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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 11th March, 2015 Suit No. NICN/ABJ/183/2012 BETWEEN BABATUNDE W. ALMAROOF CLAIMANT AND 1. PETROLEUM EQUA LIZATION (MANAGEMENT) BOARD DEFENDANTS 2. HON. MINISTER OF PETROLEUM RESOURCES REPRESENTATION Fustus Akpohalimo Esq for the Claimant. Luter Ataghar Esq for the 1st Defendant. F. A. Agama Esq for the 2nd Defendant. JUDGMENT By amended complaint dated and filed on 12th October, 2012, the claimant claims against defendants as the follows:- i. A Declaration that the Plaintiff was not an employee of the Ministry of Petroleum Resources on 8th of December, 2006 when he was purportedly dismissed from the service of the 1st defendant by the 2nd defendant. ii. A Declaration that the letter from Ministry of Petroleum Resources, reference No. MPPS/S.I/21 and dated 8th December, 2006, dismissing the Plaintiff from the service of the 1st defendant is illegal null, void and of no effect whatsoever. iii. A Declaration that the letter from Ministry of Petroleum Resources reference No. MPS/2138/S.18/1, dated 26th August, 2009, upholding Plaintiff’s dismissal from the service of 1st defendant is null and void and of no effect whatsoever, being issued in violation of Rules 04302 to 04306 of Federal Government Public Service Rules and the Constitution of the Federal Republic of Nigeria. iv. An Order that Plaintiff be re-instated to his position as manager, Petroleum Equalization (Management) Fund immediately without loss of promotions, increment of salaries and allowances. v. An Order that the Plaintiff’s salaries and allowances be paid using the current scale applicable to his position in the office of the 1st defendant from 8th December, 2006 that is the date of his dismissal till the date of his final reinstatement. Accompanying the amended statement of claims are the claimant’s statement of claim, witness statement on Oath, list of documents to be relied upon at the trial and list of witnesses. The matter was defended by the 1st defendant while the 2nd defendant only relied on the evidence, and final submission of the 1st defendant. After the conclusion of trial on the 30th of September, 2014, parties having filed and exchange their final addresses, adopted same. The 1st defendant formulated 3 issues for the determination of the court to wit:- 1. Whether the claimant’s employment with the 1st defendant was governed by the Public Service Rules. 2. Whether the claimant’s employment with the 1st defendant was one with flavour. 3. Whether the claimant has made out this case on credible evidence to be entitled to the reliefs sought in this suit. The learned counsel for the 1st defendant argued the 1st & 2nd issues together. In arguing the issues the 1st defendant counsel submitted to the effect that the employment with statutory flavour cannot be a matter for inference or conjunctive but a matter of hard evidence stating that the principle of law was highlighted in the case of Ujam V I. M. T. (2007) 2 NWLR (Pt. 1019) 470 at 490 Paras E – G and the case of Idoniboye Obu V NNPC (2003) 2 NWLR (Pt. 805) 589 at 631 where the Supreme Court held as follows:- Before an employment can have statutory flavour, the statute must expressly make it so. Otherwise, the employment will have to be treated on the basis of the common law principle of master and servant. 1. That for an employment to have statutory flavour the employer must be a body set up by the statute and 2. The Establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. The learned counsel to the defendants went further to submit that the 1st defendant is a creation of the Petroleum Equalization, Fund Management Board Act CAP P11, LFN 2004. That the Act does not make provisions regulating the claimant or any other category especially in matters of discipline and that the Act does not delegate any statutory power to any person to make regulations or draw up conditions governing such employments. The 1st defendant submitted that the claimant has averred that his employment with the 1st defendant was governed by the Public Service Rules and that he seeks the declaration that his letter of dismissal is null and void and of no effect whatsoever being issue in violation of Rules 04302 - 04306 of Public Service Rules. That the effect in law is that the claimant’s employment with the defendant is one with statutory flavour. The 1st defendant, however, contended that the law is clear that a contract of employment with an organization that is a creation of statute such as the 1st defendant does not automatically cloth such employment with the statutory flavour. Relying on the case of Idoniboye Obu V NNPC (Supra). That while the Public Service Rules undoubtedly clothes any employment with statutory flavour, it is clear that position of the law that employer is a creature of statute does not automatically vest its contracts of employment with statutory flavour. To the 1st defendant, the claimant has not led any evidence to show that his employment is governed by the Public Service Rules. That the claimant letter of employment (Exhibit PWA1) tendered did not state that his employment is to be governed by the Public Service Rules. The 1st defendant contended further that for an employment to be subjected to Public Service Rules and having statutory flavour, the person claiming that must show by his employment letter that he was employed by the Federal Civil Service Commission, in accordance with the provisions of Public Service Rules or that his letter of employment clearly spelt out what his employment shall be governed by the Public Service Rules. On this submission the 1st defendant relied on the case of Okomu Oil Palm Co Ltd V Iserhienrhien (2001) 6 NWLR (Pt. 710) 660 at 676 Para H – 677, Para H where the Supreme Court settled the issue as follows:- In order to be able to reach any conclusion that the said Rule 04102 applies to the claimant, it must be shown, in my view that he was a Public Officer employed by, or with the authority of, the Federal Civil Service Commission. …… That would suggest strongly that on the face of it and by logical thinking that the respondent was employed by the Federal Civil Service Commission and that his employment can only therefore be brought to an end under the authority or by direct act, of the Federal Civil Service Commission. The 1st defendant argued further that the claimant herein failed to lead any evidence to show that he was employed in accordance with the Public Service Rules, as he never tendered the Public Service Rules. To the 1st defendant the employment of the claimant was clearly a master and servant relationship without any statutory flavour. In that the claimant’s letter of employment (Exhibit PWA) clearly provides that his entitlements and obligation in relation to his employment with the 1st defendant are as contained in the “Board’s Conditions of Service”. That the claimant employment was governed by the conditions of service of the 1st defendant which the defendant said are not before the court as they were not tendered by the claimant. The 1st defendant then further argued that the 1st defendant is not bound to comply with provisions of the Public Service Rules giving by the content of Exhibit (PWA) the letter of offer of appointment, and for this the case of the claimant is domed to fail. The 1st defendant concluded that the claimant’s employment was not governed by the Public Service Rules and is without statutory flavour, and urged the court to resolve the 1st & 2nd issues in flavour of the 1st defendant. In respect of the 3rd issue the 1st defendant submitted the claimant is seeking for reinstatement, which he argued he is not entitled to because the claimant has failed to prove his entitlement to same. On this issue the 1st defendant submitted that flowing from the argument on issues 1 & 2 above the claimant is not entitled to reinstatement, considering the fact that the claimant employment with the 1st defendant is purely a master and servant relationship at common law. That reinstatement can only be available as a remedy for contracts with statutory flavour or where there is an express terms on the contract to that effect. Relying on the case of Osisanya V Afribank (Nig) Plc (2007) 6 NWLR (1031) 565. The 1st defendant submitted that with particular reference to the claimant’s relief that his dismissal by the 2nd defendant is void because he was never an employee of the Ministry of Petroleum. But that the 2nd defendant is dully empowered by the provisions of the 1999 Constitution (as amended) to exercise the statutory powers of the Board of Directors of the 1st defendant including dismissal of the claimant. That the 1st defendant is a creature of Petroleum Equalization Fund Management Board Act and Section 4(3) of the Act makes provision for employment of officers for the operating of the 1st defendant and not the power to appoint for it employees, and that a statutory power to appoint employees necessarily includes the power to remove or terminate the appointment of such employees, referring to Section 11 of interpretation Act CAP 123, LFN 2004. The 1st defendant further submitted that the statutory function of the 1st defendant in Section 4(3) is one which the President of the Federal Republic of Nigeria acting through his ministers can exercise referring to Section 5 (a) of the 1999 Constitution (as amended). That the Court of Appeal had applied to the provisions of the Section to the case of Pius A. HUL V Corporate Affairs Commission & 4 Ors:- I make bold to say that the President of the Federation has the prerogative to choose who shall discharge the executive power for as long as he is operating within the confines of Section 5(a) of the Constitution. He has appointed the 3rd Respondent to discharge the duties of the Corporate Affairs Commission. The President has not acted ultra vires the powers conferred on him by the Constitution. The 3rd Respondent has the Corporate Affairs Commission being an appointee of the President under Section 5 of the Constitution. He stands in the place of the Board and can validly issue the letters of proceeding on compulsory leave and termination of appointment to the appellants. Stating that the 3rd defendant in the above case was the Minister of Commerce, while the 2nd defendant in this case is the Minister of Petroleum submitting that the 2nd defendant as Minister of Petroleum under the directive and pursuant to Section 5 (a) of the 1999 Constitution (as amended) can validly issue letters of termination or dismissal from the services of the 1st defendant. That flowing from above the claimant’s letter of dismissal admitted as Exhibit PWE signed on behalf of Hon. Minister of State for Petroleum clearly conveyed to the claimant “the approval of the President and Commander in chief of the Armed Forces Chief Olusegun Obasanjo of your dismissal from the service of the Petroleum Equalization (Management Fund). The 1st defendant submitted further that the 2nd defendant is clearly the supervising Minister of the 1st defendant by virtue of Petroleum Equalization Fund (Management Board Act) CAP 11, LFN 2004. That the 1st defendant’s Board is chaired by a representative of the Ministry of Petroleum pursuant to the provisions of Section 1 of the Act. In that with the 2nd defendant is in a position to dismiss the claimant as directed by the President or in the absence of a Board for the 1st defendant. The 1st defendant argued further that the issue of who has the power to terminate the claimant contract of employment is to be determined by the conditions of service governing the contract of employment between the claimant and the 1st defendant. The 1st defendant contended that the claimant failed to tender the conditions of service governing his employment with the 1st defendant which to the 1st defendant is fatal to his claim relying in the case of Nitel Plc V Akwa (2006) 2 NWLR (Pt. 964) 391 at 414 Paras C – E where it was held that in an action for wrongful termination of employment or dismissal, the employee as claimant must prove his case by:- a. Placing before the court the terms and conditions of the contract of employment; and b. Providing in what manner the said terms were breached by the employer. But that the Exhibit PWA letter of appointment clearly states that contract of service with the 1st defendant is governed by the 1st defendant conditions of service. To the 1st defendant the claimant has failed to prove that his case is founded on Public Service Rules. He has failed to discharge the burden placed upon him to prove the essential facts to entitle him to the relief sought for wrongful dismissal. The 1st defendant urged the court to so hold. That the letter of dismissal issued by the 2nd defendant was valid in view of the fact that it was done in the exercise of a directive of the President of Federal Republic of Nigeria. On his part the claimant’s counsel formulated 4 issues for the determination of the court:- 1. Whether the 2nd defendant who was not the claimant’s employer per Exhibit PWA can validly dismiss the claimant. 2. Whether the defendants having elected or chosen to applying the Public Service Rules are not expected to comply with the procedure of same relating to disciplinary action before dismissing the claimant. 3. Whether the defendants are not exempted from complying with the rule of natural justice and fair hearing as a guaranteed by the constitution. 4. Whether the claimant’s is entitled to the reliefs sought in this case. In dealing with these issues formulated above, the learned counsel for the claimant argued issues. 1,3, & 4 together. Submitting that the case of the claimant according to the statement of claim can be placed on 3 broad heads:- 1. The claimant was employed by the 1st defendant as his staff and the 2nd defendant was not his employer but dismissed him. 2. The claimant was not given fair hearing as recognized by the Constitution of the Federal Republic of Nigeria 1999 (as amended). 3. If that be the case whether this Honourable Court can quash or reverse the dismissal. In respect of the above submissions, the claimant counsel argued that by the nature of this case the law enjoins him to prove that:- a. He is an employee of the 1st defendant. b. Placed before the court the terms and conditions of the employment. c. Who can appoint and who can remove him. d. In what circumstances his applicant can be determined. Claimant referred the court to the case of Imasuen V University of Benin (2010) 3 NWLR (Pt. 1182) Pg. 591 R 1. The claimant counsel commenced stating that he was employed by a letter of employment dated 24th February, 1997 by the 1st defendant that the said letter of employment states that the fringe benefits attached to the employment are laid down by “our staff condition of service”. That the 1st defendant has no personal staff condition of service at the material time. The claimant condition of service is that Public Service Rules which is applicable rule to him while the defendant argued that the 1st defendant adopted the staff condition of service of NNPC. But that there is no evidence that the NNPC staff condition of service was used looking at the dismissal letters. The claimant counsel submitted further that the letter of offer of employment stated that other entitlements and obligations as revised attached to the offer as contained in the Board’s conditions of service. That the claimant maintained that the 1st defendant has no personal condition of service which it referred to in the letter of employment and maintained that the Public Service Rules was applied by the 1st defendant in dealing with him. The claimant counsel submitted that he tendered documents Exhibits PWA, PWE, PWI and PWL to proof his assertions. The claimant submitted that he is a very Senior Staff in the managerial cadre that he served the 1st defendant conscientiously till the date he was purportedly terminated. The claimant said that it is clear that he who has the power to hire also has the power to fire, and that the duty is contractual and cannot be donated to a stranger to carryout, without an express provision under the same contract. The claimant then referred to Section 3 of the Petroleum Equalization Fund (Management Board) Act which provides:- The Board may also, from time to time, appoint as employees of the board such number of persons as may be necessary for the administration of this Act, who shall be subject to the general control of the secretary and who shall perform such duties as the secretary may direct. To the claimant power to appoint, or employ staffs by the boards hinged on this Section and the Section also spelt out whose responsibility it is under a mandatory provision by the use of the word shall. That there is nowhere the 2nd defendant’s name was mentioned in this section as having power to exercise control over the employees of the 1st defendant. The claimant further referred to section 2 of the Act which relates to discipline of offenders also mentioned the Secretary of the Board without any reference to the 2nd defendant. That the only Section where the name of the 2nd defendant was mentioned is Section 12 of the Act relating to regulations which provides:- The Minister may with the approval of the National Council of Ministers, make regulations generally for the purpose of this Act. That the role given to the 2nd defendant is regulating and that the statute may and that this is subject to any other regulations where intended to be made to the overriding approval of the National Council of Minister. That this power does not include the power to fire or discipline officers of the 1st defendant. The claimant argued further that the power to appoint implies the power to remove and where the power to appoint is expressly stated by the Act, the power to remove is silent then the power to remove is implied Okomu Oil Palm Co Ltd V Iserhienrhien (2001) 6 NWLR (Pt. 710) 660. That the case of Bala Audu V Petroleum Equalization Fund (Supra) cited by the 1st defendant wherein the claimant was tried by he Disciplinary Committee of the 2nd defendant (Ministry of Petroleum Resources) who sent the report of the Board of the 1st defendant to carryout the termination but in the claimant’s case he was invited to be a witness, gave evidence left only for the 2nd defendant to dismiss him without fair hearing. The claimant then argued that the submission of the 1st defendant counsel that there was no Board in existence at the time hence the constant of 2nd defendant to dismiss the claimant is an admission that the 2nd defendant is not imbued with the power to terminate or dismiss the claimant. That the submission is also not supported by any evidence before the court. The claimant further contended that the defendants having elected or chosen to apply the Public Service Rules are expected to comply with the procedure of same relating to disciplinary action before dismissing the claimant. The claimant further submitted that Public Service Rules is the rule that recurs in all the official documents of the defendants in respect of the issues relating to the dismissal of the claimant. That none of the documents forming the basis for the contract of employment between the claimant and the 1st defendant made reference or mentioned of the NNPC staff condition of service as falsely claimed by the 1st defendant in his pleadings. That letter of employment is very clear, it states that its own condition of service applies but at the material time, it had none. This fact the 1st defendant admitted and pleaded in paragraph 3 tendered in evidence from which the court can ascertain the truth that a party who wants the court to believe a state of affairs, must place materials upon which courts will rely upon. That at the material time to his appointment it is the Public Service Rules that have been relied upon and applied in dealing with his employment by the 1st defendant he tendered Exhibits PWA, PW1, and PWL to buttress his claiming. That the Court of Appeal has resolved in a similar issue in the case of Bala Audu V Petroleum Equalization Management Board (2010) LPELR 3824 that since the employer has elected to apply Public Service Rules it shall consider the issues raised in the case in line with the relevant provisions of Public Service Rules as applicable to the plaintiff. The claimant submitted also that argument of the 1st defendant that he did not tender the Public Service Rules in evidence is not tenable as the court can take judicial notice by provision of Section 122 (1 and 2a) of Evidence Act 2011. He further urged the court to discountenance the evidence of DW1 as unreliable. The claimant also submitted that the letter of July 16th, 1996 Exhibit A5 relied upon by the 1st defendant was an application letter by the Secretary of the 1st defendant seeking approval for change in the salary structure to that of NNPC, but being a letter of request has nothing to do with disciplinary measures or actions of the 1st defendant and it has no relevance to this case as the issue before the court is not on the challenge of the salary structure of the defendant but the dismissal of the claimant. That it is also clear that there is no evidence that there was a reply from NNPC conveying approval of the request. Even if there is approval it was never used or applied to the claimant. The claimant submitted that nature of employment is determined by looking at the letter of employment and the conditions contained therein. That where there is documentary evidence before the court the court will rely on the documentary evidence to determine the conduct of the parties determine conduct of the claimant condition of service was intended to apply. Relying on the case of CBN V Agness Igwillo (2007) 14 NWLR (Pt. 1054) Pg. 393. That the conduct of the 1st defendant in the case cannot by way of cannon of judicial interpretation be said to reflect the position of common law relating to master and servant such contract is determined by his whims and paid of salary in lieu of notice. That the present case touched seriously on Public Service Rules which has been copiously quoted by the defendants themselves. He further emphasized that Elegba’s Disciplinary Committee claimed to rely on Public Service Rules as shown in pages 48 – 58 of the report. That he was also made to appear before the code of conduct Bureau which has a special preserve of public servant in Nigeria that all these procedures or steps have removed the contract of employment from mere master and servant relationship. That he cannot be properly or legally removed until the said rules are strictly complied with, referring to Section 04107 of Public Service Rules which states that:- An officer in the Bendel State Civil Service may be dismissed only in accordance with the provisions of the said Rules unless the method of dismissal is otherwise provided in the rules. That the claimant is not expected to tender the law as its already forms part of the documents of the court of law and must be judicially taking care of. Concluding the claimant counsel submitted that having established by evidence that the employer have always involved the Public Service Rules in dealing with the claimant by the election of the 1st defendant, the court will not make a new contract for the parties. On points of law the 1st defendant submitted that in absence of any evidence to the effect that the 1st defendant had no conditions of service at the time material of the case the claimant’s submission with is regard would be discountenanced by the court. The 1st defendant then argued that the appropriate question to be determined in this case is what conditions of service of the contract of employment exist between the claimant and the 1st defendant and governed the said claimant’s contract. The answer he gave was that it would be found in the claimant’s contract of employment, relying on the case of ANAJA V UBA PLC (2011) 7 NWLR (Pt. 1270) 377 at 392 – 393 and the case of JOWAN & Ors. V Delta Steel Coy Ltd (2010) LPELR 4377 (CA):- It is trite that where there is a document or series of documents incorporating the terms and conditions of an employment, a court of law should not look outside those terms in deciding the rights and obligations of parties thereto. That in determining the rules applicable to the claimant’s employment reference should be made to his letter of employment or service agreement. The 1st defendant also concluded on the submission of the claimant on the demeanor of the witness of the 1st defendant arguing that it is the exclusive preserve of the trial Judge. NNADOZIE V MBAGWU (2008) 3 NWLR (Pt. 1074) 363 at 389. On the issue of salary structure/conditions of service and fringe benefit, the 1st defendant submitted that the claimant based his argument on isolated part of the document that the entire document must be considered. On the parameters of a contract with statutory flavour the 1st defendant submitted that the contract must be governed by statute or conditions of service derived from, or made pursuant to a statute. That the question of whether the claimant/employment is one that can only be resolved by reference to the claimant’s contract of service or letters of appointment and not conduct of the 1st defendant as regards discipline of the claimant which the employer is at liberty to employ any method which can only be subject to the question of rightfulness or wrongfulness of same which will at best entitle the employee to damages in the event the court finds that it was wrongful. The 1st defendant then submitted that court should discountenance the submissions of the claimant in his final written address and dismiss same. I have carefully considered the submissions, the oral evidence, and the authorities cited by parties, the issues for the court to determine are as follows:- 1. Who has the power to determine the claimant’s employment, or whether the claimant’s dismissal was lawfully done. 2. Whether the claimant is entitled to the reliefs sought. In determining issue 1 it is pertinent to have regard to the status of employment of the claimant with the defendants. In the instant case it is not in dispute that the claimant was an employee of the 1st defendant. His terms of employment were embodied in his letter of appointment issued by the 1st defendant dated March 24, 1997 tendered at the trial as Exhibit PWA. Paragraph 2 of the Exhibit PWA the letter of offer of employment provides that:- The fringe benefits attached to the employment include free medical service for you and your dependants as laid down in our conditions of service, other entitlements and obligations as revised attached to this offer as contained in the Board’s conditions of service. The claimant’s appointment as a Manager was confirmed by the 1st defendant with effect from 4th April, 1998 by a letter dated 17th June, 2002. An employee who complains that his employment has been brought to an end wrongly must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract which is bed rock of his case. In the same vein the court is not entitled to look outside the contract of service as to the terms and conditions. This is the best and the only way of deciding the rights of the parties under the contract. The contention of the claimant is that rules and regulations regulating the relationship between him and the 1st defendant is the Public Service Rules. That the defendants did not comply with the procedure of the Public Service Rules relating to disciplinary action before dismissing him from the service of the 1st defendant. The claimant further contended that the Public Service Rules was applied by the defendants in all official documents relating to him and the issues relating to the dismissal of the claimant. That the NNPC Staff Conditions of service was not used by the defendants in any matter relating to him. He contended that the defendants having elected to apply the Public Service Rules to his case they cannot renege or denied the issue of it. Having considered the submissions of the parties as to their contentious what rules that governed claimant employment with the defendant, it is very obvious that the 1st defendant Petroleum Equalization (Management) Board has not got its own conditions of service at the time the claimant was appointed hence the Board had resorted to the use of the Public Service Rules. The denial of the use of Public Service Rules as not being applicable to the claimant’s use is not correct as the claimant has been able to establish that the defendants applied the provisions of Public Service Rules in their dealings with him. For instance the Board of directors of the 1st defendant relied on the provisions of Public Service Rules 04423(a) in suspending the claimant though a letter dated 30th March, 2006. So also in dismissing of the claimant the 2nd defendant Ministry of Petroleum Resources by a letter dated 8th December, 2006 relied on the provision of Public Service Rules No. 04401, on ground of the serious misconduct to do this. The 1st defendant also having established that the 1st has no conditions of service it can call its own and the rules that was applied to dealing with the claimant throughout was the Public Service Rules. The NNPC conditions of service the 1st defendant wanted to rely on was never tendered before the court. Also no Section of the NNPC conditions of service or its provisions were referred to as given the 2nd defendant the power to dismiss the claimant. The area of dispute in this case relates to the manner of the removal of the claimant. Has he being removed by the appropriate authority? Was he given fair hearing before he was recommended for dismissal by the Elegba’s Committee. The claimant argument is that he was not given fair hearing before he was dismissed and that being an employee of the 1st defendant the 2nd defendant has not got the authority to dismiss him. On the fair hearing the claimant submission that he was dismissed based on the report of the investigation committee on allegations of victimization and Mal-Administration made by Mr. Filibus Shettima Madu against the Executive Secretary, Petroleum Equalization Fund, where the terms of reference of the Elegba’s Committee are as stated in the reports are:- Term of Reference No. 1. To investigate the circumstances that led to the termination of the appointment of Mr. Fibibus Shettima Madu by the Governing Board of Petroleum Equalization Fund. Term of Reference No. 2. Determine whether or not due process was followed by the Management Board of Petroleum Equalization Fund in terminating the appointment of Mr. Filibus Shettima Madu. Term of Reference No. 3. Examine the claims of Mr. Filibus Shettima Madu with regard to victimization the termination his appointment and Mal-Administration against the Executive Secretary of the Petroleum Equalization Fund. Term of Reference No. 3(sic) 4. Examine the claims of Mr. Filibus Shettima Madu with regard to victimization in the termination of his appointment and Mal-Administration against the Executive Secretary of the Petroleum Equalization Fund. The Committee was inaugurated on the 13th March, 2006 and was given 2 weeks from the date of its inauguration to submit its report. This Committee invited the claimant to appear before the Committee in the investigating the allegations of victimization and Mal-Administration against the Executive Secretary Petroleum Equalization Fund by Mr. Filibus Shettima Madu to shade light, I quote:- Mr. Filibus Shettima Madu the petitioner, informed the Committee that you might be able to assist the Committee with further insight into the issues he raised in his petition. Overall it is envisaged that you might assist the Committee to further appreciate the issue, thereby enabling it to make appropriate recommendation. 3. The purpose of this letter, therefore, is to invite you to a meeting with the Committee From the facts gathered from above, the Elegba’s Committee was set up for the purpose of which was to investigate some allegations made against the Executive Secretary of Petroleum Equalization Fund by Mr. Filibus Shettima Madu over allegations of victimization and mal-administration. The Investigation Committee was against the Executive Secretary and not the claimant. The conduct of the claimant was not an issue in the investigation. The claimant was not the subject matter of investigation. It must also be borne in mind that the term of reference is not that the claimant has committed any offence. There is nothing on the face of the invitation which could have given the claimant the notice that he was on trial or that his conduct was to be probed. He was invited to testify, there is nothing which can remotely be said to connect the claimant with the terms of reference. He was a witness of the Committee. It is not the law that being a witness in an inquiry satisfies the requirement of natural justice. The main issue in the instant case is as to the issue of the observance of the rules of natural justice by the Elegba’s Committee whether non-observance of the fore said rules vitiates the entire proceedings up to and including the letter of dismissal. Most importantly the deprivation by an administrative committee of a citizens right to know his offences and be given the opportunity to defend himself offends the provisions of fair hearing guaranteed by the constitution. The claimant was not informed of the case against him, nor given the opportunity to defend himself. He was present there as a witness. It is however, surprising that the Elegba’s Committee went outside the terms of reference given to them. They recommended the dismissal of the witness that is, the witness became the victim. Since the invitation sent to the claimant was for him to be there and shed light on some issues, it was obvious that the claimant was not given opportunity to prepare for his defence and to defend himself if any allegation was made against him by the Elegba’s Committee. The pertinent question to ask is whether there exist special circumstances from the facts of this case which warrant the reinstatement of the claimant to his former office. The Elegba’s Committee went out the terms of reference given it and cruelly and unjustly breached the claimant’s right to fair hearing and natural justice. This is because the claimant was not aware of any allegation made against him before the panel, the claimant was not given opportunity to defend himself. The report of the Elegba’s committee on the investigation of the alleged victimization and Mal-Administration made by Mr. Filibus Shettima Madu against the Executive Secretary of Petroleum Equalization Fund was sent to the 2nd defendant the Ministry of Petroleum Resources, who later sent a recommendation to the then President of this Country Chief Olusegun Obasanjo for approval of the dismissal of the claimant. The Elegba’s Committee recommending the claimant’s dismissal was unlawful in the first instance because the committee was not set-up to try Mr. Almaroof the claimant in this case, and the Committee having acted outside the terms given to them, the recommendation that Mr. Almaroof the claimant be dismissed is a nullity and is hereby set aside, notwithstanding that the President of the Country gave his approval to the dismissal. The constitutional right of the claimant was breached by all the parties involved in the whole Saga. Section 36(6) of the 1999 Constitution on Fundamental Right cannot be wished away or waived. The Constitution of the Country is the supreme law of the land and act done not consistent with it is null & void and of no effect. It means therefore that the letter of dismissal dated 8th December, 2006 is unlawful and is hereby set aside. What the defendants did was to mislead the President of the Country in taken a wrongful decision and the 2nd defendant decided to get the president word or approval to cloth the illegality they had committed. The defendants have put the President in an unfortunate position when he had to take the decision in which he was not seized of the facts and has no power to do exercise in that respect. What now remains to be considered is the effect of this erroneous exercise of powers over the dismissal of the claimant. The law is that he who has the power to hire had the right to remove, where the power appoint is silent or the power to remove that will be implied. Okamu Oil Palm Co. V Iserhienrhien (2001) 5 NSCQR 802. Assuming but not conceding that the 2nd defendant decided to act for the Board that was not in place at the material time, the 2nd defendant did not act lawfully breached the fundamental right to fair hearing of the claimant, considering the fact that the claimant became a victim before a panel investigating another official of the 1st defendant which has no connection or related to the claimant. To have accepted Elegba’s Committee’s report is without gainsaying an unknown act. In the result I will therefore, enter Judgment for the claimant as per his claims, for the avoidance of doubt, I grant the following reliefs:- a. A Declaration that the dismissal of the claimant as contained in a letter reference No. MPPS/S.1/21 of 8th December, 2006 from the services of the 1st defendant is unlawful in that it is against the principle of natural justice, ultra vires and of no effect. b. A Declaration that the claimant is still on the service of the 1st defendant and he is entitled to all his dues as an employee of the 1st defendant. c. A Declaration that the claimant who is an employee of the 1st defendant be immediately re-instated by the 1st defendant to his position as Manager with the 1st defendant without loss of promotion, increment of salaries and allowances. For the reasons given above, the claimant’s case succeeds. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE