitled to the reliefs sought. In reply to the defendant’s submissions that the claimant should prove in what manner the terms of his employment were breached, he referred to paragraphs 4 – 10 of the statement of claim. On the question of “who can appoint and the circumstances under which his appointment can be terminated” the learned SAN submitted that the defendant has admitted Paragraph 1, 2, 3, 7 and 9 of the of the statement of claim which set out the details of the claimants appointment/services, identifying the defendant as a Federal Government statutory body regulated by the provisions of the aforesaid statutory regulatory provisions set out in paragraph 10 of the pleading covering both matters of appointment in the Commission and the concurring disciplinary measures applicable as between the Commission and its employees. He submitted that it is equally the law that a party relying on any statutory defense or pleading does so validly either by pleading the statute specifically or at least plead facts upon which the point may be taken up on his behalf at the trial as was done in this instance. The learned SAN submitted that all the required component pieces of evidence relating to the claimants appointment, status, service details and the applicable operative staff conditions of service were adopted in the claimant’s written statements on oath which constitutes the testimony of the party along with the exhibits relied upon under the present disposition in the Rules of this court without more citing Hon Barr. Etene v Hon Savior Nyong & Ors [2012] 37WRN 113. He argued that the defense submissions on this score are misconceived in that the elements alleged unproved, missing or invoking speculation from the court cannot either on the facts put before the court or the law be sustained. He cited Abubakar v Waziri [2008] 50 WRN 164 at 186, Isheno v Julius Berger Nig Plc [2008] 23 WRN 35 at 54, Onyenweuzor v Opusunju [2002] 6 NWLR (Pt 762) 72. On the issue of proof of the wrong doings for which the claimant was first indicted and finally terminated, It was his contention that this must involve the consideration of the principles of fair hearing. He submitted that on the state of the pleadings and evidence, the defendant has unequivocally admitted the lack of fair hearing in the matter before rushing to the determinations and actions complained about. That the absence of any modicum of justification in ascribing guilt to the claimant in any manner also stands out conspicuously. He urged the court to so hold and cited Alhaji Abdullahi Baba v Nigerian Civil Aviation Training Center Zaria & Anor [1991] 5 NWLR (Pt 192) 388. The learned SAN submitted that after the Investigation Panels Inquiry and the findings in its report implicating members of staff, the defendant did not comply with the relevant sections of the INEC Staff Conditions of Service and the Public Service Rules 2006 by issuing a query to the claimant before determining his fate. He submitted that there is no question that the defendant is a statutory body making it imperative for it to comply fully with the statute regulating the appointments of such staff relying on Olaniyan v University of Lagos[1985] 2 NWLR (Pt 9) 599, Shitta-Bey v Federal Civil Service Commission [1981] 1 SC 40 at 61, Federal Civil Service Commission v Laoye [1989] 2 NWLR (Pt 106) 652. He finally submitted that the claimant’s appointment being one with statutory flavour, the failure of the Commission to comply with the pervading Rules/Regulations renders the purported interdiction/termination of the claimant’s appointment null, void, of no effect and automatically entitles the claimant to the reliefs sought in Paragraphs 11 (i), (ii) and (iii) of his statement of claim. He urged the court to uphold the reliefs sought. I have carefully considered the processes filed, the evidence led, written submissions and authorities cited. In my view the sole issue as reworded by the learned SAN captures all the issues raised by the parties in this case. I will therefore adopt the issue as formulated by the learned SAN as the issue for determination in this judgement. There is no dispute between the parties on the following facts: (i) that the defendant is a statutory body constituted under the Independent National Electoral Commission Act Cap 15 LFN 2004; (ii) that the claimant was employed by the defendant; (iii) his appointment is subject to the Federal Republic of Nigeria Public Service Rules, Independent National Electoral Commission (INEC) Staff Conditions of Service and the Pension Reform Act 2004; (iv) he was promoted to the position of Assistant Chief Administrative Officer on Salary Grade Level 13; (v) was posted to Njikoka Local Government Area on 5th