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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 15th December, 2014 SUIT NO: NICN/ABJ/289/2013 Between: Ashaya Saraya Ibrahim Claimant AND Consumer Protection Council and Others Defendants REPRESENTATION Claimant present. Defendant absent; S.S Mishellia for the claimant; Babatunde Alajogun Esq. for the defendant. JUDGMENT By a complaint dated and filed on the 23rd October 2012, the claimant endorsed his complaint as follows: A Declaration that the purported letter of termination of her employment is null, void and of no effect. II. A declaration that the Complainants letter of resignation dated the 7th Day of February, 2012 is valid. iii. An order directing the Defendants to validate the letter of resignation dated 7th Day of February, 2012. iv. An order directing the Defendants to immediately pay the Complainant her salary and pay all arrears from February, 2011 until the Complainant resigned. v, An order directing the Defendants to pay the Complainant all her entitlement pursuant to her resignation on the 7th Day of February, 2012. vi. Cost of this suit assessed at N350, 000.00 . The claimant accompanied his complaint with the frontloaded processes in accordance with the rules of court. The 1st and 2nd defendant filed their regularized processes with their frontloaded processes after complying with the rules of court. The third defendant name was earlier struck out of the suit on the 18th of March 2013 by my learned brother Sogbola .J. before this suit was transferred to this court by the Honourable president; (1) The claimant opened his case with the testimony of the claimant who adopted his witness statement on oath and it was tendered and marked as exhibit ASI 01 (2) Provisional appointment letter exhibit ASI 02. (3) Regularization of appointment letter is exhibit ASI 03. (4) Promotion to the post of Assistant Director account Exhibit As1 04 (5) Confirmation of appointment is exhibit ASI 05. (6) Redeployment / posting letter is exhibit ASI 06 (7) Resignation letter is exhibit ASI 07 (8) Re: letter of resignation is Exhibit ASI 08 (9) Response to Resignation letter is exhibit ASI 09. (10) Solicitors letter to defendant is exhibit ASI 10. During cross examination, the claimant said he was conversant with the public service Rules. She stated that she got her letter of 1st appointment on the 25th of May 2005 and she had worked with the 1st defendant for about 6 years she resumed duty with the first defendant on the 1st of June 2005 as the 1st defendant has no zonal office across Nigeria. The defendant she stated has only 3 functional offices and the zonal offices she stated are headed by zonal coordinators she asserted that posting is done on the basis of need and not arbitrarily as she was posted to head the north central zone and she was not the only person posted out of the national office of the defendant as only two of them were posted out. She agreed to have been issued a query of which she replied and she was not invited to face any disciplinary Committee as she did not face any disciplinary panel. She testified that after 6 month of her posting, she reported to the board of the 1st defendant but she never reported to the north central zone for duty. Witness testified that she was never terminated as she resigned her appointment and she did not bring this suit after one year of her termination and up till the time of giving her testimony she had never seen the purported letter of termination as exhibit AS1 09 is her letter of resignation which she wrote. Witness stated that her appointment was not terminated on Monday 15th August 2011 as stated in Exhibit 08. The witness said she did not bring the case on 23/01/2012. The claimant then closed his case while the defendant opened his case on the 11th June 2014 and adopted his witness statement on oath and was admitted as exhibit ASI 011. The following frontloaded documents are also tendered by the defence as exhibits (1) 1st defendant internal memo on redeployment /posting is exhibit ASI 012. (2) Another letter of redeployment is Exhibit ASI 013. (3) Letter on refusal of transfer exhibit ASI 014. (4) Another letter on refusal of transfer is exhibit ASI 015 (5) Another letter on refusal of transfer is exhibit ASI 016. (6) Forwarding disciplinary documents is exhibit ASI 017 (7) Report of independent panel exhibit ASI 018 In cross examination, the defence witness enumerated the misconduct of the claimant as follows (1) Refusal to report at place of posting (2) Refusal to reply to query (3) Absenting from duty The witness stated further that her mails on posting were all sent to the new posting according to the public service rules which talks about last known place of address. Witness stated that the claimant did not get her posting letter because she did not report at her new posting place as stated in the public service rule. The witness claim to know one peace Agu who have been a secretary to about 5 directors but never worked as secretary to Director General. The witness who was not aware that the reply to query of the document was received by Peace Agu stated that she refused to honour her posting as stated in exhibit 016. The witness stated that the claimant was on level 15 being an assistant Director. The witness stated the process and stages of discipline carried out in this case as follows: (1) Issuance of query (2) Senior staff committee (3) Independent disciplinary Committee In the case of parastatal the senior staff committee is headed by the D.G. and in the case of ministry it is headed by the permanent secretary. In this case, the witness continued recommendations were made and the committee was lenient to the claimant where four options were given and the claimant did not utilize anyone of them. He testified also that exhibit 017 is the covering note of the deliberations and the said deliberations are in the file which he did not bring to court. The defendant therefore closed its case. In the final address filed by the defence the defendant raised two issues for determination. (1) Whether the action commenced against the defendant is statute barred taking into consideration the date the cause of action arose when the action was commenced and the fact that the defendant are public officers in law. (2) Whether the claimant is entitled to any claim, order or declaration against the defendant taking into consideration case in relation to the provisions of the public service rules. On issue one, counsel posited that this suit is statute barred by virtue of section 2 (a) of the public officers protection Act LFN 2004 in that (1) The action was brought on the 23rd October 2012 while the claimant was terminated on the 15th August 2011 i.e 14 months interval. (2) Paragraphs 17 of the defence statement and paragraph 19 of defendant witness statement on oath refers to the pleaded facts. (3) These pleaded facts are not denied or replied to by the claimant (4) Counsel referred the court to exhibits 8 and 9 and submitted that even if the claimant received the letter of termination on 16th July 2012 he is still outside the 3 months time limit. Counsel referred the court to the cases of Daudu Vs. Unam 2002 17 NWLR Pt 796 362; Obiefuna Vs. Okoye 1961 ANLR 1961 SC NLR 144 and urged the court to hold that public officers protection act applies to contract of service and as such the claimant has lost the right of relief, enforcement, judicial relieve and cause of action as held in the cased of Egbe Vs. Adefarasin 1987 I NWLR Pt. 47 page I. Counsel further contended that issue of jurisdiction being fundamental should be settled first as this case which is statute barred has robbed the court of jurisdiction. Counsel call in aid the case of Madukolu Vs. Nkemdilum 1962 2 SC NLR 341 1962 I ANLR 581 at 595. Counsel contended further that when the time limit have been exceeded before the suit is instituted by a party, the suit is unmaintainable as the operation of limitation law is construed strictly. Counsel cited the case of Obembe Vs. Wema bod Estate Ltd 1977 5 SC 155; NEPA Vs. Olagunju 2005 3 NWLR Pt 913 602 at 627. Counsel urged the court to hold that the claimant having failed to fulfill condition precedent to the institution of this suit, the action is incompetent as the court lacks jurisdiction to entertain this suit; counsel urged the court to dismiss this suit; On issue two, counsel submitted that the claimant admitted refusing transfer to head the north central zone of the 1st defendant thereby violating the public service rule. She also according to counsel refused to resume at the area /office posted and said that posting is based on needs as she was not the only one posted but other 31 staffs were affected. Counsel referred the court to exhibit 012. Counsel referred further to exhibit 018 which shows that the claimant attended the disciplinary panel and such evidence elicit during cross examination remain unchallenged and the court cannot reject it. Counsel cited the case of Akusobi Vs. Obinechie 2004 2 NWLR Pt. 857 at 355. Counsel recalled how the claimant admitted receiving a query for failure to report at her duty post which is contrary to the Public Service Rules. The query is exhibit 014 which counsel said was received by the claimant was an opportunity of fair hearing. The counsel referred the court to exhibits 11, 12, 13, 14 15, 16, 17and 18 tendered by the defendant as oral evidence cannot subtract or add to the documentary content. Counsel cited Ojoh Vs. Kamalu 2006 AFWLR Pt. 297 at 978. Counsel submitted further that the hands of the claimant was not clean and equity therefore should not work in her favour as she has breached the public service rule, was given fair hearing and was properly terminated after her case was properly investigated. Counsel Contended that the claimant did not cross examine or deny the facts as contained in exhibits 12 to exhibit 18 and as such the court should regard these facts contain therein as unchallenged and uncontradited. Counsel cited the case of Daggash Vs. Bulama 2004 14 NWLR (Pt. 89 2 ) 144. Counsel drew the attention of the court to paragraph 3 and 4 of exhibit 02 and public service rules 030301 on the meaning of misconduct and urged the court to hold that the claimant was properly terminated as the claimant did not sign any agreement with the defendant to spend all her time at the 1st defendants headquarters as a staff. Counsel urged the court to consider all the facts relating to the issuance of query, the setting up of the senior staff committee, the disciplinary panel and the options given to the claimant which she refused to utilize. This, counsel said amounts to fair hearing. Counsel also cited the case of Macfoy Vs. UAC 1961 3 WLR AC 1405 and Ngige Vs. Obi 2006 All FWLR Pt. 330 1041 at 87 to buttress the fact that the claimant has no cause of action as her case has no basis or foundation to stand. Mr. Alajogun further contended that the letter of resignation dated 7th February 2012 came after the claimants employment was terminated on August 15 2011. Counsel also contended that the 2nd defendant who was the former DG of the 1st defendant is not a necessary party as she never carried out anything personal on the matter. Counsel finally urged the court to dismiss the claimants case. In His response, the claimant counsel S.S Mshellia Esq. formulated four issues for determination namely: (1) Whether the defendants letter of termination take precedence over an earlier letter of resignation by the claimant (2) Whether the 2nd defendant can validly terminate the claimants employment by virtue of the public service rules (3) Whether the claimant was given fair hearing (4) Whether the public officers protection Act is applied in this case. On issue one, counsel submitted that the evidence in this case reveal that the claimant resigned by submitting a letter to that effect on the 7th of February 2012 while she received a letter of termination dated 18th April 2012. Counsel submitted further that the said letter reveal to the defendant the address of the claimant based on the letter of resignation of 7th February 2012. Counsel contended that by paragraphs 13, 14 and 15 of the statement of facts and exhibits 7,8 and 9 shows that resignation as contained in a letter dated 7th February 2012 was submitted before the letter conveying the purported termination (Exhibit 08) was given to the claimant in June 2012. On issue two, counsel submitted that the board of the 1st defendant was not the one that purportedly terminated the claimant contrary to the public service rules particularly rules 1605 01 and 160502. Counsel contended also that the guideline for appointment, promotion and discipline of the public service were not followed particularly part V. The claimant he argued was sacked through the backdoor. On issue three counsel contended that the claimant was not given fair hearing in the matter leading to her dismissal. Counsel submitted that all the documents, mails, correspondences meant for the claimant including the query, the invitation to disciplinary committee were all sent to the North central office when they know very well that the claimant was not there. Moreover, the evidence of the DWI, counsel submitted is full of half truth as the content of the disciplinary report, the member of the disciplinary committee and so on were not made known or produce before the court to do justice. Counsel urged the court to invoke section 167 (d) of the 2011 evidence Act against them as such evidence if produced will be unfavourable to them. Counsel referred the court to the case of lwok Vs. Unioyo 2011 6 NWLR Pt. 1243 at 211. On issue four, Mshellia Esq. submitted that time will begin to run 2012 when the claimant became aware of her purported termination when she briefed her solicitors to intervene and this suit was subsequently filed on the 23rd October, 2012 which is within three months. Counsel refer to FRIN Vs. Gold 2007 11 NWLR Pt. 1044 . Counsel further submitted that the 2nd defendant who purportedly terminated the claimant was not the board as envisaged by the public service Rule 2009. Moreover, the 2nd defendant acted outside the scope of her duties and as such cannot be protected under the public officers protection Act LFN 2004. In reply on point of law, Mr. Atajogun submitted that it was the board that terminated the claimants after due process was followed and after rules 160501 was complied with. Counsel contended also that the 2nd defendant by virtue of the 1999 constitution and the interpretation Act Cap 128 LFN 2004 Section 18(I) was a public officer. Counsel repeated his earlier argument to the effect that the 2nd defendant was not a necessary party having been misjoined as this suit can be fairly, effectively and effectually determine in her absence. He cited the case of Nabaruma Vs. Offodile 2004 13 NWLR P. 891 at 599 Kalu Vs. Uzor 2004 12 NWLR Pt. 886 at I. Counsel urge the court to dismiss the case in its entirety. I have read the processes, arguments and entire submissions of counsel in this matter. The facts of this case is that the claimant who was an assistant director accounts in the defendants organization was relieved of her appointment through a letter dated the 15th of August 2011 to take effect from the 11th of March 2011 on the ground that she refused to proceed on transfer, she absented herself from duty without leave and insubordination. The claimants position was that the letter of termination did not get to her since she did no resume at her new posting as she said letter was addressed to her new station; before she got this letter containing this information on her termination, she had already resigned her appointment on the 7th of February, 2012. It is also the fact that two letters containing queries dated the 18th of February 2011 and 4th of March 2011 were issued and served on the claimant but she did no reply. However, she honoured the invitation to appear before the senior staff/ management disciplinary committee or panel on the 22nd of June 2011. The claimant has now brought this suit containing her claims wherein she has argued that she refused to honour the posting directive because she was being victimized as a result of her intolerance for corruption. The defendants have predicated their defence on the fact that the case for the claimant is statute barred coupled, with the fact that she was terminated in accordance with the public service rules having complied with the principles of fair hearing. It is trite law that civil cases are determine on the balance of probabilities. It is the primary duty of this court to place each of the parties case on an imaginary scale of justice to determine where the scale tilt more. It is also the law that he who asserts must prove in other to discharge the burden of proof placed on him. The fate of every case then depends on the pleadings and the evidence in support. See the cases of Esiegbe Vs. Agholor 1993 9 NWLR Pt. 316 at 150. Ede Vs. okafor 1990 2 NWLR Pt. 150 356 SC I. The duty of this court therefore is to assess the evidence before him to see whether or not the claimant has discharged the burden of proof in a case before him upon the preponderance of evidence. See the cases of FBN PLC Vs. Onukwugha 2005 16 NWLR Pt. 950 120 at 153 Onwuka Vs. Oniogui 1992 2 NWLR Pt. 230 393 at 424. The lone question that calls for determination on this case is whether the claimant has sufficiently proved her case to entitle her to judgment on all the reliefs sought therein on the issue of whether or not this suit is statute barred; the provision of the public officers protection Act Cap P 4, LFN 2004 Section 2 (a) says; that any proceedings or prosecution of a suit against a public officer must be brought within 3 months from the date of accrual of right of action; the claimant who was terminated on the 15th of August 2011 in a letter did not get to know of the letter in question until on the 16th of July 2012 when she replied to that letter. Assuming she became aware of her termination on the 16th of July, 2012 when she sent in a reply, it will be taken that her right to institute her action will accrue from the 16th of July 2012. This suit, from the writ before the court was instituted on the 24th of October 2012. All things being equal, the right to judicial relief, judicial enforcement and ventilation of grievances become extinguish an empty shell after the 16th of October 2012. See the case of Sulgrave Holdings Vs. FGN ………. But before the public officers protection Act can apply it must be certain that the defendants are public officers within the meaning of the law. See the cases of Udo Vs. Civil Service Commission Akwa Ibom State 2006 LPELR 11564, Ekeogu Vs. Atiri 1990 NWLR Pt. 126 345. Ibrahim Vs. Judicial Service Commission of Kaduna State………………… public officers within the context of the Public Officer Protection Act (POPA) LFN Cap P 41 2004 incorporates and accommodates persons sued in their personal names who are natural persons. It also includes artificial persons such as public bodies, body of persons, corporate incorporate and statutory bodies; The 1999 constitution of the Federal Republic of Nigeria (as altered) has at section 318 defines public service of the Federation and Public Service of the state in paragraph C. under public service of the federation, Members of staff of any commission or authority established for the Federation by the constitution or by an act of the National Assembly are public officers; the 2nd defendant was the director general of the first defendant. She was sued in her personal name but was then acting in her official capacity. Base on the interpretation section of the 1999 constitution as shown in section 318 thereof, I hold irrestibly that the defendants in this suit are public servant /officers within the meaning of section 2 (a) of the Public Officer Protection Act (POPA) LFN CAP P41 2004. The claimant having instituted this suit after the expiration of 3 months from the date of accrual of right of action, this suit is statute barred. Assuming without conceding that I am wrong, a thorough look at all the exhibits tendered in this case reveals that the claimant who was an employee of the defendant was subject to the disciplinary control of the defendants as provided by the public service Rules. The allegations as can be glean from her exhibits and testimony is that (1) She refused to accept official posting (2) She stayed away from official duty without official permission consequent upon (1) above (3) She was being accused of insubordination upon her failure to carry out official instruction Exhibit ASI 018 reveals that the claimant appeared before the disciplinary panel and was given full opportunity to present and defend her case on the 22nd of June 2011. The claimants failure to obey the instruction given to her was summarized in her answer at the panel sitting as follows: “I have found out that I did not do the right thing by not reporting and instead writing a petition. After your explanation, I have seen where I have gone wrong. You may call it inexperience” A cursory look at the recommendation of the panel shows a soft landing and a very soft spot for the claimant who refused to take advantage of that window of opportunity. The law is that a person likely to be affected directly by the disciplinary proceedings must be given adequate notice and opportunity to present his defence. See the case of Arinze Vs. F.B.N Ltd 2004 12 NWLR Pt. 888 663 SC; ATA Poly Vs. Maina 2005 10, NWLR Pt. 934 487; In my considered view the claimants have been afforded all the opportunity to be heard and she had been heard accordingly. In the case of LCRI Vs. Mohammed 2005 11 NWLR Pt. 935 I at 25 paragraph C-E, the court held that any conduct or misconduct of an employee which is prejudicial to the discipline and proper administration of an institution or body is sufficient for the removal of the employee from his employment either by Summary dismissal or retirement on compassionate ground. From the available evidence in this case, it can be seen that the conduct of the claimant in refusing to proceed to a new posting to head the north central zone of the defendants organisation is incompatible with the business interest of the employer. It was held in the case of Udegubunam Vs. FCDA….. That the absence of an employee without valid excise from duty is an act of indiscipline or disobedience of lawful order. This act also amounts to insubordination and could earn him/her a dismissal. The conduct so far exhibited by the claimants amounts to insubordination. A claimant who is guilty of disobedience to lawfull order of transfer is thus guilty of insubordination. See Sule Vs. Nigerian Cotton Board 1985 2 NWLR Pt. 5 17 at 24; Unical Vs. Essien 1996 10 NWLR Pt. 477) 225. The issue of spite or ill will raised by the claimant as a reason for her transfer cannot hold water because she was not the only one affected by the transfer as it included 31 staff of the 1st defendant. What is expected of the claimant in a circumstance of perceived vindictive transfer was to first of all obey the posting instructions and then protest in writing which can be treated under employee with family responsibility and if she is not considered accordingly, it can be classified under unfair labour practice under section 254 ( c) (1) (f) On the whole, I am satisfied from the evidence before me that the conduct and misconduct of the claimants contravenes Rules 030301 (b) (m) and (o) of the Public Service Rules. From all what I have said in this judgment so far including my reasoning and conclusions, I hold that the claims as constituted in this suit fails and is accordingly dismissed. I make no order as to cost. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge