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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: February 16, 2015 SUIT NO. NICN/CA/65/2012 BETWEEN MR. EMMANUEL AMBROSE BASSEY - CLAIMANT AND INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) - DEFENDANT REPRESENTATION Sylvanus Obot, with Blessing Udoh (Miss) for the claimant. Jacob Akpong, with K. Sigalo, E.Ezeh, R.N. Adeyemi (Mrs) for the defendant. JUDGMENT The claimant filed this complaint against the defendant on the 3rd August 2012 seeking the following reliefs: 1. A declaration that the purported dismissal of the claimant from the service of the defendant via a letter with Ref No. INEC/HQ/AK/C.144/VOL.1/89 dated 15th May, 2012 was unlawful, unconstitutional and null and void for want of due compliance with Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria; and the Provisions of the Defendant's Staff Conditions of Service and Federal Civil Service Rules. 2. An order of this honourable court setting aside the defendant's purported dismissal letter dated 15th May 2012 with Reference No. INEC/HQ/AK/C.144/VOL.1/89 same being null and void having been issued in gross breach of the Constitution of Nigeria and the defendant's Staff Condition of Service applicable to the claimant. 3. A declaration that the defendant who approved a study leave with pay to the claimant cannot (in the circumstance of this case) subsequently demand in her letter of 11th June 2012 from the claimant for the refund of the salary collected by the claimant while on Study Leave with pay. 4. An order of this honourable court setting aside the defendant's letter of 11th June 2012 with Reference No. INEC/AK/C.114/93 demanding from the claimant for the refund of salary collected while on Study leave with pay. 5. A declaration that the claimant is still an employee and in the service of the defendant and therefore is entitled to all his right and privileges due and accruable to him. 6. An order of this honourable court reinstating the claimant and or directing the defendant to reinstate the claimant as the staff of the defendant and to pay all his rights, privileges, benefits and entitlements due and accruable to him from January 1, 2003 until judgment is delivered and also after the judgment. 7. An order of this court awarding the sum of N15 Million as general damages against the defendant for her unlawful act against the claimant. 8. And for such further or other order(s) as this honourable court may deem it fit to make in the circumstance of this suit. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon. The defendant entered appearance, filed its statement of defence, witness statement on oath and copies of documents to be relied upon on the 3rd March 2013. The claimant filed a reply on the 25th July 2013. The claimant’s case on the pleadings is that he was employed as a Computer Analyst on Salary Grade Level 08 Step 3 by the defendant and his appointment was confirmed on 14th August 2001. He pleaded that his employment enjoys statutory backing and is regulated by the public service rules; defendant's staff conditions of service and other relevant laws. The claimant averred that he sat for Federal Civil Service Examination and was successful. That thereafter his salary was harmonized and he was elevated to the position of a System Analyst I on Salary Grade Level 09. The claimant pleaded that sometime in the year 2003, he was admitted into the University of Luton, United Kingdom for a M.Sc Degree Certificate in Advance Computing (Computer and Internet Applications) from September 20, 2003, and applied to the defendant for study leave with pay in line with the Conditions of Service which the defendant approved by letter. The claimant averred that he left for University of Luton and successfully started the programme, but that he had health issues and regularly broke down. That the period of the incessant ill-health and admission in the hospital did not allow him satisfy the mandatory class attendance required before writing the exams. This resulted in his prolonged stay and inability to complete the course of study within the scheduled time and return to Nigeria to resume work with the defendant. He pleaded that he applied to the defendant through his Resident Electoral Commissioner for an extension of time and was obliged by the defendant but he got seriously ill again and was unable to sit for the final examination.The claimant pleaded that he applied again to the defendant for further extension of time but without pay just to enable him complete the programme but the defendant turned down his request and refused to approve further extension of time for him by letter dated 27 March 2009. That he did not receive the defendant's said letter of 27th March 2009 until sometime in 2011 when he finally completed his course and returned to Nigeria. The claimant averred that by 16th October 2008 when he applied for further extension of study leave without pay, the defendant had stopped paying his salary which was the only source of financing his studies in the UK; and he took a domestic job to support himself in order to complete his studies. The claimant pleaded that he applied for resumption of duty after completion of his study and submitted all his qualifications acquired Overseas to the defendant. That while he waited for the defendant's reply, he was surprised to receive a dismissal letter from the defendant dated 15th May 2012. That he appealed to the defendant to rescind the decision as it was taken in error and in breach of his fundamental right to fair hearing but the defendant refused to consider it at all. The claimant averred that throughout his years of service with the defendant he has never received any query, caution, warning, suspension or nor any disciplinary action ever taken against him at all; that he has never been notified or informed by the defendant of any allegation or case against him at all; nor ever invited before any disciplinary committee in connection with or concerning the matter of his study leave or any other matter at all. The claimant pleaded that the defendant again issued him another letter dated 11th June 2012 demanding for refund of salary he collected while on study leave with pay. That when he came back to Nigeria, he discovered that although his salaries were no longer paid to him, but that his name was still in the monthly pay roll of the defendant and some staff of the defendant fraudulently collected his monthly salaries. The claimant averred that his dismissal was engineered to cover up all the fraudulent and illegal collection of his salaries by certain persons within the defendant's employ. The claimant pleaded that the defendant’s action to dismiss him from service is actuated by malice as certain officials of the defendant became very envious of his studies overseas. He averred that the defendant's malice became obvious in the year 2006 when the defendant's staff at the headquarters wrote to the Resident Electoral Commissioner, Uyo - Akwa Ibom State that he had absconded from duty which fact of abscondment the defendant alleged to have seen in the handover note of the past Resident Electoral Commissioner of Akwa Ibom State which was denied by the Resident Electoral Commissioner. The claimant testified as the only witness in support of his claims. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross-examination, the claimant told the court that his study leave was for one year and that he could not remember whether he signed a bond or not. He told the court he stayed in Luton for seven years on medical grounds and came back when he was medically fit. The claimant said it was when he was stranded in Luton and had no support that he took up a job. He told the court that he came back with the Masters Degree. The claimant then closed his case. The defendant’s case on the pleadings is that the claimant was given approval to proceed on study leave with pay for only one year and upon the end of the course, the claimant was to produce a Master’s Degree Certificate from the University of Luton United Kingdom in Advance Computing (Computer, Internet Application) and he did not. The defendant averred that the claimant applied for study leave with pay on 3rd September, 2003 and subsequently applied for study leave without pay which was continually granted until 27th March, 2009 when the defendant due to the inability of the claimant to complete the course of study after all those extensions could no longer grant further extension. That the letter refusing a further extension was received on the claimant’s behalf by Justina A. Bassey who is his next of kin. The defendant pleaded that claimants letter of October 16, 2008 was not approved and he was advised to either resign his appointment or immediately report to his duty post without further delay which he refused to do. The defendant averred that in all its dealings with the claimant, it complied with the civil service rules and the defendant’s condition of service as the claimant knows the repercussion of staying away from duty without permission. The defendant averred that the claimant was found to be working with Royal Mail in London by a letter dated 20th September, 2011 written by Dr. Nicholas Dewar. That the decision to dismiss the claimant was not actuated by malice as no official of the defendant became envious and malicious against claimants study overseas; but was done in good faith and in compliance with the public service rules. The defendant called one witness David Edak (DW) Assistant Director, Head of General Procurement in support of its claims. His evidence in chief was by witness deposition which he adopted and was in terms of the pleadings. Under cross-examination, DW told the court that the claimant was a senior staff and was granted study leave with pay but the terms and conditions of the grant was not communicated to him. DW informed the court that the claimant’s study leave was extended from November 2006 to November 2007 and was further extended without pay from November 2007 to September 2008. He told the court that the claimant did not abscond from duty but was abroad on study leave in October 2004. DW told the court that the claimant was not issued with a query or invited to appear before any committee before he was dismissed and that the claimant wrote an appeal after he was dismissed but the defendant did not reply. The defendant then closed its case. The parties were ordered to file their final addresses. The defendant’s final address is dated 2nd July 2014 and filed the same day. The claimant’s final address is dated 5th August 2014 and filed on the 6th August 2014. The defendant’s reply on point of law is dated 29th August 2014 and filed the same day. Learned counsel to the defendant framed the following issue for determination: Whether the reliefs of the claimant contained in the statement of claim are reasonable and meritorious considering the evidence and the pleadings of the claimant in this suit. He submitted that absenteeism from duty is a serious misconduct referring to chapter 3.02 (c) of the defendant's staff condition of service which provides that “any employee who absents himself from duty without authority renders himself liable to dismissal from the service without formality, and the onus shall rest on him to show that the circumstances do not justify the imposition of the full penalty.” It was his submission that the second ambit of chapter 3.02 (c) places a duty on the claimant to show or establish why he should not be dismissed. He further submitted that it is a trite principle of law that whosoever alleges must prove referring to section 135 – 137 of the Evidence Act and that in civil cases, the burden of proof is not static but shifts and it is on the claimant to first prove that he was not entitled to be dismissed summarily in spite the evidence before this court. He cited Kokoro-Owo v. Ogunbambi [1993] 8 NWLR (313) 627, Olufu Soye v. Fakorede [1993] 1 NWLR (Pt. 272) 752 Balogun v. Labira [1988] 3 NWLR, (Pt. 80) 66 Olusesi v. Oyelusi [1986] 3 NWLR (Pt. 31). Counsel submitted that the principle of fair hearing should only be applied having regard to the fact of each case citing Adebayo V. Tsg Nig. Ltd [2011] 4 NWLR (PT. 1238) 493 at 509, JVC Professional Products (U.K) Ltd V. Famuyede & 2 Ors [2011] 4 NWLR (Pt. 1238) 572. He submitted that the doctrine of fair hearing in section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is not a shield for wrongful actions. He argued that from the totality of evidence the defendant acted within the bounds of the law when it dismissed the claimant from it employment for absenting himself from his duty post without leave to do so. Counsel submitted that the law places a duty on the claimant to justify the relief asked for and the claimant has not done this. He argued that there is no justification for the damages to the claimant. He urged the court to discountenance an the reliefs sought as they disclose no cause of action against the defendant and to dismiss the case of the claimant. Learned counsel to the claimant submitted two issues for determination as follows: (i) Whether the claimant whose employment has statutory flavor can be dismissed from the defendant’s service by the defendant via its letter dated 15th May 2012 with Reference No INEC/HQ/AK/C.144/VOL1/89 without due compliance with the 1999 Constitution of the Federal Republic of Nigeria and the provisions of the defendant’s Staff Conditions of Service and Public Service Rules. (ii) If the answer to issue No (i) is in the negative, whether the claimant (having proved his case) is entitled to the reliefs sought in this case. He submitted that the defendant is established by Section 153 (1) (f) of the 1999 Constitution of Nigeria (as amended). That by the combined effect of the provisions of Sections 158(1) and 160 of the 1999 Constitution the defendant’s staff conditions of service have been made which govern and regulate its procedure; and Section 1(a) of Electoral Act 2011 (as amended) re-states the status of the defendant. Counsel submitted that the claimant’s employment is therefore one with statutory flavor and has been admitted by the defendant in its pleadings. He submitted that facts admitted need no further proof referring to See S. 75 of Evidence Act 2011 and citing Chief Idoniboye-Obu v Nigerian National Petroleum Corporation [2003] FWLR (Pt. 146) 959. Learned counsel referred to the defendant’s conditions of service exhibit CW2 particularly clauses 3.02, 3.10, 3.18 and 3.19 and submitted that the defendant did not comply with the mandatory provisions on discipline which provides that in all cases the fault of the employee shall be brought to his notice through the issuance of a query before final disciplinary action; and the employee given an opportunity to submit representations to the Commission. He submitted that the provisions are mandatory provisions that must be strictly observed and adhered to and cannot be waived. He further submitted that where a statute or Rule has created and defined the relationship between the employer and employee, and the method of dismissing the employee upon an alleged misconduct, no such dismissal would be effectual without the employer's strict compliance or adherence with the relevant provisions of the statute or rule citing Gould V. Stuart [1896] AC 575; Adedeji V. Police Service Commission [1967] ANLR 72; Iderima V. Rivers State Civil Service Commission [2005] ALL FWLR (PT. 285) 431 @ 451; FCS Commission V. J. O. Laoye [1989] 1 NWLR (PT. 106) 652 at 683, Dr. Raji V. University Of Ilorin & Ors [2007] ALL FWLR (Pt. 345) 325 @ 337 held 1 and 2. He argued that there was no allegation brought to the notice of the claimant; no committee set up to investigate him; no opportunity ever given to the claimant to make his representation and therefore denied a fair hearing contrary to Section 36(1) of the 1999 Constitution. Counsel submitted that a decision taken in breach of the rules of natural justice is a nullity and liable to be set aside citing Ziideeh V. Rivers State Civil Service Commission [2007] ALL FWLR (PT. 354) 243; 256-257; Adigun V. Attorney-General Of Oyo State [1987] 1 NWLR (PT. 53) 678; Federal Civil Service Commission V. Laoye [1987] 2 NWLR (PT. 106) 652. It was his further submission that the reliance of the defendant on Clause 3.02 of the conditions of service to summarily dismiss the claimant cannot avail the defendant because it is the law that even if there is evidence that there is a cause for summary dismissal the right to fair hearing before dismissal is a constitutional right that cannot be violated by the employer. He cited CBN v Ismalia Jidda [2001] FWLR (PT. 47) 1065, Adowno Adeko V. Ijebu-Ode District Council [1962] 1 ALL NLR 221. He urged the court to hold that the dismissal of the claimant is null and void as it was done in utter breach and disregard of Section 36(1) of 1999 Constitution of the Federal Republic of Nigeria and defendant's Staff Condition of Service. Counsel submitted that in the circumstances, the claimant is entitled to reinstatement his employment being one with statutory flavor. Replying on point of law, counsel to the defendant submitted that it is not in every case that an employee is given the opportunity to defend himself especially when the allegation against such a staff is that of serious misconduct. He urged the court to dismiss the claimant’s case. Now, this judgment was to be delivered on January 12, 2015. It could not be delivered that day as a result of the industrial action embarked upon by Judiciary Staff Union of Nigeria (JUSUN). It is due to this reason, the judgment is being delivered today outside the three months period. I have carefully considered the processes filed, the evidence led, written submissions and authorities cited. In my view the issue for determination is whether on the pleadings and evidence canvassed, the claimant ought to be entitled to the reliefs sought. 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 conditions of appointment are as applicable in the Federal Civil Service and the Independent National Electoral Commission (INEC) Staff Conditions of Service. Paragraph 1.01 of the INEC staff conditions of service states 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 find that the claimants contract of service is governed by the provisions of statute. 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 evidence before the court shows that the defendant by a letter dated the 19th September 2003 approved a study leave with pay for one year with effect from 20th September 2003 for the claimant to pursue a Masters Degree Programme in Advance Computing (Computer and Internet Applications) at the University of Luton, United Kingdom. The letter stipulated that the conditions and terms of the release would be communicated to him in due course. There is no evidence before the court that this was done; neither is there any evidence that the claimant was made to enter into a bond with the defendant before he was released to proceed on study leave. I therefore hold that the claimant did not enter into any bond with the defendant. Consequently, there is no basis for exhibit C11 requesting the claimant to refund the salary paid to him in the course of his study leave with pay and I so hold. The evidence adduced shows that the claimant while on study leave suffered from an infectious lung disease and was receiving treatment. This resulted in his inability to complete his studies within the scheduled period and the defendant granted him two extensions of study leave without pay up to September 2008. He made a further application for extension on October 16, 2008 also on medical grounds. The defendant has adduced evidence showing that it was not approved. The claimant has in his deposition stated that he never received the letter. On the claimant’s return, he was dismissed from service “in accordance with INEC Staff Conditions of Service Section 3.02”. Now the claimant has complained that the provisions of the INEC Staff Conditions of Service were not adhered to by the defendant before he was dismissed: 3.02 SERIOUS MISCONDUCT (c) absence from duty without leave: An employee who absents himself from duty without authority renders himself liable to dismissal from the service without formality, and the onus shall rest on him to show that the circumstances do not justify the imposition of the full penalty. 3. 10 DISCIPLINARY MEASURES (i) In all cases, the fault of the employee shall be brought to his notice through the issuance of a query before final disciplinary action 3.18 DISMISSAL (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 is being dismissed or being considered for dismissal as 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 representations and the recommendations (if any) of the Head of Department/Relevant Committees. 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. There is no evidence that the claimant was issued with a query, informed of the grounds on which he was being considered for dismissal; nor is there any evidence that a committee was set up to investigate any offence allegedly committed by him. There is no evidence that he was given an opportunity to submit representations to the Commission. Section 36 (1) of the 1999 Constitution as amended guarantees the claimant the right to a fair hearing in the determination of his civil rights and obligations. I find that without complying with the mandatory provisions of Articles 3.02, 3.10, 3.18, 3.19 of its staff conditions of service and the provisions of Section 36 (1) of the 1999 Constitution as amended, the defendant proceeded to dismiss the claimant from service. I hold that the defendant breached its staff conditions of service and the provisions of Section 36 (1) of the 1999 Constitution when it denied the claimant his constitutional right to a fair hearing and proceeded to dismiss him from the service. At this juncture, I wish to comment on the following submissions of counsel to the defendant contained in his reply on point of law which is reproduced as follows: it is a desperate situation which demands drastic action. It cannot wait for legal finesse such as fair hearing or natural justice. That can wait! The interest of the defendant's business is of paramount consideration and the appellant or claimant will not be entitled to hearing prior to his dismissal. The principle of fair hearing at this stage is shut out. In such Circumstance, there is a long line of authorities to the effect that the principle of natural justice is kept in abeyance. It is quite surprising that Jacob Akpong Esq will make this kind of submission. It appears to me that he does not have a grasp of the essence of the twin principles of natural justice and has not bothered to properly acquaint himself with the provisions of Section 36 (1) of the 1999 Constitution as amended and case law on the principles of fair hearing which is the bedrock of justice. Now, the defendant is a Federal Government statutory body. It must carry out its activities in line with its governing laws, rules and procedures. The rules regulating discipline and the dismissal of the claimant must be strictly complied with, his employment being one with statutory flavour. Consequently, I hold that the claimant’s dismissal from service by the defendant is null and void and of no effect. He is entitled to automatic reinstatement. He is reinstated into the service immediately with all the rights and privileges he is entitled to as a Grade Level 09 Officer. 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 from the service of the defendant via letter Ref No. INEC/HQ/AK/C.144/VOL.1/89 dated 15th May, 2012 is unlawful, null and void for want of due compliance with Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria; and the Provisions of the Defendant's Staff Conditions of Service and Federal Civil Service Rules. The letter is hereby set aside. 2. The defendant's letter of 11th June 2012 with Reference No. INEC/AK/C.114/93 demanding from the claimant the refund of salary collected while on approved study leave with pay is set aside. 3. The claimant is reinstated into the service immediately with all the attendant rights and privileges of his Salary Grade Level. 4. The defendant is ordered to immediately release and pay the claimant his salary/ allowances and other entitlements due to him from 15th May 2012. 5. 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