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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: 5TH MARCH, 2015 Suit No. NICN/ABJ/57/2011 BETWEEN MR. OLUWOLE OYEGUN CLIAMANT AND NIGERIAN EXPORT PROMOTION DEFENDANT COUNCIL REPRESENTATION Ken. D. N. Obinatu Esq for the Claimant. E. S. Danjuma Esq for the Defendant. JUDGMENT By the claimant’s amended complaints and the statement of facts the claimant claims against the defendant the following reliefs:- a. A declaration of the Honourable Court that the purported dismissal of the claimant is wrongful, illegal, null and void and amounted to a breach of fair hearing for not complying with the relevant provisions of the public service rules (PSR) 2008. b. A declaration that the claimant is still in the employ of the defendant. c. An Order of the Honourable Court setting aside the said dismissal letter dated the 22nd day of June, 2011. d. An Order of the Honourable Court mandating the defendant to release the promotion result/letter of the 2009 promotion interview of the claimant and calculate his entitlements therefrom and pay it to him. e. An Order of the court mandating the defendant to access and pay the claimant his areas of salary at the sum of N101,000.00 monthly from the month of July, 2011 when he was purportedly dismissed till Judgment. f. An Order of this Honourable Court asking the defendant to pay the complainant the sum of N76,700.00 being the sum approved for the trip of 15/07/10 but which the defendant refused to pay even though the complainant made the trip. g. The sum of N94,000.00 being the money approved for the trip of 22/12/10 which trip the claimant made but the money approved was not paid. h. An Order of the Honourable Court asking the defendant to pay the complainant the sum of N100,800.00 that was approved for the trip of 25/01/11 which trip was made but the money was not paid. i. The sum of N30,000,000.00 (Thirty Million Naira) Only as damages for wrongful, malicious and invalid dismissal of the complainant, j. And of such further and better orders as this Honourable Court may deem fit. Accompanying the complaint are the claimant’s amended statement of facts, witness statement on Oath, list of witnesses and list of documents to be relied upon. The defendant reacted to this complaint by filing its amended statement of defence, witnesses’ statement on Oath, list of witnesses and list of documents. When the matter came up on the 28th of October, 2011, for mention. The defendant’s counsel informed the court that they were yet to file their memorandum of appearance and other accompanied processes. The respondent was given 14 days to file the defence by 10th of November, 2011 and the case was adjourned to 15th of November, 2011 for further mention. On 15th November, 2011, the case was adjourned to 8th December, 2011 because the defence counsel Peter Dauda Esq filed the memorandum of conditional appearance, and preliminary objection which were served on the claimant’s counsel that morning. On 8th of December, 2011 the preliminary objection was held and Ruling was reserved for 14th of December, 2011. On 14th December, 2011 the Ruling was read and the case adjourned for further hearing to 30th of January, 2012. On 30th January, 2012 the claimant’s counsel K. Obinatu Esq was in court while the defendant’s counsel Peter Dauda Esq was absent in court. Through a letter he sent he claimed he was bereaved. For this reason the case was adjourned to 21st of February, 2012 for hearing. On the 21st February, 2012, a counsel holding the brief of Peter Dauda A. J. E. Okoh brought an application for extension of time to file defendant statement of defence out of time. The claimant counsel complained that he was just served the bulky document that morning and would need about 2 days to study the document if there would be need to reply to some issues raised. The court allowed A. J. E. Okoh moved his motion which was granted and the claimant was also given opportunity to react to the statement of defence by the court granting his application for adjournment. Thereafter, the case was adjourned to 8th March, 2012 for further hearing. On the 8th March, 2012 the matter could not go on because the claimant decided to file a motion for leave to file his reply to statement of defence. The case was adjourned to 22nd March, 2012. On 22nd March, 2012 both counsel were present in court. The claimant counsel submitted before the court that he was served with a motion titled re-proposed amendment statement of defence that morning. He then submitted that considering the fact that the pending motion is a reply to the statement of defence he felt it would be neater to keep the record straight by filing an amended statement of claim. The case was adjourned to 17th April, 2012. On the 17th April, 2012, both counsels were present. The claimant brought two motions the first one for leave to file a defence to the defendant statement of defence. The 2nd motion was for leave to amend the endorsement and the statement of claim. Peter Dauda Esq who was being represented in court by Mrs. Rahila Asaje objected to the last motion being moved according to him he was only served yesterday and the rules gives 3 clear days for him to react. The case was adjourned to accommodate his objection to 7th May, 2012. The case came up on the 24th of May, 2012 Peter Dauda was absent in court he claimed he was bereaved. He gave the same reason earlier. There was no letter to that effect. Peter Dauda has in Chambers other counsel namely Mrs. Rahila J. Asake, J. E. Okoh. He was accommodated the case was adjourned to 31st May, 2012. On the 31st May, 2012, the claimant moved his motion to amend his complaint and statement of defence. Peter Dauda filed a counter-affidavit opposing the application. Ruling on this application was given on the 29th June, 2012 and the claimant was given leave to amend his complaint and statement of claim. On the same day 29th June, 2012 when the ruling was given the defendant being represented by Rahila J. Asake holding the brief of Peter Dauda told the court of the intention of the defendant to response to the amended statement of facts and the claim, that they intend to file a new defence by 17th of July, 2012. The court obliged them and the case was adjourned to 9th November, 2012. On 9th November, 2012 Peter Dauda was represented by Rahila J. Asake. The defendant wasted the time of the court rather than filing its new amended statement of defence as he requested for, he decided to mislead the court, asking for leave to file a new motion for the amendment of the new amended statement of defence by 15th of November, 2012. The case adjourned to 6th of December, 2012. On 6th of December, 2012 both parties were present in court, the defendant’s counsel was yet to file his statement of defence. Peter Dauda Esq wasted the time of the court. He claimed he was waiting to get additional document from the defendant and that he was still holding meeting with the legal department and all those involved in the matter, in which proceedings has commenced. The court also indulged him inspite of the objection raised by the claimant’s counsel. The case was adjourned to 22nd January, 2013. The claimant’s counsel argued that if by that date the almighty amendment is not filed the window of right to defend be closed. The case adjourned to 22nd January, 2013. Before I proceed further, it should be note that