December 2008 as Electoral Officer where he supervised the Continuous Voters Registration exercise which ended on 28th September 2009. The question which then arises is which category of employment known to law is the claimant’s. The evidence before the court is that his employment is governed by the Federal Republic of Nigeria Public Service Rules and the INEC Staff Conditions of Service Revised Edition 2007. The claimant is also in the established Pensionable Cadre. The INEC Staff Conditions of Service states in Paragraph 1.01 that “all appointments shall be made on the authority of the Commission as provided in Section 158 (1) of the Constitution of the Federal Republic of Nigeria 1999”. Furthermore, section 160 (1) of the 1999 Constitution as amended empowers the Commission “to make its own rules or otherwise regulate its own procedure.” I hold that the claimant’s contract of service is governed wholly by the provisions of statute and the conditions of service are as contained in the Regulations deriving from statutory provisions. See Shitta-Bey v Federal Civil Service Commission [1981] 1 SC 40, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589, Olaniyan v University of Lagos [1985] 2 NWLR (Pt 9) 599. The Federal Public Service Rules and the INEC Staff Conditions of Service have both been made pursuant to the powers conferred by the Constitution. The claimant’s employment is not only statutory but has constitutional force. I therefore hold that his employment is protected by statute or is one with statutory flavour. See Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Olaniyan v University of Lagos [1985] 2 NWLR (Pt 9) 599, Iderima v Rivers State Civil Service Commission [2005] 16 NWLR (Pt 951) 378. The defendant in justifying the termination of the claimant’s appointment has alleged that the Continuous Voters Registration (CVR) exercise of 2008/2009 supervised by the claimant in Njikoka LGA of Anambra State was marred with wrong entries in the register of voters and irregularities resulting in a mix up in the data displayed by the defendant to the Public, a situation which caused her embarrassment. The evidence before the court is that a Panel was set up by the defendant to investigate the irregularities with DW as a member. Its terms of reference were: 1. To investigate the cases of allegations of wrong entries into the data base of the Register of Voters for some LGAs in Anambra State. 2. To establish culpability for the conduct and make appropriate recommendations for sanctions. 3. To recommend measures for preventing future occurrences. The Letter inviting the claimant to meet with the panel is reproduced as follows: MR DAYAN MOORE LGA NJIKOKA INVITATION TO THE INVESTIGATION PANEL You are directed to meet with the investigation panel from Abuja on the Continuous Voters Registration of 2008/2009. You are directed to attend with your Assistant Registration Officers. Date: 17th December 2009 Time: 12.00 noon Venue: Conference Hall, INEC State Office, Please endeavour attend and on time. Otti C.E HOD (Operations) For: Resident Electoral Commissioner The Investigation Panel in Paragraph 3.0 of its report stated as follows: The Panel had rigorous interview sessions with selected staff that were in Anambra State at one time or the other since the clean up exercise kicked off. Each interviewee was briefed on the fact finding mission of the panel and asked to give an account of what they know about the wrong entries in the Anambra State Register of Voters. The claimant is listed as Witness 21 in the report and his interview session is reproduced as follows: “I am an Electoral Officer of Njikoka LGA of Anambra State. I assumed Duty as Electoral Officer of Njikoka LGA on 05/12/2008. I was at the State Headquarters before my posting to Njikoka. I took over from one Samuel. The number of registered Voters for 2007 General Elections was seventy five thousand, three hundred and thirty one (75,331). At the time I took over, only about one thousand, three hundred (1,300) were registered in the CVR. The total CVR registration as at 29/09/2009 was seven thousand, eight hundred and fifty four (7,854). The final number of registered voters for the 2010 Gubernatorial Election for my LGA is eighty eight thousand, three hundred and eighty seven (88,387). The total figure when the 2007 registration figure is added to the CVR figure is eighty three thousand, one hundred and eighty five (83,185). I randomly cross check the CVR. I have never been trained on the CVR software. I have seen the data for 2006/7 registration existing in the CVR. I do not have the capacity to know how these data was lumped into the CVR data. I personally bring the laptops to the ICT Unit at Awka for downloading. Sometimes though, I send my staff. I just drop the laptops and leave; I do not wait to see how the download takes place. I have no means to check if the laptops were purged before giving us the laptops for registration. At the time I took over, only one laptop was used for the CVR Exercise. I was given additional two laptops early this year. I only became aware that one laptop should be used at a LGA level for CVR in August this year. It was the REC who approved the use of additional laptops for CVR Exercise. I am aware that the data generated will be used to issue PVC”. . Some of the findings on the terms of reference are as follows: i. It was observed during the processing that back up sets brought for reprocessing contained mixed up data of 2006, 2007, 2008 and 2009 registrants; a back up set meant for an LGA would contain data from several LGAs. ( Sample of processed data is attached as Annexture II ). j. Some of the registers also bore pictures from almanacs, school kids in school uniforms and inanimate objects. (Sample registers as printed in Annexture III ). k. The Resident Electoral Commissioner authorized the use of more than one laptop per LGA contrary to the Commissions directive. l. These additional laptops released to the LGAs for the CVR Exercise on the directive of the REC were not purged of the 2006/2007 data. m. The CVR exercise was extended to the ward level and even beyond in violation of the Commissions directive to limit it to the LGA headquarters. n. The following LGAs were discovered to have the 2006/7 data lumped up with the CVR: i. Anambra East ii Anambra West iii. Awka North iv Dunukofia v. Idemili North vi Njikoka vii Nnewi South viii Nnewi North ix Onitsha North x Orumba North and xi Orumba South o. Though the Electoral Officers denied, we found as a fact that the intensity of the pressure of the Electoral Officers on the ICT Unit made the Head of the unit gather all the data he found, irrespective of when it was generated, and brought same for reprocessing in Abuja. p. That there was insufficient supervision of the Registration Officials by the Electoral Officers. q. There is laxity in the ICT Unit. r. The data were purposely brought for processing knowing fully well that they were 2006/7 data. s. Due to the carelessness and inefficiency of the ICT Unit, the 2006/7 data found its way into the CVR. The Investigation Panel then recommended the termination of the claimant’s employment in accordance with the INEC Conditions of Service for lumping up the 2006/2007 data with the CVR data. The evidence of the claimant before the court which has been corroborated by DW is that he takes instructions from the Resident Electoral Commissioner (REC). The Panel found that the REC authorised the use of more than one laptop. DW corroborated the claimant’s testimony that his duty as Electoral Officer is to collect the DDC Machine from the ICT Unit at Awka, hand it over to the registration officers and supervise the registration exercise. The registration officers then register new registrants both manually and with the DDC machines. When the DDC Machine is full, he takes it back to the ICT Unit Awka for downloading. DW in cross examination also corroborated the claimant’s evidence that it is the duty of the ICT Unit after the exercise to download the data supplied and merge the existing register with the supplementary register into one composite voter’s registration list. DW also corroborated the claimant’s evidence that the data was in the custody, control and possession of the ICT Unit. The Investigatory Panel found that due to the carelessness and inefficiency of the ICT Unit, the 2006/2007 data found its way into the CVR exercise. By its own findings, there was no basis for recommending the termination of the claimant’s appointment. I do not find any evidence or proof of wrong doing by the claimant in the course of his duties as the Electoral Officer in Charge of Njikoka LGA during the CVR exercise 2008/2009. He is not responsible for the mix up of the 2006/2007 voters registration data with the CVR data and I so hold. The claimant’s evidence is that after his appearance at the Panel he received a letter of Interdiction from the defendant. He said he was not aware the Panel Report was submitted to the disciplinary committee neither was he asked to appear before the disciplinary committee. His evidence is corroborated by DW who under cross examination told the court that: “To my knowledge after our report, the claimant was not given any opportunity to state his side. They were relying on our report. It is not to my knowledge that any query was given to the claimant. It is not to my knowledge that the claimant was told anything after our report. The Senior Staff Welfare & Disciplinary Committee acted on our report. I agree that a Public Servant should have the opportunity to defend himself in respect of any allegation against him.” The claimant has complained that in Interdicting him and subsequently terminating his appointment the defendant breached Articles 3.07, 3.10, 3.13, 3.14, 3.16, 3.19 (a), (c), (e), (g), (h), (k) of the INEC Staff Conditions of Service, Section 030302, 030307 (i), (ii), (vi), (vii), (xiii) of the Federal Public Service Rules 2006 and Section 36 (1) of the 1999 Constitution. They are reproduced as follows: 3.07 AUTHORITY AND DELEGATION Disciplinary power over employees on grade level 07 and above is vested in the Commission while those on grade level 01 - 06 at the Headquarters is vested in the Secretary in the case of states/FCT, disciplinary power is vested in the Administrative Secretary. Recommendations for disciplinary action in respect of senior staff shall be made to the Commission by the Senior Staff Discipline & Welfare Committee (SSD&WC). In the case of junior staff, recommendations shall be made by the Junior Staff Committee (JSC) to the Secretary or the Administrative Secretary as the case may be. 3. 10 DISCIPLINARY MEASURES In all cases, the fault of the employee shall be brought to his notice through the issuance of a query before final disciplinary action Proven cases of misconduct shall attract any of the following:- (a) Advice (b) Verbal Warning (c) Written Warning (d) Serious Warning (e) Last Warning (f) Retirement (g) Termination (h) Dismissal 3.14 INTERDICTION (a) An employee shall be liable to interdiction where he has :- (1) Been charged with a criminal offence, whether or not connected with the Commission. (II) Been found guilty of serious misconduct. (b) A formal notice of interdiction shall be given to the employee in writing. The notice shall state the reasons for such interdiction and the date it takes effect. The interdicted employee shall be paid half of his monthly emolument from the date of his interdiction pending the determination of his case. (c)An interdicted employee shall keep his department informed of the address at which instructions can be delivered. (d) Where an employee under interdiction is found not guilty he shall be reinstated and receive the balance of his salary. Where it is found undesirable that he should continue in the service of the commission, his appointment shall be determined as appropriate. 3.16 TERMINATION (a) A confirmed employee may have his appointment terminated by the Commission on grounds of general inefficiency provide that he has previously been warned at least twice. The appointment of an employee may be terminated for one single act of grave inefficiency subject to credible investigation report. 3.19 DISCIPLINARY PROCEDURE An employee may be dismissed/terminated compulsorily retired on the recommendations of appropriate Committee and in accordance with the following disciplinary procedures unless otherwise provided in the Conditions of Service: (a) The Commission shall set up a committee to investigate offence(s) committed by an employee. (b) An employee shall be notified in writing of the offences which action is being taken. (c) An employee shall be called upon to state in writing, prior to the day appointed for the hearing of the case (which they must allow a reasonable interval) any grounds upon which he relies to exculpate himself. (e) An employee shall be informed when his case will be brought before the Committee. He shall be required to appear before it and entitled to call witnesses. Failure to appear shall not invalidate the proceedings of the Committee. (g) No documentary evidence shall be used against an employee unless he has previously been supplied with a copy thereof or given access thereto. (h) Where during the course of the inquiry, further grounds for disciplinary are disclosed and the committee deems it fit to proceed against an employee upon such grounds, the employee shall be furnished with a written statement thereof and of the same steps shall be taken as prescribed in respect of the original grounds. (k) Where witnesses are called to give evidence, the employee shall be entitled to be present to examine the witnesses. 030302- As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him/her, it shall be his/her duty so to inform the officer in writing giving details of unsatisfactory behaviour and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether: (a) The officer has exculpated himself/herself in which case, he/she shall be so informed in writing and no further action shall be necessary, or (b) The officer has not exculpated himself/herself but it is considered that he/she should not be punished in which case the appropriate formal letter of advice shall be issued to him/her and he/she shall be required to acknowledge its receipt in writing or (c ) The officer has not exculpated himself/herself and deserves some punishment, in which case Rule 030304 shall apply. 030307- Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule: (I) The officers shall be notified in writing of the ground on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to such documents. The officer shall be called upon to state in writing within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself. (II) The query, or preliminary letter, shall be in the format shown in Appendix II. (VI) The officer shall be informed that, on a special day the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board. (VII) Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto; (XIII) All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases. 36 (1)- In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. The defendant has stated in paragraph 6 of its pleadings and admitted in paragraph 10 of its witness statement on oath that pursuant to the report of the Investigation Panel the claimant was placed on Interdiction until the review and determination of his level of culpability/ involvement in the wrong entries. It is trite law that parties are bound by their pleadings and that there is no burden incumbent on a party to prove facts admitted by the adversary party. See Tijani Jolasun v Napoleon Bamgboye [2010] 18 NWLR (Pt 1225) 285. I find that the defendant relied as it were, on the report of the Investigation Panel and denying the claimant a fair hearing rushed to mete out serious disciplinary sanctions. The employer’s duty where a Panel of Inquiry has made out a case against an employee has been succinctly put by the Supreme Court in the case of Alhaji Baba v Nigerian Civil Aviation Training Center [1991] 5 NWLR (Pt 192) 388 at 418, [1991] 2 NSCC 145 at 158 per Nnaemeka-Agu JSC : But once the panel has concluded its inquiry and makes up its mind that any points had been prima facie made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services. Where those points amount to crime, the case must be reported to the police for investigation and possible prosecution. I find that without complying with the mandatory provisions of Articles 3.10, 3.14, 3.16, 3.19 of the INEC Staff Conditions of Service, Section 030302, 030307 (i), (ii), (vi), (vii) and (xiii) of the Federal Public Service Rules the defendant placed the claimant on Interdiction when he was not charged with a criminal offence or found guilty of serious misconduct and then proceeded to terminate his employment. I hold that the defendant was in breach of the above mandatory provisions of the claimant’s contract of employment and section 36 (1) of the 1999 Constitution when it terminated the claimant’s employment. The defendant is a Federal Government statutory body and must carry out its activities in line with its governing laws, rules and procedures. The rules regulating discipline and the termination of the claimant’s employment must be strictly complied with, his employment being one with statutory flavour. Consequently, I hold that the termination of the claimant’s appointment by the defendant is null and void and of no effect. He is entitled to automatic reinstatement. He is reinstated into the service immediately as an Assistant Chief Administrative Officer with all the rights and privileges he is entitled to as a Grade Level 13 Officer and with no loss of seniority. See Shitta-Bey v Federal Public Service Commission supra, Iderima v Rivers State Civil Service Commission supra, Olatunbosun v NISER Council [1983] 3 NWLR (Pt 80) 25. For all the reasons given above, I hereby declare and make the following orders: 1. The Interdiction and subsequent Termination of the claimant’s appointment was done in breach of the parties applicable conditions of service and the Constitution of the Federal Republic of Nigeria 1999. 2. The Termination of the claimant’s appointment as an Assistant Chief Administrative Officer on Grade Level 13 with the designation of Electoral Officer is null and void. It is of no effect and is hereby set aside. 3. The claimant is reinstated into the service immediately as an Assistant Chief Administrative Officer with all the attendant rights and privileges of his Grade Level and with no loss of seniority. 4. The defendant is ordered to immediately release and pay the claimant his emoluments/ allowances and other entitlements due to him from 1st January 2010. I award in favour of the claimant cost of N50,000.00 to be paid by the defendant. Judgement is entered accordingly. ---------------------------------------- Hon Justice O.A.Obaseki-Osaghae