Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT CALABAR BEFORE HER LORDSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE DATE: January 16th, 2014 SUIT NO.NICN/EN/188/2012 BETWEEN Chinyere Doni Amakiri - Claimant AND Independent National Electoral Commission - Defendant REPRESENTATION O. G. Adah for claimant No appearance for defendant. JUDGEMENT The Claimant filed a complaint on the 2nd November 2012 against the defendant seeking the following reliefs: 1. A declaration by the Honourable Court that the purported dismissal of the claimant by the defendant through the letter dated 29th September 2011 is not only wrongful but that it is invalid, null, void and without any legal effect. 2. An Order of the Honourable Court reinstating the claimant as a staff of the defendant and into her rightful position with all rights and privileges accruing therefrom and a further payment of all Salaries, Arrears, Entitlements, Allowances, etc to which the claimant is entitled to receive. Accompanying the complaint is the statement of facts, name of witness, witness statement on oath and copies of documents to be relied upon. The defendant was served with the originating processes on the 18th December 2012 but it did not enter appearance. Hearing notice was subsequently served on the defendant at every sitting but the defendant was not present neither was it represented by counsel. This suit is therefore undefended. The claimant’s case on the pleadings is that at all times material to this case, she was a staff of the defendant employed on the 21st day of January 1999 as Personnel Officer II on Salary Grade Level 08. The claimant pleaded that the defendant which is an Agency of the Federal Government of Nigeria is established by the Constitution of the Federal Republic of Nigeria 1999 as a body corporate with perpetual succession and has zonal operational offices in all the states of Nigeria including Rivers State, Port-Harcourt. That the claimant’s hard work was very satisfactory to the defendant, and through a letter dated April 2001 confirmed her appointment. The claimant pleaded that on the 20th day of December 2010 the defendant promoted her to rank of Principal Administrative officer, Grade Level 12 with effect from 1st July 2008. She pleaded that she worked in the defendant’s zonal operational office, Port-Harcourt, Rivers State for more than 12 years before she was deployed on the 27th day of March 2011 to Edo State to serve as Electoral Officer in the 2011 General Election to be conducted by the Defendant. She averred that on arrival at Edo State the Defendant posted her to Ovia South West Local Government Area of the State to act as the Electoral Officer in the General Election. The Claimant pleaded that before she was deployed to Edo State, the defendant had already recruited, trained and employed ad hoc staff for the election which include Presiding Officers, Supervisors, Ward Returning Officers, Local Government Area Returning Officers etc. The claimant pleaded that the ad hoc staff receive electoral materials from her, distribute them to the various wards and units. They also conduct the elections in the Units, Wards and Local Government Area, collect the results and submit the result to the Local Government returning officer who declares and announces the result. And that one of these ad hoc staff was one Dr. Paul Iroghama whom the defendant recruited, trained and appointed as the Local Government Area Collation Officer for the General Election in Ovia South West Local Government of Edo State before the deployment of the Claimant. She pleaded that the poll officers conduct elections and record result of same in the various units of each ward of the Local Government Area. That the poll officers record the result of each unit and submit same to the supervisor who then submits to the ward returning officer who in turn collates and submits to the Local Government Collation Officer Dr. Paul Iroghama who then collates all the results and forward same to the returning officer. The Claimant pleaded that her duty does not include the collation and announcement of results. She averred that she did not collect, collate and or announce any result during the Ovia Federal Constituency election of April, 2011. She pleaded that her duties are to collect materials from the defendant’s Edo State Headquarters, distribute same to the ad hoc staff, oversee that the election is smooth and reporting any act of disturbance, obstruction or violence in any area under her control to the Police or any Law Enforcement Agent. She pleaded that Ovia Federal Constituency is made up of two Local Government Areas namely; Ovia South West and Ovia North East and the Headquarters of the Constituency is Ovia South West where Dr. Paul Iroghama was the Local Government Collation Officer. That during the election, one of the Political Parties protested to her that the result the Local Government Collation Officer was about to announce did not reflect the real and genuine result of the election in one of the wards in that Local Government Area. She pleaded that she immediately contacted the Resident Electoral Commissioner of the State who instructed her to make sure that the result from the various Units of that ward was properly cross checked and scrutinize to enable her get the real and genuine result: and that she also contacted the police and other law enforcement agents sent to monitor the election. She pleaded that because of the disagreement between Dr. Paul Iroghama and the representatives of the Political Parties she did not allow Dr. Paul Iroghama to announce the disputed result but insisted that Dr. Paul Iroghama should present the original result sheet collated from the polling units of the ward. That as result of her insistence, Dr. Paul Iroghama brought out the originals of the result sheets from the Units and it was properly cross-checked and the proper result was discovered and recorded accordingly. That on the 11th of April 2011, she was shocked to hear Comrade Adams Oshiomole, the Executive Governor of Edo State in a State broadcast on election process making a vow that he will deal ruthlessly with her as the Electoral Officer of Ovia South-West Constituency for attempting to falsify election result. That the Executive Governor of Edo State caused the Attorney General of the State to raise a petition against her to the Commissioner of Police, Edo State and she was invited due to the petition against her. That in response she made a statement in writing, twice, in the police station. The claimant pleaded that at this material time, she was pregnant and ill. That she informed the Police of her intention to go for medical treatment and the police agreed to contact her, if need be, through her lawyer Barrister Nosa Obazamonwan a Legal Practitioner with a law office at Benin or through her office. That on the 14th July 2011 while still receiving treatment she received a query from the defendant that she refused to respond to Police Invitation to investigate the Ovia South West Local Government Area attempt by some ad hoc staff of the defendant to falsify the result of that election. She pleaded that she responded to that query. That after this incident she was redeployed to the Edo State Commission’s office of the Defendant. She pleaded that the police concluded their investigation but did not find her culpable and so did not prosecute her before any court of law. That during the Ovia South West Local Government area election she was pregnant and after the election she was sick and had to be hospitalized at the University of Port-Harcourt Teaching Hospital, Port-Harcourt. She pleaded that on the 19th day of July 2011 she applied and proceeded on maternity leave. That on the 12th day of August 2011, a day after she was discharged from the hospital, which was a day after she had lost her baby boy just delivered; and while still on maternity leave she received a text message from the defendant’s Edo Office that an Investigation Panel set up by the defendant to investigate the attempt to falsify Ovia South West Federal Constituency election result by some ad hoc staff was coming to Benin the next day and that the she should come to Benin. That she immediately replied the text and also wrote to the Chairman of the Panel to explain her health conditions. That the Head of the Panel called her on phone and asked her to come to Abuja whenever her health has improved and she is strong so that the Panel will hear from her. She pleaded that on 14th September 2011 while still on maternity leave and in spite of her health and condition she went to Abuja on their request to meet with the Panel, that though the Panel members were sitting, as that was their last date; they refused to hear from her. The Head of the Panel met her outside and asked her to state orally and privately to her what she knows about the case. That after her oral explanation the Head of the Panel informed her that she has no case to answer because their investigation revealed that it was the ad hoc staff that attempted to falsify the result without her knowledge, and that their recommendation exonerated her. She pleaded that while still on leave the defendant sent a letter dated 29th September 2011 and titled DISMISSAL FROM SERVICE which purports to have dismissed her from service on the 7th day of September 2011. That apart from the Investigation Panel set up to investigate the ad hoc staff over the alleged attempt to falsify the Ovial South West election which Panel did not hear from the Claimant, the Defendant did not set up any Panel to investigate her neither was she sent to court for any involvement in election malpractice by the police after their thorough investigation. The claimant pleaded that the defendant apart from breaching the INEC Staff Conditions of Service in the present circumstances, also did not give her the right to be heard by the Panel. She pleaded that on receipt of the dismissal letter, she protested over the dismissal in a letter dated 12th October 2011 and titled PROTEST AGAINST WRONGFUL DISMISSAL FROM SERVICE OF INEC. That in spite of the letter of protest, the defendant refused to withdraw the letter and rescind its action. She pleaded that through her lawyer, she served One Month Notice of her intention to commence an action dated 28th October, 2011 yet the defendant did not rescind the said letter of dismissal. She averred that recently, her colleagues on same level have been promoted. The claimant testified as the only witness in support of her claims. Her evidence in chief was by witness statement on oath which she adopted. It was in the exact terms of the pleadings. In the absence of the defendant to defend the matter, the claimant closed her case and the matter was adjourned for closing address. The claimants counsel raised two issues for determination as follows: 1. Whether the claimant’s appointment with the defendant has any statutory flavor? 2. Whether the clamant is entitled to the relief sought? He submitted that by the claimants letter of appointment her condition of service are as applicable in the Federal Public service Rules and the INEC staff conditions of service which are both Regulations deceiving from statutory provisions. He submitted that the claimant is entitled to all the reliefs sought as her dismissal was not in accordance with the Federal Public Service Rules and the INEC Staff Conditions of Service. The claimant’s counsel submitted that chapter 3, Regulation 030306 of the Federal Public Service Rule and paragraph 3.07 of the INEC staff condition which prohibits disciplinary proceedings against a female employee on maternity leave was breached by the defendant. He also submitted that there is no evidence that the claimant committed any serious misconduct or has been convicted and therefore the defendant breached paragraphs 3.16 and 3.17 of the INEC Rules. Counsel submitted that the entire process of dismissal of the claimant infringed on section 36 (1) of the 1999 Constitution, was not in accordance with her conditions of service. He urged the court to follow the decision of this court in Henry Mbonu v Independent Electoral Commission (unreported) Suit No NICN/EN/51/2012 and grant the claimant’s reliefs. I have carefully considered the processes, the evidence and written submission and will adopt the issues formulated by counsel as the issues for determination in this judgement. As stated earlier, the defendant did not bother to defend this action in spite of being served with the originating processes and hearing notice at every sitting.. The effect of a party’s failure to call evidence in defence of a claim against him is that he is presumed to have admitted the case made against him by the other party and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd [2006] Vol.6, MJSC 123, Consolidated Res Ltd v Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v Marinho [2006] 15 NWLR (Pt 1002) 316. This however does not mean automatic victory for the claimant because she must succeed on the strength of her case and not rely on the fact that there is no defence before the court. The absence of evidence by the defendant does not exonerate the claimant of the burden of proof placed on her by law. See section 131 (1) & (2) of the Evidence Act 2011, Ogunyade v Oshunkeye [2007] 15 NWLR (Pt 1057) 218. The claimant must adduce credible evidence worthy of belief. Evidence does not become credible merely because it is unchallenged. See Akalonu v Omokaro [2003] 8 NWLR (Pt 821) 190. The question which now arises is which category of employment is the claimant’s. Section 318 of the 1999 Constitution as amended defines the meaning of Public Service of the Federation, Chapter 1 Regulation 010101 of the Public Service Rules identifies and describes Officers of the Public Service of the Federation; Section 1 Chapter 16 is the application of the Public Service Rules to Federal Government Parastatals; and authority for appointment is pursuant to Section 10 (3) of the INEC Act 1999 and Regulation 1.01 of the INEC Staff Conditions Of Service. I find 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. I hold that her employment is one with statutory flavour. From the Medical Reports issued by the University of Port Harcourt Teaching Hospital which are in evidence before the court, the claimant as at 29th April 2011 when she was first admitted was 16 weeks pregnant and in view of the relapsing nature of her condition was placed on bed rest and was finally discharged on 27th May 2011. She was again admitted on the 31st July 2011where an assisted vaginal breech delivery was done. She lost the baby and was finally discharged on the 11th August 2011. She was asked to appear before an Investigation Panel on the 12th August 2011 in Edo State which is a day after being discharged. While still on Maternity leave she appeared before the Panel in Abuja on 14th September 2011 and she was not heard. The evidence also shows that the claimant had applied for Maternity leave on 19th July 2011. What the evidence shows is that the claimant was being made to face disciplinary proceedings when she was ill and on Maternity leave. Chapter 3, Regulation 030306 of the Federal Public Service Rules and Article 3.07 of the INEC Staff Conditions of service provides as follows: 030306 – Any disciplinary proceedings against a female staff which might otherwise have been taken during the period of her maternity leave shall be postponed until the leave has expired. Such postponed, however, shall not in any way prejudice the proceedings against her. MATERNITY LEAVE 3.07 Disciplinary proceedings against a female employee which might otherwise have been taken during the period of her maternity leave shall be postponed until her maternity leave has expired. Such postponement shall not in any way prejudice the proceedings. I find that the defendant in commencing disciplinary proceedings against the claimant who was due to be delivered of a baby and on Maternity leave breached the above provisions. The procedure for disciplinary proceedings and dismissal in the INEC Staff Conditions of Service is reproduced as follows: 3.19 DISCIPLINARY PROCEDURE An employee may be dismissed/terminated compulsorily retired on the recommendations of the appropriate Committee and in accordance with the following disciplinary procedures unless otherwise provided in the Condition of Service: (a) The Commission shall set up a committee to investigate the offence(s) committed by an employee. (b) An employee shall be notified in writing of the offences for 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 day must allow a reasonable interval) any grounds upon which he relies to exculpate himself. (d) Where the employee does not furnish any representations within the time specified, the Commission may take appropriate action against him or as recommended by the appropriate Committee. (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. (f) Where an employee submits his representation and the committee is not satisfied that he has exculpated himself, it shall proceed accordingly. (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 furnish with a written statement thereof and the same steps shall be taken as prescribed in respect of the original grounds. (i) Upon considering the representation of an employee, the Committee is of the opinion that the employee does not deserve to be dismissed, it shall recommend other punishment as appropriate, including surcharge in the case of proven negligence, occasioning loss or damage of property. (j) Upon considering the representation of an employee and, the Committee is of the opinion that the employee does not deserve to be dismissed, but the acts of the case disclose grounds for requiring him to retire, it shall direct accordingly. (k) Where witnesses are called to give evidence, the employee shall be entitled to be present to examine the witnesses. (l) The Committee shall make a report to the Secretary/Commission where he/it considers that the report shall be amplified in any respect or that further enquiry is desirable, may refer any matter back to the committee for further inquiry or report accordingly. (m) Upon considering the report of the committee together with all evidence and material documents relating to the case, the Commission is of the opinion that the employee shall be dismissed, such action shall be taken immediately. (n) Where the Commission does not approve an employee’s dismissal, and does not consider that any penalty should be imposed, the employee shall be reinstated forthwith and shall be entitled to full salary. (o) Where the Commission considers that an employee deserves a lesser punishment, it shall apply such penalty as appropriate. 3.18 DISMISSAL (a) An employee, whether or not under interdiction or suspension found guilty of any criminal offence, may be summarily dismissed. When the officer is acquitted on appeal, he shall be reinstated and, paid all emoluments for the period. (b) An employee may also be dismissed on the following grounds:- (i) failure on initial appointment, to disclose a conviction for any criminal offence; (ii) serious misconduct, whether or not, in relation to the performance of his duty; (c) An employee shall not be dismissed in accordance with paragraph (a) or (b) above until:- (i) he has been informed of the grounds on which he being dismissed or being considered for dismissal, the case may be; (ii) he has been given an opportunity for submitting representations to the Commission through the Secretary; and (iii) the Commission has considered his representation and the recommendations (if any) of the Head of Department/relevant Committees. (d) An employee dismissed in accordance with this paragraph shall hand-over all properties of the Commission in his possession/charge to such person as the Secretary may direct. I find that without complying with the mandatory provisions of Articles 3.07, 3.18, 3.19 of the INEC Staff Conditions of Service, Regulation 030306 of the Federal Public Service Rules the defendant dismissed the claimant. 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 dismissed the claimant. 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 dismissal must be strictly complied with, her employment being one with statutory flavour. Consequently, I hold that the claimant’s dismissal by the defendant is null and void and of no effect. She is entitled to automatic reinstatement. She is reinstated into the service immediately as Principal Administrative Officer with all the rights and privileges she is entitled to as a Grade Level 12 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 dismissal of the claimant by the defendant through the letter dated 29th September 2011 was done in breach of the applicable conditions of service and the Constitution of the Federal Republic of Nigeria 1999. 2. The claimant’s dismissal as Principal Administrative Officer on Grade Level 12 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 Principal Administrative Officer with all the attendant rights and privileges of her Grade Level and with no loss of seniority. 4. The defendant is ordered to immediately release and pay the claimant her emoluments/ allowances and other entitlements due to her from September 2011. 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