for a whole year Peter Dauda Esq frustrated the case and wasted the time of the court, and all effort to make the case progress to hearing failed. On 22nd January, 2013 both the counsel were in court. The claimant’s counsel told the court that the case was slated for the moving of the motion for the amended statement of defence. When it was Peter Dauda’s turn to talk he told the court that the defendant had just filed the motion the previous day and that they were not aware that the witness statement on Oath was not there. They needed to go back and filed the witness statement on Oath. In order that the matter could make progress the claimant’s counsel who was served in the court hall that morning decided not to oppose Peter Dauda’s motion for leave to amend the statement of defence. The motion was moved and granted. Peter Dauda decided he was not ready to go on with the case that day. The case was adjourned to 5th of February, 2013. On the 5th February, 2013 the application of the defendant for leave to file additional witness statement on Oath was move. The claimant’s counsel asked for a short adjournment to 20th February, 2013 to enable him react to the amendment statement of defence. On the 20th February, 2013 the case could not proceed because the claimant also is seeking for leave to file his witness statement on Oath which was not filed at the time the statement of claim was filed with the thought that the Practice Direction issued by the President of the court was not applicable to them since the case was filed before the Practice Direction was issued. I disagreed with the counsel and ordered him to file one. The case was adjourned to 14th March, 2013. On 14th of March, 2013 when the claimant moved his motion for leave to file his witness statement on Oath, out of time Peter Dauda in order to cause delay and frustrate the case raised objection to some of the paragraphs. He was overruled by the court. On the 14th March, 2013, hearing of this matter commenced and examination in chief concluded the same day. The matter was adjourned to 29th April, 2013 for cross examination. Before I continue I wish to state here that because of the nature of this case, and because of a very long argument between the two counsels, my policy is to have very few cases each time this case is coming up. The purpose is to make it possible for parties to have enough time to do their case. On the 29th April, 2013, the matter came up for cross-examination, both counsel were present in court. The cross-examination began on the 29th April, 2013 the case was adjourned to 16th May, 2013 for continuation of cross-examination. On 16th May, 2013 the case could not proceed as claimant’s counsel was absent due to ill-health. The claimant’s counsel suggested dates not convenient to Peter Dauda the court took the date suggested by him which was 26th June, 2013. On the 26th June, 2013 the claimant’s counsel who was ill the last time was in court Peter Dauda Esq the defendant’s counsel was absent and no letter or reason(s) given for his absence. The court also accommodated his excesses. The case was adjourned to 11th July, 2013. On 11th July, 2013 both counsel were in court Peter Dauda came with an application to file other witness statement on Oath. The application was opposed by the claimant’s counsel, the objection was later withdrawn. The application of the defendant to file further witness statement and additional witness statement of defence was granted. Thereafter, on this day Peter Dauda Esq continued the cross-examination of the claimant which was not concluded because Peter Dauda Esq said he was not ready to continue with the cross-examination and the case was later adjourned to 21st October, 2013. On 21st October, 2013, the claimant and his counsel were present. Peter Dauda Esq was absent and no counsel was present for the defendant. But before the adjournment on 21st October, 2013 the learned counsel for the claimant Bar. Ken Obinatu, informed the court, I quote:- Just about fifteen minutes ago the counsel for the defendant came into the court. He excused me out and told me about his health condition that precludes him from continuing the case. Based on this he pleaded with me to ask for a short adjournment to enable him attend to his health condition. I conceded to the adjournment. He suggested two dates 18th & 19th November, 2013. I prefer 18th November, 2013. Based on this information from the claimant’s counsel the case was adjourned to 18th November, 2013. On 18th November, 2013 the claimant’s counsel was in court Peter Dauda Esq was absent. The claimant responded to Peter Dauda’s absence this way, I quote:- Obinatu - on 21st October, 2013, this matter came up, counsel for the defendant came into the court called me out and informed me that he was very sick and that he could not stay for the hearing. This information I relate to the court subsequently, the court graciously granted us an adjournment till today for continuation of cross-examination. Prior to 21st October, 2013, there was a Marathon cross- examination by our written records it is 18 pages which is yet to be concluded as at to date when the counsel gave us that information on the 2nd October, 2013, we took him being very sincere and straight forward. Last Friday, I got a shocking text on my phone from the counsel to the defendant informing me that he has filed a motion on this matter and that the matter cannot be on. Neither me nor my client has been served with any motion, but this morning 18th November, 2014 I tried to make enquires from the registry and the Secretariat to my shock and disappointment, that the counsel to the defendant filed a motion asking the court to disqualify itself and transfer the case to another court on a spurious and careless ground that cannot be substantiated at all. To add insult to injury he dumped the motion in the court and assumed jurisdiction on this case himself and decided not to show up in the court neither him nor his representatives. In view of the fact that I have not been served of the motion up till this moment, I am not in a position to join issue with the motion. I will rather restrict myself to the business of the day which is cross-examination of the claimant. In order not to help his spurious assertion. I will not make an application to foreclose his cross-examination. I will make an application for a short adjournment for us to join issues on the application. In the course of proceedings around 11.35am, the counsel holding the brief of Peter Dauda came into the court and introduced himself as S. A. Yilkis. He told the court that they have a motion dated 14th November, 2013 and filed on 15th November, 2013. He is seeking the transfer of the case to another Judge. The counsel was told that the motion could not be moved because Peter Dauda Esq the defendant’s counsel was yet to serve the claimant’s counsel the motion for his reaction. The case was adjourned to 26th November, 2013 for the moving of the motion. On the adjourned date of 26th November, 2013, the claimant’s counsel Ken Obinatu Esq was present in court, neither Peter Dauda Esq nor any of his counsel were present in court to move the motion for transfer of case to another Judge. The claimant’s counsel informed the court that they filed a counter-affidavit to the motion. The matter could not proceed because the bailiffs were yet to serve Dauda the counter affidavit. The case was adjourned to 6th December, 2013 for moving of the motion. The case suffered series of adjournment until 17th December, 2013, when one Emmaneul Danjuma with one L. L. Sayma appeared in court as counsel representing the defendant. Emmanuel Danjuma told the court, I quote:- I am just coming into the matter, and I pray that the court should grant me all the opportunities to put in my best to see that the case is completed in time. Obinatu – counsel for the claimant told the court that the application being made by the counsel has been repeated several times by counsel in this case. That on 18th November, 2012 one counsel S. K. Yalkis came and told the same story. He said the difficulty is not the granting of the adjournment but the poor man the claimant. After all said and done the case was adjourned for Emmanuel Danjuma to come in as the counsel in this case. His presence as the new counsel in the case was confirmed by the defendant representative in the court in the person of Bar. Anchor who told the court that E. S. Danjuma is the new counsel and that Peter Dauda Esq is no longer in the case. The case was adjourned to 30th January, 2014 for the new counsel to come in properly. On 30th of January, 2014 the new counsel Danjuma said, I quote:- Danjuma - In the light of what happened at the last adjournment I discovered that our motion dated 14th November, 2013 and filed 15th November, 2013 deserve to be withdrawn in the interest of justice. And I formally asked for the withdrawal of the said motion. On this date the claimant was represented by Eze Christiana who did not oppose the application. Thereafter, E. S. Danjuma Esq requested for an adjournment to enable him continues with the cross-examination. This application was granted and the case adjourned to 11th March, 2014. On the 11th of March, 2014 the cross-examination opened since 29th April, 2013 was continued and concluded this day by the new counsel E. S. Danjuma Esq. The case was adjourned to 30th April, 2014 for defence to open his case. On 30th April, 2014 the matter could not be heard and was adjourned to 28th May, 2014 due to Mr. Emmanuel Danjuma, purported ill-health. The case was further adjourned to 25th June, 2014. On 25th June, 2014 the claimant’s counsel was in court the defendant’s counsel Mr. E. Danjuma was again absent. The court obliged the defendant further and granted an adjournment to 15th July, 2014. On 15th July, 2014, at the hearing of the case the claimant’s counsel appeared for his client. For the defendant Peter Dauda who last appeared in this case on the 11th July, 2013 surfaced and announced himself as the counsel for the defendant. It was then the claimant’s counsel raised an objection to his appearance that the proper counsel in this case is Mr. Emmanuel Danjuma that so far there has been no notification of change of counsel again by the defendant to be Peter Dauda. I will quote the claimant’s counsel:- Obinatu - The matter is for the opening of defence. On 17th December, 2013 the counsel in the name of Danjuma Emmanuel appeared in the case and sought for a notice of change of counsel. In the court the permanent representative of the defendant Barrister Achor was present in the court. The Barrister Achor briefed the court on why they debriefed Peter Dauda. After which the court made an order allowing Danjuma to be the counsel. We seek the representative of NEPC as well as other from Danjuma. In view of this new development the court requested the representative of the defendant in the court that day Mrs. Julie Onuoke a legal officer in the defendant Organization to get a confirmatory letter from the defendant on the change of counsel. That the counsel on record is Emmanuel Danjuma and the defendant has not furnished the court of the name of the new counsel. I demanded a formal letter from the defendant in that as far as the court is concerned Peter Dauda had ceased to be counsel in this matter. He was last seen or appeared in the case on the 11th July, 2013. The counsel on record is Emmanuel. S. Danjuma Esq. The case was adjourned to 17th September, 2014 for the court to be informed of who is the counsel for the defendant. On this date the defendant was absent, there was no counsel representing the defendant and the permanent representative was also absent. The case was further adjourned to 16th October, 2014. On the 16th of October 2014, Bar. Danjuma appeared in the court and the defendant representative Bar Ben Achor was also present in court. Bar. Danjuma informed the court that he was no longer in the case. The court requested for formal letter to that effect from him which he failed to write. The matter was adjourned to 27th of October, 2014, for the defendant to comply with court order whether there has been another change of counsel. On the 27th of October 2014 the claimant counsel was present the defendant counsel was absent and his representative Bar. Ben Achor was also absent. At this junction the claimant counsel addressed the court on the antecedents of the case and the counsel in this case and told the court that there comes a time when the court must not only bear its teeth but also bites. He said the court has indulged the defendant for a very long time and he shall therefore be applying for their defence to be foreclosed. He further said that the claimant closed his case on the 14th of March 2013 and the cross examination of the claimant was concluded by Bar. Danjuma on the 11th of March 2014. To the claimant counsel the defendant had taken everybody including the court on a ride. That the defendant matter should be foreclosed having been given the opportunity to present his case and has failed to do so. The court then ruled that the defendant’s case is foreclosed and adjourned for filing of final written addresses by parties. Thereafter the case was adjourned to 27th of November 2014 for adoption of final written addresses. On the 27th of November 2014, the claimant counsel was in court but there was no legal representation as per counsel for the defendant. However Bar. Ben Achor representing the defendant was present in court and brought in an application for an adjournment of the case. The claimant counsel did not object to their application for adjournment in view of the fact that he brought in application for an extension of time to file his final written address. That the defendant is still within time to file their response on point of law to the claimant’s final written address and that the motion for extension of time is not ripe for hearing at that morning. The case was adjourned to 9th of December 2014 for adoption of final written addresses. On the 9th of December 2014 the claimant counsel was in court but the defendant was neither represented by any counsel nor his representative Bar. Ben Achor in court. Thereafter, the final written address filed on behalf of the claimant was adopted and the case was adjourned to 5th March 2015 for judgment. I have decided to narrate the proceedings in this matter leading to the award of judgment, and to show how the two counsels to the defendant and representative of the defendant Bar. Ben Achor have attempted to frustrate the hearing of this case. The rules of this court Order 11 Rule 6 provides that “Application for adjournment at the request of a party shall not be made more than twice”. It is very obvious that the court had tolerated, accommodated and given the defendant the opportunity to present his case. But unfortunately, all efforts were frustrated. The court has no option than to bring the case to an end for lack of diligent prosecution by the defendant. By ruling delivered by the court on 4th of March, 2015 the court dismissed the defendant application to set aside the order to foreclose the defendant case and allowed him to defend the case. It is evident from the records of the court and the processes filed therein, that the defendant counsel filed the defendant statement of defence and appeared in court to represent the defendant before the old and new counsel before abandoned the case. They deliberately refused to attend court’s hearing, inspite of the several hearing notices served on the defendant and their counsel to ensure their attendance in the court to defend this suit. On the 9th of December, 2014 the claimant counsel adopted the claimant’s final written address. In doing this, the claimant’s counsel framed a sole issue for determination of the court to wit:- Whether the claimant has proved his case on the preponderance of evidence to be entitled to judgment in this suit? On the sole issue the learned counsel for the claimant commenced by submitting that it is the general and accepted principle of law that all civil cases or claims must be proved on the preponderance of evidence and balance of probabilities. In other to determine the balance of probabilities or preponderance of evidence, the trial judge is involved in some imaginary ‘weighing’ by resorting to the imaginary scale of justice. See Mogaji V Odofin (1978) 3 SC 91. In other to discharge the initial onus of proof placed on him by S. 131(1) and 132 of the Evidence Act 2011 the claimant testified by himself giving a firsthand information of what, when and how events actually transpired. The claimant tendered 22 exhibits to corroborate his ‘ipse dexit’ testimony. The learned counsel submitted that in the course of the case of the claimant, he was able to prove before this court that he was actually and legally employed on the 21st July, 1986 via Exhibit PW1 by a Government Agency known as The Nigerian Export Promotion Council (NEPC) the defendant. He further gave evidence that the employment was later confirmed by virtue of exhibit PW2. To the defendant counsel this is an employment with clear statutory flavour because the defendant is not only created by statute, but the ‘term of employment and discipline’ are as contained in S. 6 of the Nigerian Export Promotion Council Act, 2004 which provides inter alia as follows:- The council may make staff regulations relating generally to the conditions of service of the employees of the council and without prejudice to the generality of the foregoing, such regulations may provide for:- a. The appointment, promotion and disciplinary control of all employees of the council; and b. Appeal by such employees against dismissal, or other disciplinary measures, And until such regulations are made, the regulations relating to the conditions of service of officers in the civil service of the federation and provisions of the pensions Act shall be applicable with such modifications as may be necessary to the staff of the council The defendant is created by an Act of Parliament and because it has not made its own rules and service, resort to the Public Service Rules, 2008. Therefore, the employment of the claimant is one with ‘statutory flavour’. The learned counsel then submitted that the claimant further proved that he was promoted on the 11th January, 2004 to level 09 with effect from 1st January, 2004. He equally adduced evidence to the effect that he never committed any official wrong doing in the defendant’s office other than buying plot 84 Gudu street, 2(1) Kubwa which triggered a litigation by a co-occupier of the house. Claimant also proved that his subsequent promotions were actually withheld simply because somebody dragged him and the defendant to court contesting the house he (claimant) bought. There were pieces of evidence before the court too that the first query, (exhibit PW14) on the strength of which his promotion was stopped and suspended by the Director of Administration with the defendant. See exhibit PW6. By implication therefore, exhibit PW4 lacks legal force and exhibit PW6 could not have been the foundation of the order contained in it. The order suspending the claimant’s promotions, exhibit PW4, was therefore malicious, wrongful and unlawful and he urged this Honourable Court to so hold. The learned counsel referred to exhibits PW4, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16, PW17, and PW18 were all a long line of maltreatments, official intimidation and unfair denials. To the counsel all the testimonies of the PW1, i.e. claimant were corroborated by the exhibits before the court. Apart from merely filing a statement of defence and 9 witness statements on Oath, which defence was not opened, the defendant did not make any active effort to deny the case of the claimant. The counsel went on to submit that the documentary evidence led were not challenged by the defendant through cross-examination neither was any evidence oral or documentary led in rebuttal of the said claimants documentary evidence. It is trite principle of law that an unchallenged evidence of a party must be accepted by the court and accorded the right probative value. In the case of Isibor V Fakorode (2008) NWLR (Pt. 1069) 602 at 621 and 628 it was held as follows; ‘where evidence given by a party is not contradicted by any admissible evidence, the court is bound to accept and act on that evidence’. Every piece of evidence led by the claimant remains uncontradicted. It is the case of the claimant that he did not write any petitions, moreso, that he never committed any of the offences detailed in Exhibit 20. That the defendant has not led any evidence to deny this. Moreso the procedure adopted by the defendant for the alleged disciplinary trial is irredeemably faulty. The defendant is a creation of statute having been created by the Nigerian Export Promotion Council Act, which at S. 6 thereof provided for the rules to be adopted for the appointment, promotion and disciplinary control of all employees of the Council. However, at the same S. 6 the Act provided for a saving clause by stating that until the defendant makes its rules of service it must adopt that guiding the civil servants of the Federal Government of Nigeria. The employment of the claimant therefore is the one with ‘statutory flavour’ and he so urged the court to hold. The claimant submitted that the Public Service Rules (PSR) 2008 is clear on the procedure to be followed in a situation where the alleged offence is a ‘serious misconduct’. At PSR 030401 a ‘serious misconduct’ is defined as a specific act of very serious wrong doing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal. To the counsel authors of the query of 27th August, 2010 made it very clear that the offence being queried for was a ‘serious misconduct’, the counsel then referred the court to exhibit 20. The query itself stated that the proof of one or all of the charges will definitely lead to dismissal. The claimant submitted that the procedure for the issuance of a query for such alleged erring officer is provided at PSR 030307 (1). This provided as follows; 030307 (1) – ‘the officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate to the circumstance of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to documents. The officer specified in the query any grounds upon which he/she relies to exculpate himself/herself’. To the counsel the clear provisions of PSR 030307(1) has been terribly violated by the defendant in its hurry to crucify an innocent man. The claimant was not given access to the alleged petitions mentioned in exhibit PW20. The mere fact that the petitions and their respective dates were mentioned pre-supposes that the defendant was in custody or has access to them. The claimant was and remains confused to this moment on the alleged acts against him for which he was dismissed from his employ. To the counsel the defendant does not have the power to pick and choose on how to discipline a senior civil servant in the face of a clear legal provision to that effect. That the Supreme Court (SC) has held in the case of Olufeagba V Abdulraheem (2009) 18 NWLR (1173) at P. 462 Paras. C- D as follows:- An avalanch of court decisions have pronounced that where contract of service enjoys statutory protection it can only be terminated in the manner prescribed by the enabling statutory provisions, a breach of which renders the act ultra vires and void’. The provision of PSR 030307(1) has been irredeemably breached by the defendant. The absence of the attachment of the petitions and their accompanying attachments to exhibit 20 render the procedure illegal and void. It confused the claimant and made a mess of the hallowed principles of fair hearing enshrined in our constitution. The counsel submitted that the alleged phantom disciplinary hearing carried out on the claimant, if anything was irredeemably faulty. You cannot keep something on nothing and expect it to stay. There is no basis for any Senior Staff Disciplinary Committee hearing because the foundation, the exhibit 20 is irredeemably faulty. The breach of PSR 030307(1) has gravely affected everything done in respect of the purported disciplinary process and has rendered all the actions carried out pursuant to it null and void. See the case of Olufeagba V Abdul-raheem (supra). What is more? The alleged disciplinary hearing lasted roughly 11 months as against 60 days legally prescribed. See PSR 030307(xiii). The query that commenced the hearing was issued on the 27th August, 2010 while the dismissal was on the July 2011. The counsel finally submitted that once the disciplinary procedure is illegal, ultra, vires, null and void and the claimant’s employment is one with statutory flavour, he urged the court to order the ‘re-instatement’ of the claimant to his job and all the reliefs claimed by the claimant be granted by this honourable court. That the Supreme Court has held in the case of Olufeagba V Abdul-raheem (supra)at page 440 paras A – C as follows:- An employee with employment enjoying statutory flavour and whose employment was illegally terminated is entitled to re-instatement even if he had secured employment during the pendency of the case’. The counsel urged the Honourable Court to enter Judgment for the claimant and grant all the reliefs claimed. Having considered all the processes filed in this matter, the issue before the court to determine is:- Whether the claimant is entitled to the reliefs sought. It is on record that the defendant was represented by counsel who entered memorandum of appearance, filed statement of defence and other accompanying processes and represented by counsel in this case, before the counsel abandoned the case midway inspite of the several hearing notices served on the counsel and the defendant, Nigeria Export Promotion Council to ensure their attendance in the court to defend the case. The failure of the defendant to attend the court and enter their defence led to an application moved by the claimant urging the court to foreclose the defendant from defending this case and ordering parties to file their final addresses. The defendant was served with the claimant’s final written address but neglected, ignored and refused to file any final written address. The defendant offered no evidence in its own defence at the hearing before the trial court, but dully filed its statement of defence and other processes, it must be borne in mind that in law that an averment in pleadings is not tantamount to evidence and cannot be construed as such. The law is clear that where evidence given by a party to any proceedings or by his witness is not challenged by the opposite side who had the opportunity to do so, it is always open to the court to seize of the matter and act on such unchallenged evidence before it. See Isaac Omoregbe V Daniel Lawani (1980) 3 – 4 SC 108 at 117, Nigerian Martitme Services Ltd V Alhaji Bello Afolabi (1978) 2 SC 79 at 81 and Boshali V Allied Commercial Expertors Ltd (1961) All NLR 917. The fact that the defendant offered no evidence whatsoever in its defence, in this sort of circumstances the evidence before the court obviously goes one way with no other set of facts or evidence weighing against it. There is nothing in such a situation to put on the other side of that proverbial or imaginary scale or balance as against the evidence given by the claimant. In OJOH V KAMALU (2005) 18 NWLR (PT. 958) PG 523 @ 565, PARAS G – H, the Supreme Court per TOBI, JSC held thus:- …… Pleadings, not being human beings have no mouth to speak in court. And so they speak through witnesses. If witnesses do not narrate them in court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantages of the owner ….. In ALAO V AKANO (2005) 11 NWLR (PT. 935) 160 @ 180 PARA ….. where AKINTAN, JSC held as follows:- ….. The law is settled that where issues are joined on any averments in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. In other words, such averment could be treated as having been abandoned. On the import of an abandoned pleading, the Court of Appeal per OGUNBIYI JCA (AHTW) IN AREGBESOLA V OYINLOLA (2011) 9 NWLR (PT. 1253) PG. 548 @ 597 PARAS C – D stated the position of the law more aptly thus:- ….. an abandoned pleading is dead and “to the procedural disadvantage of the owner. “Further still and in addition to it being dead, the effectual presupposition is that issues are no longer joined because their being nature of the pleadings can no longer speak through the language of a witness. The consequential outcome is that the there would be no reply at all on record in which case, issues are no longer denied because there is no denial. In DANJUMA V TERENGI (2011) 6 NWLR (PT. 1244) PG 542 @ 557 PARAS A – B, the Court of Appeal per YAYAHA stated the position of the law thus:- ….. In the instant case, although the respondent pleaded who founded the land originally, he did not lead any evidence in proof of the pleading. Pleadings not supported by evidence are deemed abandoned …. In the case of Adebiyi V Umar (2012) 9 NWLR (Pt. 1305) Pg. 279 at 296 Paras F – H, Mbaba JCA stated thus:- The rules governing affidavit evidence and in fact, any pleadings is that when a fact(s) asserted is not denied or controverted by the adverse party who has a duty to do so, the same is deemed to have been admitted by him (adverse party) and the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of Section 75 of the Evidence Act. In this case proof a civil matters is on preponderance of evidence and when there is no evidence to put on one side of the scale of justice, as in this case where the defendant elected not to lead evidence, the minimum of evidence on the other side of the scale fills the scale in satisfaction of the requirement of the law as led down by the Supreme Court in Magaji V Odofin (1973) 3 – 4 SC 91 @ 94. Furthermore, Order 19 Rules 2 and 3(2) of National Industrial Court Rules 2007 provides thus “where a case is called for hearing and the claimant appears but the defendant or respondent and/or counsel do not and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her.” Order 3(2) “ where any party to the proceeding has been duly served with the notice to appear or the party is to the satisfaction of the court aware of the adjourned date and without reasonable excuse fails to appear, the court may consider and deal with the matter before it with the absence of such party” . In the light of the foregoing I will proceed to consider the reliefs sought by the claimant in this suit. In the amended complaint and statement of facts, the claimant claims nine (9) reliefs already stated above. The onus of proof of the reliefs in such a case is naturally discharged on a minimal of proof lies on the claimant. It is trite that when an employee complains that his employment has been wrongfully dismissed, the onus is on him to place before the court, the terms and conditions of service and to prove the manner the terms and conditions were breached by the employer. It is the law that the conditions of service is the bed rock upon which the claimant must established his case, he succeeds or fails upon the terms thereof. The court will not look outside the terms stipulated or agreed in deciding the rights and obligations of the parties. The rules governing the relationship between the claimant and the defendant are his letter of employment, the Public Service Rules and the provisions of the pensions Act. The claimant is challenging his dismissal by the defendant on the ground that it was wrongful, null and void and a breach of fair hearing. He contended that his employment enjoys statutory flavour. A person who claims to be a Public Servant and seeks the protection of the Public Service Rules must show that he was employed subject to the Public Service Rules otherwise he cannot rely on it as protecting his employment. In this suit by Exhibit PW1 the claimant was offered employment as a messenger by a letter dated 21st July, 1986. His appointment was confirmed by the council with effect from 30th June, 1989 by a letter dated 30th June, 1989. He rose through the ranks to GL 09 before he was dismissed by the defendant by Exhibit PW20 dated 22nd June, 2011. It is not in dispute that the defendant, the Nigerian Export Promotion Council relied on the provisions of the Public Service Rules in dealing with the claimant. In this case the claimant’s employment is governed by his letter of employment, the Public Service Rules and the Pensions Act which brings his employment under statutory flavour. It is trite that an employer has the right to discipline any erring staff in his employment including the claimant. Rule 04306 of the Public Service Rule stipulates the procedure to be followed before the appointment of a senior public officer in the cadre of the claimant could be determined. He must be given a query, invited to a panel, shown whatever document(s) that would be used against him, witnesses that might testified against him. A Public Officer can only be validly removed from service if the proper procedure prescribed by the Rules has been followed. Furthermore, the law recognises the right of the master to sack the servant with good or bad reason(s) or without any reason at all. Where reasons are given the court has the right to examine them and the onus is on the employer to satisfactorily prove the same, otherwise the dismissal will constitute wrongful dismissal without more. In the present case, Exhibit PW20 the letter of dismissal dated 22nd June, 2011 gave various reasons for the dismissal of the claimant from the service of the defendant for misconduct on the query No. EPC/245/Vol. 2/386 dated 27th August, 2010. The letter is reproduced hereunder:- NIGERIAN EXPORT PROMOTION COUNCIL HEADQUARTERS EPC/245/Vol. 2/458 22nd June, 2011 Mr Oluwole Oyegun Trade Promotion officer I ufs: Zonal Controller, NEPC, Maiduguri Zonal Office. Maiduguri. Borno State. LETTER OF DISMISSAL I am directed to refer to the query No. EPC/245/Vol.2/286 dated 27th August, 2010 issued to you in respect of act of serious misconduct arising from Improper routing of petitions, Unlawful abstraction and copying of Official Documents,. False claims against Government Officials, Violation of Oath of Secrecy, Unauthorised removal of Public records, Unauthorised disclosure of official information, Acts unbecoming of a Public Officer contrary to Public Service Rules 090204, 030417, 030402(f) 030402(f), 030402(i) 030402(n) 030301(f), 030402(w) committed by you. 2. The Governing Board of the Council after considering the report of the Establishment Committee which reviewed the proceedings of the Senior Staff Committee on the matter, approved that you should be dismissed from the services of the council with immediate effect. 3. You are please advised to submit all the council’s property in your possession including your staff identity card to your Zonal Controller before leaving. 4. I wish you good luck in your future endeavour 5. Thank you Signed Aminu I. Koko Director, Admin and human resources For: Executive Director/CEO The query No. EPC/245/Vol.2/286 dated 27th August, 2010 the basis on which the claimant was dismissed by the defendant is also reproduced hereunder: Exhibit PW19 NIGERIAN EXPORT PROMOTION COUNCIL HEADQUARTERS EPC/245/Vol. 2/386 27th August, 2010 Mr Oluwole Oyegun TPO 1. u.f.s. The Zonal Controller, Maiduguri Zonal office, Borno State. QUERY On 6th August 2010 the Council received a letter from the National Human Rights Commission dated 11th august 2010 with reference no. C/2010/290/HQ/T in which the Commission requested the Council to respond to a petition written by you dated 14th July 2010 which you captioned “Save my soul from undue victimization, oppression and intimidation being experienced from the Management of the NEPC ..” in a bid to deny you of your promotion. 2. The Public Complaints commission and the Independent Corrupt Practices and other Related Offences commission (ICPC) had also confronted the Council with similar petitions. In all these petitions the 2010 Senior staff Promotion list was attached. 3. You will recall that in March 2009, you also wrote a petition to the ICPC in which the following five officers of the Council were invited and interrogated: (a) Ezra Yakusak (b) Mrs. P. L. Egwuche (c) Mrs. Getrude Ukanam (nee Udoh) (d) Arch. Ben I Itegbe Jnr (e) Mr. Reuben Akintese. In that petition you photocopied and attached volumes of documents support your claim, without authorisation. This prompted the ICPC to write a letter dated 23rd March 2009 with reference No.ICPC/SDD/TB2/2009 requesting for the documents you had earlier attached with your petition. 4. On 20th January 2010. You again wrote another petition to the ICPC against the Executive Director and the entire management of the NEPC in which you alleged that the Management wrongfully and unlawfully transferred you from Abuja to Maiduguri Zonal office and also denied you promotion. This prompted the ICPC to write a letter to the Council with reference No. ICPC/SDD/2010 dated 10th February 2010 where they requested for the promotion brief, list of transferred staff, staff condition of service among others. Council staff was also invited and interrogated by the ICPC on the matter. 5. On 29th July 2010, The council received yet another letter from the ICPC with reference No. ICPC/SDD/TB2/2010 dated 22nd July 2010 requesting the Director of Administration and Human Resources to appear before the ICPC on another complaint/petition lodged by you against the Council alleging that you were denied to sit for a promotion interview. In all your petitions to these organisations you refused to disclose the fact that the NEPC Governing Board had directed that your promotion be suspended until the pending disciplinary case against you is determined. 6. These petitions are not only false but spurious, misleading and capable of portraying the Council and its officers in bad light. This is unbecoming of an officer of your status and can no longer be tolerated. Moreover, you have neither formally complained to the council on any decision taken against you nor have you exhausted all internal avenues for redress as provided in the Public Service Rules 2008, if you had any grudge, misgiving or complaint against any Officer(s) or decision of the Council. 7. In the light of the above, you are requested to explain why disciplinary action should not be taken against you for acts of serious misconduct arising from: (i)Improper routing of petition -PSR- 090204 (ii)Unlawful abstraction and copying of official documents-PSR-030417 (iii)False claims against government Officials -PSR-030402(f) (iv)Unauthorised disclosure of official information -PSR-030402(i) (v)Violation of Oath of Secrecy -PSR-030402(n) (vi) Unauthorised removal of Public Records -PSR-03030(f) (vii)Acts unbecoming of a Public Officer -PSR-030402(w) 8. Your submissions which should be concise and straight to the point should be forwarded to the undersigned within 72 hours from the date of receipt of this letter. Signed Aminu I Koko Director(Admin &HR) For: Executive Director/CEO The brief facts of this case are as follows:- From the facts of this case, the claimant travail started not because he was found wanting in his job but because he purchased a three bed room bungalow at No. 84 Gudu Street, Kubwa, Abuja co – shared by one of his colleagues in the office Mr. Festus Ugwuegbu following the Federal Government sale of Government properties to civil servants. The purchase of the house by the claimant alone did not go down well with the management NEPC and Mr. Festus Ugwuegbu. The problem came up when Festus Ugwuegbu who protested came up with another letter of allocation for the purchase of the same house. The claimant reported the matter to the NEPC – Anti corruption and Transparency unit (ACTU) of the defendant for investigation after he was rebuffed by Legal Adviser Mr. Ezard whom he earlier complained to. The NEPC – Anti Corruption Transparency Unit (ACTU) of the defendant found out that Mr F. Ugwuegbu’s letter of allocation for the same property was fake and forwarded its report to Independent Corruption Practices and other offences Commission (ICPC) proper. Since this incident, series of queries connected to the purchase of house by the claimant started flying and this eventually led to the dismissal of the claimant even when the issue of the sale of the house is still a subject of litigation at the High Court of Federal capital Territory Abuja for the determination of the actual purchaser of the property. The law is that an employee against whom an allegation of serious misconduct is laid cannot be removed without being given fair hearing. The claimant was issued a query Ref. No. EPC/245/Vol. 2/386 dated 27th August, 2010, Exhibit PW20 therein series of allegations bothering on misconduct were levied against him. The claimant drew the attention of the court to Exhibit PW20 which is the query of 27th August, 2010 on which his dismissal was hinged on. The claimant urged the court to scrutinize Exhibit PW20 and see if it complies with the provisions of Rule 030307(1) of Public Service Rules which states “In serious case which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to document(s). The officer shall be called upon to state in writing within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself.” The claimant submitted further that the main complaint was that he wrote petitions to outside bodies. That he copied and attached a secret official document to the petitions. That Exhibit PW20 stated the dates and the purported bodies. To the claimant’s counsel they failed to attach the petitions to the query for the claimant to see. The counsel for the claimant submitted further that when the claimant received the query he replied by first of all requesting for the attachment he was accused to have attached to the petitions. The claimant counsel further submitted that the only document Exhibit PW20 which the defendant sought to rely on was not tendered and unsigned petition to the Human Rights Commission. To the counsel, all the bodies petitioned were Federal Government Bodies, the ICPC, HRC, and Public Complaint Commission. That under Section 102 of the Evidence Act, the documents before these bodies constitute public documents and that certified true copy could be issued to the defendant. That at the point of issuing Exhibit PW20 the defendant had the right to apply for the certified true copy which they did not. The counsel also submitted that the disciplinary hearing lasted for almost nine months in violation of Public Service Rules 030307(xii). The counsel said the query was issued in August 2008 while the dismissal letter was issued in July 2011, that under the Public Service Rule it must be within 60 days which is 2 months. Counsel relied on the case of Olufegba V Abduhareem (2009) 18 NWLR (Pt. 173) at 462 paras C – D. The issue here is where are these documents referred to by the defendant for the court to see. The issue to tackle here is whether the defendant complied with the provisions of Section 030307(1) of the Public Service Rules which require that in a serious cases which are likely to result in dismissal the officer should be given access to documents(s) or reports used against him/her where are the documents or the alleged petitions referred to or mentioned by the defendants in the query for the court to see to ascertain, the veracity of the claims of the defendant. In other words neither the claimant nor the court has access to them. The petitions were not also frontloaded as required by the Rules of this court. Where an employee is sought to be removed in a contract with statutory flavour, that is a contract of employment wherein the procedure for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by statute. Any other manner of termination which is inconsistent with the relevant statute that is Public Service Rules is null and void and of no effect. See GEIDAM V NEPA (2001) 2 NWLR (PT. 380) PG. 647. The issue here is not with the employer’s power to discipline the claimant but whether the claimant was given fair hearing. The question here also is whether the procedure for discipline as contained in the Public Service Rules was complied with in the manner of the claimant’s dismissal. Public Service Rules is the basis of the contract of service and none of the parties can deviate from it. The relevant Public Service Rules reproduced above is that the procedure for disciplinary action against an officer which is likely to lead to his, dismissal, is that procedure set out in Rule 04306 which must be followed, because of the serious nature of the penalty for the alleged misconduct. It fully accords with the principle of fair hearing. It is trite law that no documentary evidence should be used against an officer unless he has previously been supplied with a copy or given access thereto. An employee’s wrong doing must be specific and he is entitled to a formal notice of such wrong doing and a hearing on that specific Act. See Adeniji V Governing Council Yaba Tech (1993) 6 NWLR (Pt. 300) Pg. 426. An employee who is accused of misconduct is entitled to call his witnesses if he had any and they must be heard. Also an employee should know the full case against him. He should be present when witnesses are testifying against him. If this is not done it would amount to a denial of natural justice. See Nze V NPA (1997) 11 NWLR (Pt. 528) Pg. 210. The employee must be given adequate time to prepare his defence, time to prepare his papers and get witnesses. In the instant case, the claimant was dismissed on the basis of query issued on 27th of August 2008 with unclear and unspecific allegations with copies of the petitions not made available to the claimant or tendered in the court. With careful perusal of paragraph 7 of the query alleging act of serious misconduct enlisted therein. (i)Improper routing of petition -PSR- 090204: The petition that was alleged written by the claimant was not made available to him, or presented or made available to the court. (ii)Unlawful abstraction and copying of official documents-PSR-030417: This allegation was made against the claimant in the query without mentioning, stating, or made available the official documents he unlawfully abstracted and copy from. (iii)False claims against government Officials -PSR-030402(f): Similarly the alleged petition he wrote to ICPC on the 20th of January, 2010 was not made available to the claimant or made available to the court. (iv)Unauthorised disclosure of official information -PSR-030402(i): It is necessary for the court to know the official information the claimant divulged and to whom. This also not stated or made available by the defendant. (v)Violation of Oath of Secrecy -PSR-030402(n): It is also necessary to know in what way he violated the oath of secrecy, and where. (vi) Unauthorised removal of Public Records - PSR-03030(f): It is necessary for the claimant and the Court to know the public records he removed when and where. (vii)Acts unbecoming of a Public Officer- PSR-030402(w): What acts of the claimant constitute acts unbecoming of a public officer? These allegations made in the query against the claimant are not specific, explanatory enough, and copies of the petitions are not made available to assist him in proper response. It is obvious that the claimant was not given an opportunity to defend himself because he was denied of relevant documents what actually happened was a deliberate attempt by the defendant to get rid of the claimant. It is therefore correct to say that the fundamental right of fair hearing was totally breached where such a breach occurs, the court is left with no other alternative remedy than to declare the dismissal, null and void and of no effect. The claimant defended himself to the best of his ability and denied all the allegations made against him before the court of law. The claimant gave evidence and tendered documents in support of his case. The claimant has accordingly discharged the burden of proof placed on him. The burden is thus shifted to the defendant to adduce contrary evidence to controvert the case of the claimant. This is in line with the provisions of Sections 133 and 136 of the Evidence Act which recognises the shifting nature of the burden of proof. It is not in dispute that the defendant in this case has failed to lead any evidence in support of his averments in the statement of defence. So the statement of defence not having been activated by evidence is a non starter and this is deemed to have abandoned his defence. The Public Service Rules confers on Public Servant a legal status that goes beyond that of ordinary master and servant relationship. They cannot therefore be properly or legally removed from their employment without strict adherence to the Public Service Rules. See Okocha V C.S.C. Edo State (2004) 3 NWLR (Pt. 861) Pg. 494. The letter of dismissal dated 22nd June, 2011 is hereby set aside. This is a case where an order of re-instatement should be made since the employment is proved to be one with statutory flavour and the court has declared the purported dismissal as null and void. In the eye of the law the dismissal never took place and the claimant’s employment was never interrupted. In the circumstance the claimant is hereby re-instated to his post and be paid his salaries and allowances from July 2011 till date. See Adejemiwa V Ogun State College of Education (2000) All FWLR (Pt. 456) 11804. The claimant having sat and passed his promotion interview but was withheld by the counsel the letter of promotion should be released to him forthwith. It is the law that the court is entitled to look at documents in its file while writing its Judgment or Ruling depite the fact that the documents were not tendered and admitted as exhibits at the trial. The witness statement of one Mrs. Jerusha R. Kuffon that she was shocked that the claimant was paid salary on his new promotion and that someone must have tampered with the machine in the office is funny and laughable. This portrayed her as an unserious officer who must just say something to cover up her inefficiency. Claimant claims e, f, g, and h are for monies approved for his various journeys and which the defendant did not pay. The trips where made in the cause of his official duty he is therefore, entitled to the claims. It is the court orders that he should be paid the money as claimed in this suit. Finally, the claimant claim i, is for the sum of N30,000,000.00 (Thirty Million Naira) Only or any amount as damages for wrongful, malicious and invalid dismissal. The court declines to make any award because the claimant cannot be reinstated and granted damages as the same time. I therefore resolve the issues (a) (b) (c) and (e) in favour of the claimant. The remedy for unlawful dismissal of employment is re-instatement. Having held that the dismissal is wrongful, l accordingly hereby declare (i), (ii) and (iii) as follows:- That the defendant is hereby directed to reinstate the claimant to his position end be paid his salaries and allowances from July 2011 to date. The promotion of the claimant he passed and admitted was withheld by the defendant be release to him. I also order that the sum of N94,000.00 money approved for him for his trip of 22nd December, 2010, N100,800.00 money approved for the trip of 25th January, 2011 be paid to him immediately. The court declines to grant any award of N30,000,000.00 (Thirty Million Naira) Only or any amount as damages for wrongful, malicious and invalid dismissal. For the reasons given above, the claimant claims succeed in part and he should be re-instated immediately without loss of promotion, and be paid all his salaries and allowances. Judgment is entered accordingly. _________________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE