Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 19th February, 2015 SUIT NO: NICN/ABJ/137/2013 Between: Mr. Anthony Nwakaegho Claimant And Inspector General of Police and Another Defendants REPRESENTATION Parties absent; K.O Durozo Esq. for the claimant: No Legal representation for the defendants. JUDGMENT By a complaint dated and filed on the 31st May, 2013 the claimant prayed the court for the following reliefs: a. A declaration that the purported dismissal of the claimant was without basis, unsubstantiated, null and void and of no effect, a gross violation of his fundamental Human Right to fair hearing. b. An order that 2nd respondent refusal to hear his appeal up until this moments is a violation of his right of appeal. c. An order of immediate reinstatement and the full payment of all his salaries, increment, allowances and entitlements and promotions from January 2009 till he is reinstated. d. A declaration that the claimant not having been dismissed in accordance with the law is still a legitimate employee of the respondents and therefore entitled to all remunerations, wages and privileges to his office. e. The Sum of N10, 000,000.00 (Ten million naira) only as general damages. In line with the rules of court the claimant filed and serve the originating processes which contained the frontloaded processes on the defendant. Subsequently, several hearing notice were issued and served on the defendant on the 1st of August 2013, the 25th of July 2013, 22nd of October 2013, 22nd of November 2013, 31st of March 2014, 07th of April 2014, and 20th of May 2014. In the absence of the defendant without any good cause shown, the claimant opened his case on the 7th of July 2013 and the case was closed. The defendants who was to opened their cases on the 13th of October 2014 did not attend court despite the issuance and service of hearing notices on them on the 9th of July 2014, and 9th of October 2014. The claimant was then allowed to adopt his final written addresses on the 13th of November 2014 after the defendants’ case was foreclosed. At the hearing of the case, the claimant adopted his witness statement on oath and tendered same as his evidence and was admitted and marked as exhibit 01, letter of query was equally admitted as exhibit 02, reply to query as exhibit 03, dismissal letter as exhibit 04 and appeal against dismissal as exhibit 05. Counsel therefore closed his case; after several adjournments wherein hearing notices were ordered and served on the defendant without success, the claimant addressed the court in their absence; in his written address, dated and filed on the 9th October 2014 the claimant counsel formulated two issues for determination namely: 1. Whether the claimant is entitled to the reliefs sought before this Honourable court. 2. Whether the claimant was right to have waited for the outcome of his appeal before proceeding to court. On issue one; counsel submitted that the uncontradicted and uncontroverted claimants testimony should be regard as proved since it is unchallenged. He contended that the proof on balance of probabilities in this case applies to the claimants civil case as the defendant did not file any statement of defence neither have they called any witness. Counsel urged the court to reinstate the claimant as his employment was statutorily flovoured. Counsel referred the court to the cases of Framo Nig Ltd Vs. Daodu 1993 3 NWLR Pt. 281 372 Ratio I. Daggash Vs. Bulama 2004 14 NWLR Pt. 892 144; Olarewaju Vs. Afribank Plc 2001 FWLR Pt. 72 2008. Counsel submitted that the claimant is entitled to damages for breach of the contract of employment since he was wrongfully dismissed. He therefore urged the court to grant the claimant damages and the payment of his salaries and entitlements. Counsel cited the case of Savannah Bank Vs. Fakokum 2002 I NWLR Pt. 749 at 544. Counsel also urged the court in this instant case to grant the general damages in respect of breach of contract of employment. He cited the case of Ijebu ode Local govt. Vs. Adedeji Balogun & Co Ltd 991 I NWLR Pt. 166 at 136. On issue two, counsel contended that the claimant being a Senior Police Officer is regulated and governed by the provision of the public service rules 2009 and Cap 9 section 2 sub section 090 201 (ii) of the civil service rules 2009. Subsection 090 201 (ii) of the Civil Service Rules, 2009, according to counsel enjoins claimant to exhaust all internal remedies of appeal before proceeding to court to ventilate his grievances. Counsel argued that the claimant was right to have waited for the outcome of the appeal process and when he discovered that it was not forthcoming, he decided to approach the court; He relied on paragraphs 12 and 13 of the statement of facts and exhibit 01 and urged the court to grant the prayers of the claimant as the claim is not caught up with the statute of limitation. He finally urged the court to enter judgment for the claimant. The fact of this case is as follows; The claimant who was of the Rank of an ASP was the district officer of a police station in Edo State of Nigeria; He was accused of conspiring with constable Alaba Macauley who purportedly procured a buyer for ten bags of weeds suspected to be Indian Hemp Kept in the exhibit room of the division. The claimant duly replied to a query issued to him in that respect. He also appeared before the Force Disciplinary Committee wherein DIG Uba Ringim only asked him a singular question of whether he was on suspension and he answered in the affirmative. He was served a letter of dismissal signed by one AIG Zarewa on the 25th of January 2012. The claimant appealed to the Police Service Commission against his dismissal on the 3rd of February 2012 and since there was no reply to the appeal, he decided to approach the court claiming sundry reliefs as earlier stated in this judgment. Civil cases of this nature are determine on the balance of probabilities. The primary duty of this court is to place each of the parties case on an imaginary scale of justice to determine where the scale tilt. This is the case where there is a defence on the other side. However, the fate of every case depends on the pleadings and the evidence led in support as he who alleges must prove. See the case of Esiegbe Vs. Agholor 1993 9 NWLR Pt. 316 at 150. The duty of the court therefore is to assess the evidence before it to see whether or not the claimant has sufficiently discharged the burden of proof in a case. See the case of Leventis motors Ltd Vs. Numieh 1999 13 NWLR Pt. 634 235. The lone question that calls for determination then is whether or not the claimant has proved his case based on balance of probabilities and preponderance of evidence to entitle him to judgment in all the heads of claim. The proposition of law that when evidence is uncontroverted or unchallenged, it must be accepted in proof of the issue in contest only holds good when the unchallenged evidence itself is credible. See Consolidated Resources Ltd Vs. Abofar Ven. Nig Ltd 2007 6 NWLR (Pt. 1030) 221. So also where the evidence of a witness is not inadmissible in law, uncontroverted, a court of law can act on it and accept it as a true version of the case it seek to support. In the same vein, it was decided that wherever any evidence, affidavit, or oral evidence stands uncontradicted, unless the evidence is patently incredible, the court ought to regard the matter to be proved by that evidence as admitted by the adversed party. See also the case of Triri Vs. Erhurhobara 1991 2 NWLR (Pt. 173) 252 of 255. It is also the law that the failure of the defendant to appear or file their defence, is deemed to mean he admitted all the affirmations of the facts before the court. This is so because, the defendant offers no evidence and as such the evidence before the court flows only one side of the proverbial imaginary scale. The onus of proof in such a case is discharged on minimal proof. See the case of Broadline Ent. Ltd Vs. Monoterey Corp 1995 9 NWLR (Pt. 417) 11. Where the defendant fails to defend a suit as in this case, or fail to call any witness, the claimant is not relieved of his responsibilities to prove his case. See Yahaya Vs. Munchika Chika 2000 7 NWLR P. 301. The claimant has canvassed that he was not given fair hearing. In as much as there is no evidence on the side of the defence to contradict him, his evidence itself must be credible; By paragraphs 5, 6, 9, and 10 of the witness statement on oath which was adopted by the court, the claimant testified that he was given a query exhibit 02, he replied exhibit 03, and he appeared before the disciplinary Committee called the Force Disciplinary Committee. Fair hearing is opportunity to be heard. It means, hear the other side. See Imonikhe Vs. Unity Bank Plc 2011 12 NWLR (Pt. 1262) 624 at 640 where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirements of fair hearing because he answers the defendants queries before he was dismissed from his employment. Paragraph 2 of the letter of dismissal. Exhibit 04 says: “The police service commission has carefully considered your representation to the query and found that you have not exculpated yourself from the issues on which you were queried. It has therefore conveyed its decision vide a letter NO/PSC/C/48/VOL. V/1010 of 21st Dec. 2010 that you be dismissed. Be informed therefore that you have been dismissed by the Police Service Commission from the services of the Nigeria police force with effect from 20th December 2010”. In the instant case, the claimant was queried. He answered the query and a decision was taken and so he appealed against it as in exhibit 05. I have no hesitation whatsoever in finding and holding that the requirement of fair hearing has been met in this case. The claimant counsel has submitted that the claimant is not caught up by the limitation law of 3 months as provided by law because he was exhausting all answers provided through appeal before proceeding to court of law; it is on record that the claimant was dismissed on the 20th of December 2010 but he received the letter on the 15th of January 2012. He appealed on the 3rd of February 2012 while this suit was instituted on the 31st of May 2013. The claimant did not place before the court or cite any rule or regulation of the police force that says that you must wait indefinitely or wait for 16 months after an appeal before you approach the court to ventilate your grievances. In this case, the claimant had waited 17 months from the date of receipt of his dismissal letter exhibit 04 before approaching this court in this suit. The question, from the available facts and applicable law is given the state of pleadings of the claimant, is this suit caught up by the public officers Protection Act? By section 2 (a) of the Public Officers Protection Act (POPA) Laws of the Federation of Nigeria 2004, a suit against a public officer must be brought within three months after the ceasing of the injury Complained of; For this section to apply to any case, two conditions must be satisfied. (1) The defendant must be public officers or a person acting in the execution of public duties within the meaning of the law; (2) The act done must be in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of such law, duty or authority. See Ekeogu Vs. Aliri 1990 NWLR (Pt. 126) 345. The question to be further determined is whether the defendants in this suit i.e the Police Service Commission, the IGP are public officers or public officers performing public duties? The 1999 constitution of the Federal Republic of Nigeria (FRN) as amended has at section 318 defined public service of the Federation and public service of the state. In the 5th schedule part I paragraph 19; Public Officer is defined as a person holding any office as specified in part II of that schedule. A careful look at this fifth schedule part II of the 1999 constitution shows that the 1st and 2nd defendants in this suit are specifically mentioned. Consequently I hold that the defendants are Public Officers within the ambit of the term Public Officers as contemplated under the Public Officers Protection Act (POPA). The claimant was dismissed through a letter which he received on the 25th of January 2012. He appealed on the 3rd of February 2012. He instituted this suit on 31st May 2013. The time begins to run when all facts have happened which are material to proved the claimants case to entitled him to succeed. In this wise, time begins to run when the claimant was given the letter of dismissal on the 25th of January 2012, or when he had written an appeal against the dismissal on the 3rd February 2012 and there was no reply. I hold that the date of accrual of the cause of action marks the commencement of computation of time for the purposes of determining the 3 months limitation period. See the case of Unilorin Vs. Adeniran 2007 NWLR Pt. 1031 at 498; Odutola Vs. Unilorin 2005 All FWLR (Pt. 245) at 592. The claim in this suit shows clearly that the termination was done as part of the official function of the defendant. This has remove the claimant rights completely as this suit is statute barred. See the cases of A.G. Rivers State Vs. AG. Bayelsa State 2013 3 NWLR Pt. 1340 123 at 148; Sulgrave Holdings Incorp. Vs. FGN 2012 NWLR (Pt 1329) 309. In the light of all the reasoning and conclusion in this judgment, the two issues formulated for determination are resolved in the negative. Consequently the entire prayers in the reliefs of the claimant fails and are hereby dismissed. Judgment is entered accordingly. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge