IN THE NATIONAL INDUSTRIAL COURT NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: MARCH 31, 2023
SUIT NO. NICN/ABJ/223/2021
BETWEEN
MRS. VICTORIA AYANTUGA CLAIMANT
AND
1. THE NIGERIAN SOCIAL INSURANCE TRUST
FUND MANAGEMENT BOARD
2. THE MINISTER FOR LABOUR & EMPLOYMENT DEFENDANTS
3. THE ATTORNEY GENERAL OF THE FEDERATION
REPRESENTATION
Chief O. J Onoja SAN for the Claimant, with Funmi Quadiri SAN, M.A. Ebute SAN, George Ibrahim, Yvonne Oputa, Joseph Amah Abah, Ojoma B. Paul.
Benedict Ugorji for the 1st & 2nd Defendant, with Anthony Obi Obiakor.
Olubanke Odulana (Asst. Chief State Counsel) for the 3rd Defendant.
JUDGMENT
Introduction and Reliefs
[1] The Claimant commenced this action by originating summons filed on 27th August 2021 praying for the determination of the following questions:
A. Whether upon proper construction and interpretation of Chapter 16 of the Federal Government Public Service Rules, Part II of the Nigeria Social Insurance Trust Fund Act, and Chapter Six of the Condition of Service of the Nigeria Social Insurance Trust Fund, the purported termination of the appointment of the Claimant by the 2nd Defendant is not unlawful, null and void, and of no effect.
B. Whether having regard to the provisions of chapter 16 of the Federal Government Public Service Rules, and Chapter Six of the Condition of Service of the Nigeria Social Insurance Trust Fund, and all other laws in that regard, it is not the Board of Nigeria Social Insurance Trust Fund (NSITF) that is enabled or has the power to determine, severe or terminate the appointment of the Claimant.
C. Whether the appointment of Claimant can be determined, severed or terminated other than as provided in Section Six of the Staff Handbook and whether the purported termination of same by the 2nd Defendant is not null and void.
D. Whether by relevant statutory provisions, the rules of natural justice was followed in the constitution and proceedings of the Presidential Joint Board and Audit Investigation Panel, the recommendation of which the 2nd Defendant purportedly terminated the Claimant’s appointment.
[2] Upon the determination of the questions in favour of the Claimant, she is seeking the following reliefs against the Defendants:
1. A Declaration that by the Federal Government Public Service Rules and Nigeria Social Insurance Trust Fund (NSITF) Staff Conditions of Service, it is the 1st Defendant that can terminate the appointment of the claimant.
2. A Declaration that the Claimant’s employment cannot be terminated except in accordance with Nigeria Social Insurance Trust Fund (NSITF) Staff Conditions of Service
3. A Declaration that by the provisions of the Nigeria Social Insurance Trust Fund Act, and Nigeria social Insurance Trust Fund (NSITF) Staff Conditions of Service, Claimant’s purported suspension, and subsequent termination/compulsory retirement is unlawful, illegal, null and void and of no effect whatsoever.
4. An Order setting aside the purported suspension and termination/compulsory retirement of the Claimant for being unlawful, unconstitutional, illegal, null and void.
5. A Declaration that Claimant’s employment with 1st Defendant is still subsisting and is thus is entitled to all her remuneration and entitlements from the 1st Defendant.
6. An Order reinstating the Claimant into the service of the Nigeria Social Insurance Trust Fund and to place her on the appropriate rank/grade level she would have been but for the interruption along with all the benefits, privileges and perks associated with the office.
7. An Order directing the Defendants to pay the Claimant all her remunerations, entitlements, increments, benefits, allowance and salaries from July 2020 when she was suspended until judgment is delivered in the instant suit.
8. An Order directing the Defendants to publish an unequivocal apology to the Claimant and a complete retraction of the allegation of fraud levied against her in 5 National Newspapers to wit; Guardian Newspaper, Tribune, Vanguard, Daily Post and Punch Newspaper as well as Television Broadcast to wit; the African Independent Television (AIT), Channels Television, and Nigerian Television Authority (NTA) wherewith the said allegation was broadcast in the same prominence as the allegation.
9. The sum of N20, 000,000.00 as cost of this action.
The originating summons is supported by an affidavit sworn to by the Claimant on 27th August 2021 to which is annexed 26 exhibits and a written address dated 26th August 2021.
[3] The 1st and 2nd Defendants in opposing the originating summons filed a counter affidavit on 20th May 2022 sworn to by Marybeth Obiakor, litigation secretary and a written address. The Claimant in response filed a further affidavit and a reply address on 6th July 2022. Also filed on the 25th March 2022 by the 1st and 2nd Defendants is a Notice of Preliminary Objection supported by an affidavit also sworn to by Marybeth Obiakor and a written address. In reaction the Claimant filed an amended reply address in opposition to the 1st and 2nd Defendants Preliminary Objection on 27th May 2022. The 1st and 2nd Defendants filed a further counter affidavit and a reply on 21st September 2022 which counsel withdrew at the hearing and the process was struck out.
The 3rd defendant in opposition to the originating summons filed a counter affidavit on 20th December 2021 sworn to by Onoja B, a litigation officer and a written address. The Claimant did not file any process in response.
At the hearing on 10th January 2023, Learned SAN Chief O. J Onoja informed the Court that George Ibrahim would argue the brief. The Parties at the hearing relied on the affidavits, adopted their addresses and made oral submissions.
THE CASE OF THE CLAIMANT
Facts
[4] The facts upon which the Claimant has premised the questions for determination and the reliefs she is seeking are as contained in the supporting affidavit. To state the claimant’s case concisely, the 1st Defendant offered her appointment on 6th March 2013 as a Principal Manager and her appointment was confirmed on 14th November 2014. The Claimant was promoted to the position of Assistant General Manager in the 1st Defendant with effect from January 2018. The Claimant states that in 2019, the Chairman of the 1st Defendant, Mr. Austine Isiri wrote a letter of complaint to the 2nd Defendant alleging certain infractions that she was not aware of. On 2nd July 2020, the 2nd Defendant issued some of the Board members with letters of suspension. The Claimant states that in the evening of 2nd July 2020, when watching news at 8pm on African Independent Television, she heard her name mentioned among the suspended staff of the 1st Defendant that included the Managing Director, three Executive Directors, and seven Management staff. That it became obvious to her that some mischief had occurred between the close of work at 4pm and 8pm when her name was mentioned.
[5] The Claimant asserts that she diligently performed her duties as an Auditor, uncovered fraud in several branches which earned her a special promotion on 16th September 2019 from the 1st Defendant in “recognition of your outstanding contributions towards the achievement of the mandate of the fund through the display of professionalism, hard work and dedication to duty”. That before the suspension she did not receive any query or warning, and there was no notification to her of any infraction, neither was she invited to any hearing as there was none conducted prior to the publication in the media. As she was not issued a letter of suspension, on Monday 6th July 2020 she went to work but was refused entry into the premises. On 7th July 2020 the Acting Managing Director called to inform her that he had received her letter of suspension. The letter dated 1st July 2020 stated that she was suspended from office due to “ infractions on the Financial Regulations and Procurement Act apart from other acts of gross misconduct in the fund”; and this caused her so much distress.
[6] The Claimant states that after her suspension, she received an invitation from the House of Representative “Ad-hoc Committee on Arbitrary Breach of Presidential Directives on the suspension of Top Management and Executive Committee Members of Nigeria Social Insurance Trust Fund and other Government Agencies by Ministers” requesting for her reaction to the motion to investigate the procedural breaches of the Presidential directives by both the Minister of Labour and Employment and Power. She immediately responded to the enquiries stating the facts within her knowledge. The Claimant states that the Ad-hoc Committee concluded its hearing and passed the several resolutions; one of which was that the procedure leading to the suspension of officials of the 1st Defendant in which her name was listed is in breach of the NSITF Act.
[7] The Claimant states that there was also a Presidential Joint Board and Audit Investigation Panel on Nigeria Social Insurance Trust Fund (NSITF) that sent invitations requesting written submissions. She responded in writing to all the questions put to her within her personal knowledge. The Claimant states that her employment with the 1st Defendant is not a political appointment, and that there are disciplinary procedures to be followed where she is adjudged wrong or in breach of work ethics. The Claimant asserts that the procedures provided in the NSITF Staff Condition of Service and the Public Service Rules were not followed; and that the Presidential Joint Board and Audit Investigation Panel on Nigeria Social Insurance Trust Fund to which she made written submissions as requested did not make public its findings and recommendations indicting her or otherwise till date.
[8] The Claimant states that she is not a member of the Management Board or an Executive Director of the 1st Defendant and is therefore not involved in the decision making process; and she continually pointed this fact out in her responses. She states that she is not the head of her Department; that the extant head of her Department is Mr. Zwalda Ponkap and he is still in the service of NSITF. The Claimant states that on 1st June 2021 her attention was drawn to a publication in the Punch Newspaper where her appointment with the 1st Defendant was said to have been terminated with the approval of Mr. President. That up till date she has not received any letter terminating her appointment, neither has she been paid her salaries and allowances since she was suspended. After all her pleas failed to yield any positive result, she engaged the services of Counsel.
Submissions of the Claimant
[9] The issues submitted are the legal questions the Claimant has framed in paragraph [1] above. These questions are numbered as issues (1) to (4); and for ease of reference they are again reproduced seriatim as follows:
1) Whether upon proper construction and interpretation of Chapter 16 of the Federal Government Public Service Rules, Part II of the Nigeria Social Insurance Trust Fund Act, and Chapter Six of the Condition of Service of the Nigeria Social Insurance Trust Fund, the purported termination of the appointment of the claimant by the 2nd defendant is not unlawful, null and void, and of no effect.
2) Whether having regard to the provisions of Chapter 16 of the Federal Government Public Service Rules, and Chapter Six of the Condition of Service of the Nigeria Social Insurance Trust Fund, and all other laws in that regard, it is not the Board of Nigeria Social Insurance Trust Fund (NSITF) that is enabled or has the power to determine, severe or terminate the appointment of the Claimant.
3) Whether the appointment of Claimant can be determined, severed or terminated other than as provided in section Six of the Staff Handbook and whether the purported termination of same by the 2nd Defendant is not null and void.
4) Whether by the relevant statutory provisions, the rule of natural justice was followed in the constitution and proceedings of the Presidential Joint Board and Audit Investigation Panel, the recommendation of which the 2nd Defendant purportedly terminated the Claimant’s appointment.
[8] Learned Counsel argued the 4 issues together. He submitted that in the interpretation or construction of documents, the proper procedure to adopt is the originating summons citing Olley v. Tunji (2013)10 NWLR (1362)275 at 313-314. He stated that the facts are predicated upon the construction or interpretation of Exhibits V, V1, V2, V3, V23, V24 & V25 which are documents forming part of the contract of employment of the claimant with the 1st Defendant and other documents relating to the suspension and termination of the Claimant’s employment. That the thrust of the Claimant’s case is that her employment with the 1st Defendant as Assistant General Manager was summarily determined by a press release by the Deputy Director/Head (Press and Public Relations) of the Ministry of Labour and Employment on behalf of the 2nd Defendant on 31st May, 2021.
[9] Learned Counsel submitted that the instruments setting out the rules and regulations of the 1st Defendant are the Nigeria Social Insurance Trust Fund Act (NSITF Act) 2004, the Nigeria Social Insurance Trust Fund (NSITF) Staff Conditions of Service (Handbook), and the Federal Government Public Service Rules (PSR). He submitted that the 1st Defendant is a Parastatal established under Part 1, Section 2 of the NSITF Act 1992 with wide powers to appoint, determine terms and conditions as it relates to remuneration, allowances, pension, promotion, and to exercise disciplinary powers over its employees. He further submitted that the 1st Defendant exercised this power when it issued the Staff Handbook providing the disciplinary procedures for all cadre of employees; and that the Public Service Rules equally gives the Parastatal Board powers to operate according to the instrument establishing it.
[10] Learned Counsel submitted that by the provisions of the NSITF Act, particularly under Part II, Section 9 (4) and (5), the 1st Defendant is saddled with the responsibility to determine the terms and conditions of service of persons employed by the Board and also the control of the employees including disciplinary control. He further submitted that under Chapters Five and Six of the Staff Handbook, the power to suspend and terminate the appointment of a confirmed staff such as the Claimant is vested in the 1st Defendant. He submitted that the power to suspend staff vests in the Board and it follows that only the Board can suspend a staff for any reason whatsoever. That Rule 06.01 of Chapter Six gives the 1st Defendant the power to exercise disciplinary control over its staff and these powers may be delegated only to the Managing Director of the NSITF who may delegate same to any Head of Department. He further submitted that Rule 160501 Chapter 16 of the Public Service Rules (PSR) vests the power to exercise disciplinary control over officers in Parastatals in the 1st Defendant in accordance with their respective conditions of service.
[11] Learned Counsel submitted that one of the cardinal rules of interpretation of statutes is that where words are clear, plain and unambiguous, they are to be given their ordinary and natural meaning citing Oteri Holdings Ltd v. Heritage Bank Co. Ltd (2020) LPELR-50802 (CA) 38 Paras B; AfriBank Nig. Plc & Ors v. Emori (2013) LPELR-21137 (CA ) 23-26 Paras F. He submitted that a combined reading of the provisions of the NSITF Act, the Staff Handbook, and the Public Service Rules shows that the powers to exercise disciplinary control over the Claimant is vested in the 1st Defendant and no other person. That all through the provisions of the instruments guiding and regulating the employment of the Claimant, there is no mention of 2nd Defendant exercising the powers of disciplinary control. That in spite of this, the 2nd Defendant issued Exhibit V6 through the Permanent Secretary of the Ministry of Labour and Employment purporting to suspend the Claimant on the approval and directive of Mr. President. Again, on the 31st of May 2021, the 2nd Defendant announced on the pages of the newspaper, that the Claimant along with other Management Staff and Executive staff have been relieved of their appointment on the approval and directive of Mr. President.
[12] Learned Counsel submitted that the 2nd Defendant who is not seized with powers of disciplinary control over the Claimant can not exercise same. It was his submission that when a statute confers a power on the holder of an office, it is a public power; and unless the contrary intention appears from or in the statute, the power may be exercised only by the holder of the office, and by his successor-in-office or the holder of the office for the time being. He argued that the 2nd defendant cannot exercise disciplinary powers in flagrant disregard of the Part II, Section 5 of the NSITF Act, Chapter Six of the Staff Handbook and Chapter 16 Rule 160501 of the PSR as he has done because he is not the holder of the office which has the statutory powers to so exercise disciplinary control over the Claimant. That it is only the 1st Defendant through the Managing Director that can exercise such powers, citing Obayuwana v. Gov Bendel State & Anor (1982) LPELR-2160 (SC) Pp. 25-26 paras D; and A-G Ogun State v. A-G Federation (1982) LPELR-11 (SC) Pp.65 paras C.
[13] Learned Counsel submitted that the 2nd Defendant as the Minister for Labour and Employment has, in the affairs of the 1st Defendant a singular role to exercise control at policy level, and through the 1st Defendant only referring to Rules 160201, section 2, Chapter 16 of Public Service Rules 2008. He contended that the 2nd Defendant usurped the powers of the 1st Defendant bestowed upon it by the Statute establishing it and has purportedly exercised same. That more worrisome is the fact that even the Public Service Rules acknowledges the autonomy of the 1st Defendant as a Parastatal in Rule 160101, Section 1, Chapter 16 where it states:“A Parastatal is a government-owned organization established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directives of the Government.” He submitted that the exercise by the 2nd Defendant of the powers vested in the Board renders the purported suspension and termination of the Claimant’s appointment vide the television and print media unlawful, illegal, null and void and of no consequence whatsoever.
[14] Learned Counsel submitted that this is predicated upon the law and the fact that the Claimant’s employment with the 1st Defendant is statutorily flavoured and is not a mere master/servant relationship where the master can hire and fire at will. He submitted that the law is settled that where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant citing Imoloame v WAEC (1992) LPELR-1500 (SC )Pp.18 paras D, PHCN v. Ofoello (2012) LPELR-19717(SC) Pp.41-42 Paras B, Gov Ekiti State v. Ogunleye & Ors (2013) LPELR-21844(CA) Pp.61-62 Paras E. He submitted that the 1st Defendant who is the Claimant’s employer is a creation of statute and its staff handbook encapsulating the conditions of service are made pursuant to the statute creating it. That Rule 160201 of the Public Service Rules allows the 1st Defendant to set operational and administrative policies relating to appointment, promotion and discipline of staff.
[15] Learned Counsel submitted that the Claimant’s contract of employment being one with statutory flavor, the 1st Defendant must in matters of disciplinary control fully comply with all the laid down regulations, the terms and conditions of service must be fully complied with citing Governor Ekiti State & Anor v. Oni & Ors (2013) LPELR-20472 (CA) Pp.32-33. He stated that the procedure laid down in Chapter Six of the Staff Handbook is that where a case of misconduct is alleged, duly investigated and dismissal contemplated, then the staff shall be suspended. He argued that the literal interpretation of the above provision of Chapter Six of the 1st Defendant’s Staff Handbook is that it is only after an alleged infraction or misconduct has been duly investigated by the Board that a staff is suspended. He submitted that the active word in the provision is ‘duly’; and that in Black’s law dictionary the term duly means “in accordance to what is required”, following proper procedure or arrangement”.
[16] Learned Counsel submitted that the proper procedure as laid down in Chapter Six, titled Misconduct is as follows:
When it appears that the nature of offence is such that the subordinate deserve stronger punishment than formal warning, but is not serious enough to warrant dismissal, the matter shall be investigated and the subordinate shall be informed of the whole case against him so that he has an adequate opportunity of defending himself…
Again under Chapter Six, it is provided thus for offences that warrant dismissal:
if the nature of the alleged misconduct is such that warrants dismissal, the following procedure shall be followed: (a) the employee shall be notified in writing of the ground upon which it is intended to dismiss him; and shall be given full opportunity of exculpate (sic) himself. (b) the matter shall be investigated by the level of management employed in the delegation of the Board’s power. (c) if any witness is called to give evidence the employee shall be entitled to be present and to put questions to the witness. (d) No documentary evidence shall be used against the employee unless he has previously been supplied with a copy thereof or given access thereto. (e) in lieu of dismissal, the Board may at its discretion impose so lesser penalty such as reduction in rank, stoppage of increment or reprimand…
[17] Learned Counsel submitted that the Defendants did not follow the procedures in the suspension and termination of the Claimant’s statutorily flavoured employment. He submitted that the effect of noncompliance with the procedures laid down in the regulations and conditions of service is that any decision arrived at affecting the tenure of office or right of an employee whose employment is statutorily flavoured will be declared null and void. He further submitted that under Chapter Six, Paragraph 06.01 (b) “An officer or employee is to be informed of the offence for which his appointment is being terminated and opportunity given to defend himself”. That an employment contract is determined by a termination or dismissal letter issued to the employee and that such employment only comes to an end upon delivery of such letter and failure to so issue a termination/ dismissal letter portends that the employment is still subsisting citing Ukoha & Anor v. Osilama (2016) LPELR-429336 (CA) Pp.26-30 Paras E.
[18] Learned Counsel submitted that the Claimant not being a political appointee does not hold her appointment at the pleasure of Mr. President or the Hon. Minister of Labour and Employment and thus, she cannot be summarily terminated or compulsorily retired from her employment with the 1st Defendant. He submitted that the law requires that where the employer gives a reason for the termination of the employee’s employment, the employer has a duty to prove the reason citing SPDC LTD v. Olarewaju (2008) 18 NWLR (Pt.1118) 1; (2008) LPELR-3046(SC )Pp.19-20 Paras D. He stated that the Claimant was suspended for “infractions on the Financial Regulations and Procurement Act apart from other acts of gross misconduct in the fund”; and again when the termination of her employment was announced, it was stated that it was due to “financial infractions of the Public Procurement Act, 2007 and the Financial Regulations as well as serious malfeasance”.
[19] Learned Counsel submitted that it is required of an employer where an allegation has been made against an employee for an investigation panel to be set up. After its investigation and a prima facie case is made against the employee, the employer notifies the employee of the findings of the Panel and gives the employee the opportunity to exculpate herself before proceeding to use those findings citing Baba v. Nigerian Aviation Authority & Anor (1991) LPELR-692(SC) Pp.23-24 Paras D-D. He stated that the Claimant was suspended even before an investigating panel was set up, and that there was no preliminary investigation before the suspension letter was issued by the 2nd Defendant who lacks the power so to issue, in the first instance. And that even after the investigating panel concluded its findings, the Claimant was not notified and afforded the opportunity to answer to the specific charge(s) against her.
[20] Learned Counsel submitted that this fell foul of the constitutional provision on natural justice expressed in the latin maxims: audi alteram partem (let the other side be heard), and nemo judex in causa sua (no man should be a judge in his own cause) which must be strictly adhered to relying on Section 36 (1) of 1999 Constitution and Okwuego v. Okemili & Anor (2013) LPELR-22024(CA) Pp.31-32 Paras F. He submitted that these rules are the minimal requirement expected of any judicial, quasi-judicial and administrative bodies in discharging or determining issues or decisions that affect the rights of individuals citing Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors(2009) LPELR-2596 (SC)Pp.62-64 Paras E, Bisong v. UNICAL (2016) LPELR-41246(CA) Pp.31-32 Paras B. He argued that the Investigating Panel had no power to sit to determine the rights and obligations of the Claimant as it purportedly did having not accorded the Claimant the opportunity to refute, deny, contradict and exculpate herself. He submitted that the purported termination of the Claimant’s employment on the recommendation of the Investigating Panel is unequivocally unlawful, null and void for breach of the rules of natural justice.
[21] Learned Counsel submitted that it is the law that where a statute lays down a procedure for doing a thing, there should be no other method of doing it citing Nwankwo & Ors v. Yar’Adua & Ors (2011) LPELR-19739(CA) Pp.64 Paras C. He argued that the Presidential Joint Board and Audit Investigation Panel is merely an investigating body and cannot determine the rights or obligations of the Claimant. It was his submission that the implementation of the recommendations was not carried out by the statutory body empowered to do so and the entire process culminating the eventual termination is a farce, charade and travesty of justice. He relied on FUT, Yola v. Maiwuya & Ors (2010) LPELR-9001 (CA) Pp. 16-17 Paras E where the court held that:
The law is that a public officer against whom such allegation of serious misconduct is laid, cannot be removed without being heard. In the instant case, there was an investigative panel set up to investigate the 12th June 1996 incident in the University. This Panel was purely investigative. It is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee...
He then urged the Court to answer all the questions nominated for determination in the originating summons in the positive.
THE CASE OF THE 1ST & 2nd DEFENDANT
NOTICE OF PRELIMINARY OBJECTION
[22] The 1st & 2nd Defendants in opposition to the suit filed a Notice of Preliminary Objection supported by an affidavit sworn to by Marybeth Obiakor. The Objection is brought pursuant to Section 6 (6) and Section 254C (1) (D) of the 1999 Constitution as amended, Order 3 Rule 2 (1) and Order 17 of the 2017 Rules of this Court praying for the following reliefs:
1. An Order striking out the case of the Claimant on ground that the court lacks jurisdiction to entertain same as presently constituted or formulated on account that the cause of action has become stale and statute barred, same having not been brought within three (3) months next the accrual of the cause of action, pursuant to section 2 (a) of the Public Officers Protection Act.
2. An Order striking out the case of the Claimant in its entirety for lack of jurisdiction and failure to disclose any cognizable cause of action litigious before the National Industrial Court of Nigeria.
OR IN THE ALTERNATIVE:
3. An Order striking out the originating summons filed by the Claimant on the 27th of August 2021 for being an improper mode of commencing this action.
[23] The grounds upon which the Application is brought is set out as follows:
1. That the Claimant’s action as presently constituted and/or formulated is statute barred by virtue of Section 2 (a) of the Public Officers Protection Act.
2. That the cause of action in this matter accrued to the Claimant sometime on the 1st of July, 2020 but the Claimant did not file the present action not until the 27th of August, 2021, more than Ten (10) months after the occurrence of the cause of action.
3. That no reasonable cause of action against the Defendants in this suit has been disclosed by the Claimant’s action as presently formulated.
4. That the directive of the President of the Federal Republic of Nigeria on 1st July, 2020 is a directive made as an administrative or management or exercise of powers of control of the Federal Government over the 1st Defendant.
5. That there are serious disputes as to facts and the originating process deployed by the Claimant will not allow all facts and proper evaluation of documents and exhibits by this court.
6. That the facts in issue and the controversy leading to this action cannot be properly dealt with by way of an originating summons.
7. That this court’s jurisdiction is yet to be properly invoked to entertain this matter.
8. That this court completely and totally lack jurisdiction as its jurisdictional vires have not been properly activated by the Claimant.
9. That it is in the overall interest of justice to strike out the substantive case of the Claimant or to set aside the originating process in this case for lack of proper jurisdiction of this court.
Submissions
[24] Learned Counsel formulated the following issue for determination:
Whether from the facts of the case made out by the Claimant in the supporting affidavit and exhibits annexed to the application, whether the case of the Claimant is not statute barred pursuant to Section 2 (a) of the Public Officers Protection Act and whether the mode of commencement of this case vide Originating Summons is proper?
He submitted that jurisdiction of a Court has been held to be the fundamental life wire of adjudication as the absence of jurisdiction renders the best of judicial effort a nullity citing Okeke v Securities And Exchange Commission & Ors. (2013) LPELR-20355 (CA), U.T.I.H v. Onoyivwe (1991) 1 NWLR (Pt.166) 166. He further submitted that jurisdiction can be raised at any time in the adjudication process as it touches on the competence of the Court to adjudicate over a dispute citing Gbadamosi v. NRC (2006) LPELR-11668 (CA), Emerald Engineering Services Limited & Anor v. Intercontinental Bank Plc. (2010) LPELR-19782 (CA).
[25] Learned Counsel submitted that this matter as constituted is incompetent as the Claimant brought same outside the statutory three (3) months period allowed by the law for cases of this nature. He submitted that the action against the Defendants is statute barred by virtue of the provision of Section 2(a) of the Public Officers Protection Act and as such the Court has no jurisdiction to entertain the action. He cited Madukolu v. Nkemdilim (1962) All NLR (Part 2) 581 at 589-590 and submitted that that the Claimant’s action as presently formulated did not meet one of the conditions precedent stipulated by the Supreme Court; specifically that the Claimant’s action is statute barred by virtue of Section 2(a) of the Public Officers Protection Act Laws of the Federation of Nigeria 2004.
[26] Learned Counsel defined cause of action as the entire set of circumstances giving rise to an enforceable claim and consists of the wrongful act of the Defendant which gives the Claimant his cause of complaint, and the consequent damage citing Sulgrave Holding Inc. v. FGN (2012) 17 NWLR (Pt.1329) 309 at 333-334, Paras. H-B; Oduntan v. Akibu (2000) 7 SC (Pt I) 106, Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) Page 261. He argued that the crux of the Claimant’s claim against the Defendants is her suspension and ultimate dismissal by the President of the Federal Republic of Nigeria. That the cause of action accrued between July to October 2020 and this action was commenced on the 27th of August 2021, about ten (10) months after the cause of action had arisen; and outside the period of 3 months prescribed by Section 2(a) of the Public Officers Protection Act. It was his submission that the cause of action in this matter having not been ventilated within three months, the right of action is extinguished or caught by statute of limitation and is no longer enforceable against any Public Officer(s) including the Defendants.
[27] Learned Counsel submitted that the category of persons protected by the Public Officers Protection Act is both artificial and natural persons and that the Defendants are protected by the Public Officers Protection Act; he cited Sulgrave Holding Inc. v. FGN supra, Aliyu IBrahim v. Judicial Service Committee. He further submitted that the Claimant having failed to institute this action within three months next of the occurrence of the cause of action, her right of action is statute barred citing A-G River State v. AG Bayelsa State (2013) 3 NWLR (Pt 1340) 123 at page 144 paras E-G. He then urged the Court to strike out the case of the Claimant for want of jurisdiction.
[28] Learned Counsel submitted that the common way to institute an action is by complaint as provided under Order 3 Rule 2 (1). That a combined reading of Sections 254C (1) (D) of the 1999 Constitution and Order 3 Rule 2 (1) is to the effect that it is a complaint that is to be used to commence an action before this Court where the matter is related to industrial or labour matter and there is dispute as to facts. That the only time an originating summons may be used is when the matter is principally on interpretation of an enactment, agreement or contract and same touches on labour and industrial relation. He submitted that there is no way the Claimant can assume that there is no dispute as to fact in a matter such as this that is an employment issue. He submitted that originating summons is used for non-contentions actions where facts are not likely to be in dispute. He cited Director Of SSS v. Agbakoba (1999) 3 NWLR (Pt 595) 425, Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, and then urged the Court to strike out the originating summons for not being the appropriate mode of commencing this action.
Claimant’s Submissions in Opposition
[29] Learned Counsel in response to the Preliminary Objection submitted 3 issues for determination as follows:
a. Whether the case of the Claimant is statute barred.
b. Whether 1st and 2nd Defendants enjoy the protection of the Public Officers Protection Act having regard to the circumstances of this case.
c. Whether the mode of commencement of the instant suit before this Honourable Court by originating summons is proper.
[30] Learned Counsel argued issues 1 and 2 argued together and stated that it is not in doubt that the Claimant’s cause of action arose on 1st June 2021 when the termination of her employment with the 1st Defendant NISTF was published; and that it is also a fact that the Claimant’s suit was filed on the 27th August 2021. He submitted that the overwhelming implication is that the suit was filed within the lawful stipulated 3 months duration and is not in any way statue barred as claimed by the 1st and 2nd Defendants. He stated that ground 2 of the Preliminary Objection where the 1st and 2nd Defendants contend that the cause of action arose on 1st July 2020 contradicts Exhibit A annexed to their Notice of Preliminary Objection, a newspaper published on Tuesday 1st June 2021. It was his submission that this is a calculated attempt by the 1st and 2nd Defendants to confuse and mislead the Court.
[31] Learned Counsel submitted that the disciplinary procedures laid down in the Nigeria Social Insurance Trust Fund (NSITF) Staff Conditions of Service, particularly chapter 6 and the Public Service Rules, Chapter 16 was not followed before the termination and compulsory retirement of the Claimant by the 2nd Defendant. That Rule 06.11 of the Hand Book stipulates procedures to be observed in alleged offences of misconduct of a staff that warrants dismissal. He submitted that these laid down procedures were tactically avoided which goes to the breach of these laws or rules. That it is the law that a public officer cannot be availed the protection of the Public Officers Protection Act if the act complained of is unlawful and illegal; and the public officer acts outside the scope of his or her authority citing Kwara State Pilgrims Welfare Board, Board v. Alh. Jimoh Baba (2018) LPELR 439, Hassan v. Aliyu (2010) 17NWLP (pt.1223) 5-91 paras B-D, N.I.C. v. Aminu (2012)8 NWLR (Pt 1302) 33 at 355, Paras C-D. He urged the Court to hold that this suit is competent as the Defendants do not enjoy the coverage of the Public Officers Protection Act. He cited Kwara State Pilgrims Welfare Board, Board v. Alh. Jimoh Baba (2018) LPELR 439.
[32] Learned Counsel further submitted without conceding that assuming the 1st and 2nd Defendants can be accorded the protection of the Public Officers Protection Act, the cause of action arose on 1st June 2021 when the Claimant’s employment was terminated and that the cause of action is fortified by the fact that the injury done to the Claimant is a continuous one as the Claimant stated in her affidavit in support of the originating summons that since her unlawful suspension in July 2020 the 1st Defendant immediately stopped payment of her salaries and emoluments. That it is the claim of the Claimant that the Defendants be compelled to pay her salaries and other entitlement from the 1st of July 2020 until the determination of this suit. The willful refusal by the 1st and 2nd Defendants to pay her salaries and entitlement amounts to inflicting continuous injury and damage to the Claimant. That in this circumstance the Public Officers protection Act does not apply. He cited NIMASA v. Hensmor (Nig) Ltd (2015) 5 NWLR (Pt.1452) 308 para F-H
[33] Learned Counsel further submitted that all issues relating to discipline, dismissal, suspension and termination of an employee of the Nigerian Insurance Social Trust Fund is regulated by the NISTF Hand book which confers the responsibility to sack, dismiss, suspend and discipline an employee on the Board Executives. He argued that the Claimant’s letter of suspension signed by the 2nd Defendant is unlawful and the termination of the Claimant’s employment is ultra vires and unlawful. Therefore, the 1st and 2nd Defendants are precluded form enjoying the protection of Public Officers Protection Act. He submitted that it is trite law that the express mention of one thing precludes the operation of another. That in this instance, the conditions of service Hand Book expressly mentioned who is saddled with the responsibility to discipline and the process to be adopted which forbids the 2nd Defendant into the arena of conflict with an employee. That if the law contemplated otherwise, it would have been expressly provided for. He cited Ogahon v. FRN (2003) 16 NWLR (Pt 845) 89, Mohammed Abacha v. FRN (2006) 4 NWLR (Pt 970) 239 at 309 – 310.
[34] Learned Counsel on issue 3 submitted that the originating summons mode of commencement of an action is used to determine issues of construction of a deed, will or other written documents and instruments, for the purpose of interpreting a statute and is an effective mode of commencement where the facts are not in issue, and where the Claimant is seeking a declaration of his or her rights. He submitted that the best mode suitable for the commencement of this suit is originating summons since there are no factual disputes. He cited Titilayo Plastic Industries Ltd. In (Receivership) and 22nd Ors v. Chief Joshua Abesi Fagbola (2019) NWLR (Pt 1691) 1-196, Inakoju v. Adeleke (2007) NWLR (Pt 1025) 423. citing Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 at 191, Govt. of Kano State v. EFCC (2018) 9 NWLR (Pt. 1625) 443 at 461 Para H.
[35] Learned Counsel stated that even though the 1st and 2nd Defendants abandoned their ground of objection on lack of reasonable cause of action against them, it is the Claimant’s intention to submit on it in other to disabuse their minds completely of such an erroneous point. He submitted that the Claimant’s originating summons discloses a reasonable cause of action against the Defendants. He stated that the Claimant is a direct employee of the 1st Defendant and her salaries and entitlements emanates from the 1st Defendant’s pay roll. The Claimant’s employment is governed and covered by the Nigeria Insurance Social Trust Fund Act, and the Nigeria Insurance Social Trust Fund Staff conditions of Service Hand Book. The alleged offence that birthed the termination and compulsory retirement of the Claimant originated from the 1st Defendant who is under the supervision of the 2nd Defendant who is a representative of the Federal Government that acted by the recommendation of the 2nd Defendant. He submitted that the 2nd Defendant cannot exonerate himself given that the letter of suspension issued to the Claimant was signed by the Permanent Secretary of the Ministry of Labour and Employment on his behalf.
[36] Learned Counsel submitted that the 1st and 2nd Defendants who are the employers of the Claimant and indeed the 3rd Defendant who is the Chief Law Officer of the Federation are not just necessary parties to this suit but will be bound ultimately by the judgment of the court. It is without contention that joinder of a party to an action is for such party to be bound by the judgment or order in the suit citing Peenok Investment Ltd v. Hotel Presidential Ltd (1982) 12 SC (reprint) 1 at 41 – 42, UBA vs. ACB (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 232 at 270-271, Ebongo vs. Uwemedimo (1995) 8 NWLR (Pt. 411) 22 at 49, A-G Federation vs. A-G Abia State (2001) 11 NWLR (Pt. 725) 689 at 737-738, para G-A. He then urged the Court to hold that it has enormous jurisdiction over this case and dismiss the preliminary objection for lacking in merit and resolve the questions and issues formulated for determination in the originating summons on the merits.
1st & 2nd Defendants Submissions in Opposition to the Originating Summons
[37] Learned Counsel to the 1st and 2nd Defendants submitted one issue for determination as follows:
If a comprehensive evaluation of the totality of evidence in this case is put in contrast with the procedure set down in the staff conditions of service of the Nigeria Social Insurance Trust Fund (1994) whether it can be said that the due process of law was complied with in the determination of the Claimant’s employment, and if the answer is in the affirmative, whether the Claimant is entitled to the reliefs sought from the court.
[38] He began by drawing the attention of the Court to Paragraphs 3.7 and 3.11 of the Claimant’s written address and stated that the Claimant’s counsel, in arguing did violence to the provisions contained in the Staff Handbook as counsel quoted the provisions of Chapter Five and Chapter Six of the Handbook discordantly by either leaving out some portions of the provisions or not quoting the provisions correctly. He then urged the Court to discountenance the arguments of the Claimant’s Counsel contained at Paragraphs 3.7 and 3. 11.
[39] Learned Counsel submitted that it is settled law that when construing the provisions of a statute all the sections and provisions should be construed together citing Obayuwawa v. Governor (1982), 12 SC 147 At 211, Obi v. INEC (2007) 11 NWLR PT 1046 560 t 664 B-D; Bronik Motors v. Wema Bank 1983 1 SCNLR 296 at 342, Senator Abraham Adesanya v. The Federal Republic Of Nigeria & Anor (1981) JSC 112 at 137. He referred to Paragraphs 52 - 54 of the Claimant’s affidavit and submitted that the Claimant was aware that the Presidential Joint Board and Audit Investigation Panel on Nigeria Social Insurance Trust Fund was a disciplinary panel set up by the NSITF Board and that having admitted that she was invited and she made submissions, she cannot contend that she was denied of her right to fair hearing.
[40] Learned Counsel submitted that the 9 reliefs sought by the Claimant in this suit cannot be granted because she failed to present credible and cogent facts, and evidence which ought to form the basis upon which the Court will make favourable pronouncements in her favour citing Hamza v. Kure (2010) LPELR – 1351, B.A.I CO. Ltd v Landmark University (2020) 15 NWLR (Pt 1748) 491, Adekunle v. Aremu (1998) 1 NWLR (Pt 533) 226 Para D-E. He submitted that the relationship between the 1st Defendant and the Claimant is governed by the Claimant’s employment letter and the Defendant’s Employee Handbook relying on Anaja v. U.B.A PLC (2011) 15 NWLR (Pt 1270) 392 Para H-B. He stated that by the nature of the Claimant’s employment, a laid down special procedure is to be followed in the event that the employment of the Claimant is to be terminated and that the terms of a contract are always held sacred by the Court. He cited Abayomi v. SAAP-Tech (Nig.) Ltd (2020) 1 NWLR (Pt 1706), 493 Para B-C, Idonniboye Obu v. NNPC (2003) 4 MJSC 131 at 168, Odutola & Anor v. Papersack Nigeria Limited (2006) All NLR (Part 2) 248 Para J-B
[41] Learned Counsel submitted that when a staff of the 1st Defendant is to be punished or disciplined, resort is to the 1st Defendant’s Staff Handbook for the procedure to be followed. He referred to the provisions of Chapter Six Rule 06.01 of the 1st Defendant’s Staff Handbook on when a disciplinary panel would be constituted which states “Disciplinary proceedings in accordance within this chapter are initiated because of an employee or officer’s misconduct or general inefficiency”. He submitted that the implication is that it is only when a staff is alleged to have committed either misconduct or such staff is alleged to be inefficient in the discharge of his/her duties that Rule 06.01 of the 1st Defendant Staff Handbook can be invoked. He also referred to Rule 06.02 and submitted that the powers to discipline can and may be delegated by the Board to either the Managing Director of the Fund or to a Committee. That in this instant case, the 1st Defendant delegated its powers to the Presidential Joint Board and Audit Investigation Panel on Nigeria Social Insurance Trust Fund as an appropriate committee as provided under the 1st Defendant Rules. He urged the Court to so hold, given that the Panel granted fair hearing to the Claimant.
[42] Learned Counsel submitted that the Claimant missed the point and erroneously argued at paragraphs 3.8 to 3.15 as well as citing inapplicable cases that it was the 2nd Defendant that exercised disciplinary powers over the Claimant, whereas it is not so. He submitted that the arguments are misconceived and should be discountenanced. That it is more sensible for the powers of the Board not to be delegated to the Managing Director at the time but to a Committee given that the Managing Director was at the time, embattled and also fingered in the alleged graft. He further submitted that the 1st Defendant was right and in order to have dismissed the Claimant in the manner that it did because being a pensionable staff, she is not entitled to any form of notice, so long as the termination of her employment was on ground of outright dismissal, where she is found to have committed a serious misconduct, such as corruption or graft.
[43] Learned Counsel referred to Rules 05.02 of the 1st Defendant’s Staff Handbook and submitted that the Board is required to give a month’s notice or salary in lieu to a confirmed pensionable staff, when it wants to severe the contractual relationship provided the grounds or reason for the termination is not on grounds of dismissal. That by Rule 06.14 any officer who is dismissed shall forfeit all rights under the Fund and that acts which can result in dismissal are listed at Rules 06.03 as corruption, dishonesty, fraud, theft, bribery, forgery, falsification of accounts etc. He submitted that where the actions of a staff are such that could lead to dismissal the staff loses all rights, except the right of fair hearing to respond to any allegation. He stated that Rule 06. 13 provides that: ‘‘suspension is the precluding of staff from the exercise of the functions of this office and may be accompanied by total loss of pay’’. He argued that due process of law was followed in the constitution of the Presidential Joint Board and Audit Investigation Panel to hear the allegations of misconduct against the Claimant.
[44] Learned Counsel referred to Co-Operative Development Bank v. Essien (2001) 4 NWLR (PT. 704) 497, and UBN v. Ogboh (1995) 2 NWLR (Pt. 380) 647 for the meaning of gross misconduct: “a conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer.” He argued that upon the allegation of fraud, all the 1st Defendant was required to do was to mandate its Managing Director to give the Claimant a fair hearing or set up an appropriate committee which was what the 1st Defendant did when the Presidential Joint Board and Audit Investigation Panel was set up before which the Claimant submitted written submissions as responses to allegations she was confronted with. It was his contention that the Presidential Joint Board and Audit Investigation Panel found the Claimant’s responses unsatisfactory. That the Claimant cannot allege that she was not given a fair hearing before her employment was terminated; neither can she contend that the due process of law was not followed in the determination of her employment. He cited Umoh v. I.T.G.C (2001) 4 NWLR (Pt. 703) 281, Imonikhe v. Unity Bank Plc. (2011) 12 NWLR (Pt. 1262) 624 at 629.
[45] Learned Counsel submitted that the procedure for disciplinary proceedings in the Nigeria Social Insurance Trust Fund Staff Conditions of Service were duly followed. He argued that the 1st Defendant delegated its responsibility of investigating the misconduct raised against the Claimant to a Committee/Panel in conformity with its statutory powers as provided in its enabling law. He argued that it is a non-issue that the letter of dismissal was not served on the Claimant because Exhibit 10A and 10B shows that the letter of dismissal was served on her; and that Exhibit NSITF 8, is the Board Resolution of the 1st Defendant, ratifying the dismissal of the Claimant upon the recommendation of the Committee.
[46] On the order for costs, he submitted that it has been held by superior courts that it is unethical and wrong for a party to pass on the cost of paying his Solicitors to his opponents as such offends public policy citing Nwaji v Coastal Services Ltd (2004) 36 WRN 1 at 14-15, Doyin Motors Ltd v. SPDC (NIG.) Ltd & Ors (2018) LPELR-44108 (CA); Julius Berger (Nig.) Plc v. IGP & ORS. (2018) LPELR- 46127 (CA); S.P.D.C.N. Ltd v. Okeh 2018 17 NWLR Pt. 1649. He submitted that relief (9) is unethical and unknown to Nigerian legal jurisprudence; and then urged the Court to dismiss the entire case of the Claimant for lacking in merit and for failure to prove the reliefs sought.
Claimants Reply Address
[47] Learned Counsel began with preliminary issues. He submitted that the 53 paragraph counter affidavit deposed to by one Marybeth Obiakor, a Litigation Secretary in the law firm of Osita Ozunaso & Co who from the nature of her depositions supplied information not within her knowledge being a non-staff of the 1st Defendant and equally failed to disclose her source of information is in violation of Section 115 of the Evidence Act. He submitted that it is the law that where a deponent to an affidavit deposes to information not within his/her personal knowledge, the source of information must be disclosed. He stated that it is clear from the affidavit that the deponent couldn’t have possibly had knowledge of the information supplied regarding the internal affairs of the 1st and 2nd Defendants without being supplied by a staff of the 1st and 2nd Defendant who had personal knowledge of the issues raised some being as grave as internal memoranda supplied and attached to the said Counter-Affidavit. He submitted that the counter affidavit offends the provisions of Section 115 (1), (3) and (4) of the Evidence Act, 2011; and that the sum effect is that the entire counter-affidavit is faulty and cannot be relied upon citing Shema v. Masari & Ors (2011) LPELR-9181(CA), Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270. He argued that the entire counter-affidavit ought to be struck out; and that the effect is that the 1st and 2nd Defendants have no defence to the suit.
[48] Learned Counsel in reaction to the address of 1st and 2nd Defendants adopted the four issues nominated for determination in the originating summons in answer. He submitted that the power of the Management Board of the 1st Defendant NSITF to dismiss or exercise disciplinary control over staff can only be delegated by the Management Board to the Managing Director who in turn can delegate same to any Head of Department. He further submitted that the law made provision that the Managing Director may delegate some of the powers given to him by the Management Board of NSITF to any of the heads of department or to an appropriate committee; and that the “appropriate committee” must be a committee within the 1st Defendant and not a Presidential Joint Panel. He submitted that in interpretation of statutes, it is incumbent on the Courts to accord them their natural grammatical meaning citing Int’l Standard Securites Ltd v. UNILEVER (Nig) Plc. (2009) LPELR- 8779 (CA)
[49] Learned Counsel further submitted that by the provision of the Handbook, the person that can delegate to such a committee is the Managing Director and not the NSITF Board. That the NSITF Board can only delegate to the Managing Director alone, and it is the duty of the Managing Director to then delegate further and not otherwise. He argued that it is obvious that the mandate said to be given to the Presidential Joint Panel was not from the Managing Director and not even from the NSITF Management Board. That whichever way one looks at it, the Presidential Joint Board Panel lacks the powers to conduct investigation and make a recommendation to the 2nd Defendant for the dismissal of the Claimant relying on Amasike v. Registrar General, CAC & Anor (2006) 3 NWLR Pt. 968 p. 462. He submitted that it is the law that one cannot put something on nothing and expect same to stand, that it will definitely collapse to the ground. He further submitted that the act of the 1st and 2nd Defendants is a nullity and liable to be set aside citing Ladoja v. INEC (2007) 12 NWLR Pt. 1047 P. 119, NERC v. Adebiyi & ors (2017) LPELR-42903 (CA).
[50] Learned Counsel argued that from the further affidavit of the Claimant, while serving with the 1st Defendant over the years, she was commended severally and promoted for her meritorious and prudent service without a single query. He stated that on the instant issue of dismissal, she was never queried before suspension or outright dismissal contrary to the law regulating her relationship with the 1st Defendant. That the argument of the Defendants as to whether the Claimant is entitled to notice or not before termination of her employment is untenable and irrelevant. He argued that from the totality of the affidavit evidence and exhibits presented by the Claimant particularly the positive development and innovation she brought into the 1st Defendant leading to her special promotion and commendations, it is most unethical and uncharitable to dismiss such a staff in this manner.
[51] Learned counsel submitted that cost follows events and that once the Court finds that the Claimant was unjustly dismissed, it follows that she ought to be compensated for the trauma and financial cost incurred as a result of the illegal act of the Defendants. He then urged the Court to grant all the reliefs sought by the Claimant.
THE CASE OF THE 3RD DEFENDANT
Submissions of the 3rd Defendant
[52] The position of the 3rd Defendant as distilled from the counter affidavit is that he was made a party to this suit by virtue of his office as the Chief Law Officer of the Federation. That he is not mentioned anywhere in the Claimant’s originating summons to justify his presence, neither does the Claimant have a relief against him save severally and jointly. All actions complained of by the Claimant are made out only against the activities of the 1st & 2nd Defendants and the suit can proceed without the presence of the 3rd Defendant.
[53] Learned Counsel to the 3rd Defendant formulated one issue for determination as follows:
Whether considering the facts & circumstances as evidence presented by the Claimant, the presence of the 3rd Defendant is required for the proper and effective determination of this suit
[54] She submitted that this suit has not in any way disclosed any cause of action against the 3rd Defendant. She defined a cause of action as the entire set of circumstances giving rise to an enforceable claim for which a remedy may be sought, and submitted that the Claimant has not stated in the originating processes any act or function of the 3rd Defendant that warrants his presence in this suit, relying on Williams v Williams (2008) 10 NWLR part 1095 page 364 at 390. She stated that Exhibits FMOJ1 & 2 clearly shows that the office of the 3rd Defendant acted bona fide with respect to the Claimant’s letter of appeal dated 17th of June 2021, and in the process of resolving same the Claimant served the 3rd Defendant the originating processes in this suit. That the Office of the Attorney General only acted in good faith by trying to resolve the dispute subject matter in this suit. He is not bound to Intervene, delve or interfere in the affairs of employment of the Claimant as acting so will be ultra vires the duties and functions of his office. She argued that since the 3rd Defendant did not directly or indirectly take part in the purported suspension/termination of the Claimant’s employment, it is not necessary to join him in this suit.
[55] Learned Counsel submitted that the 1st and 2nd Defendants are legal entities that can sue and be sued and they are not under the supervision of the 3rd Defendant citing A-G Kano State v. A-G Federation (2007) 6 NWLR (Pt. 1029) 164, Ojukwu v Yar'Adua (2009) 12 NWLR (PT 1154) 50. It was her submission that this suit is personal in nature as it is a matter of suspension/termination of the Claimant’s employment that does not require the presence of the 3rd Defendant in its determination. She cited Kano State v. A-G Federation (2007) 6 NWLR (Pt. 1029) 164. She argued that where the right being infringed is personal as in this instance, the Attorney General ought not to be joined as a party; but where the right is public then the 3rd Defendant can be joined as a party.
[56] Learned Counsel submitted that when a Court comes to the conclusion that there is no cause of action disclosed, the Court should strike out the action citing Nigeria Army v Lawal (2012) 10 NWLR (Pt 1307) 62. She then urged the Court to strike out the name of the 3rd Defendant because no cause of action has been disclosed against him.
COURT’S DECISION
PRELIMINARY OBJECTION
[57] Jurisdiction is a fundamental and threshold issue raised by the 1st and the 2nd Defendants. No matter how well conducted the proceedings and judgments of a Court are, they become a nullity where it is shown that the Court lacks jurisdiction to entertain the action. The jurisdiction of the Court is challenged by the 1st and 2nd Defendants on three grounds; that the suit is statute barred pursuant to Section 2 (a) of the Public Officers Protection Act, failure disclose a cognizable cause of action, and the mode of commencement. A Court is only competent to entertain a case when the subject matter of the case is within its jurisdiction, there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the court initiated by the due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v Nkemdilim (1962) NSCC 374 at 379-380, Duru V Yunusa (2010) 10NWLR (Pt. 1201) 80 at 101-102, Hope Democratic Party V Obi (2011) 12 MJSC 67.
[58] In deciding whether a case is statute barred or not, the Court only has to look at the originating process alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the complaint was filed. If the date on the originating summons is beyond the period allowed by the limitation law, the action is statute barred, see Elabanjo v Dawodu [2006] 6-7 SC 24. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the limitation has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, Udoh Trading Coy Ltd v Abere [2001] 11 NWLR (Pt 723) 114, Forestry Research Institute of Nigeria v Gold [2007] 11 NWLR (Pt 1044) 1 at 18, Ethiopian Airlines v Afribank Nig Plc [2006] 17 NWLR (Pt 1008) 245.
[59] The 1st and 2nd Defendants argue that this action is caught by the provisions of Section 2(a) of the Public Officers Protection Act CAP P41 LFN 2004 reproduced as follows:
(2) where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury, within three (3) months next after the ceasing thereof.
[60] The cause of action as revealed from the Claimant’s affidavit arose when her attention was drawn to the publication in the Punch Newspaper of 1st June 2021 (Exhibit V20) where she was named as one of the staff of the 1st Defendant whose appointment was terminated. This action was instituted on 27th August 2021 which is within the three months period of accrual of cause of action provided by the Public Officers Protection Act. The 1st and 2nd Defendants/Objectors also annexed to their affidavit in support of the Objection a newspaper publication of 1st June 2021 (Exhibit A) with the same publication naming the Claimant as one of the 1st Defendant’s staff whose appointment was terminated. This action is not caught by the limitation, and as such it is not statute barred.
[61] On the mode of commencement of this suit, Order 2 Rule 3 of the Rules of Court 2017 provides that civil proceedings that may be commenced by originating summons include matters that relate principally to the interpretation of any constitution, enactment, agreements or any other instruments relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of Section 254C of the 1999 Constitution (as amended) or by any Act or Law in force in Nigeria. The originating summons is used to commence an action where facts are not in issue as in this instance, and the Claimant is seeking a declaration of her/his rights, see Inakoju v. Adeleke (2007) NWLR (Pt 1025) 423, Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 at 191. By the questions submitted to the Court for answers, the Claimant is seeking the interpretation of the laws and regulations guiding her employment. This action has been properly commenced by the mode of originating summons.
[62] I also find from the Claimant’s supporting affidavit that the suit as constituted discloses a reasonable cause of action against the 1st and 2nd Defendants capable of activating the jurisdiction of the Court, see Imperial Homes Mortgage Bank v D- Var Consulting Ltd (2016) LPELR – 40319 (CA); Mobil Producing Unlimited V Lasepa (2002) LPELR 1887 (SC), Soba v Abdullahi (2013) LPELR – 22630 (CA)1. There is a cause of action against the 1st and 2nd Defendants.
[63] I rule that this Court is not deprived of jurisdiction to entertain this matter. I hereby assume jurisdiction to entertain and determine this suit. The Notice of Preliminary Objection lacks merit and is dismissed.
ORIGINATING SUMMONS
[64] I have carefully considered the originating summons, the affidavit evidence of the parties, arguments, submissions and authorities cited by counsel. I will begin with the submissions of learned counsel to the 3rd Defendant that the Attorney General is not a necessary party to this suit, and no cause of action is disclosed against him. Learned counsel to the Claimant did not file a direct response to the submissions of the 3rd defendant. I have carefully scrutinized the Claimant’s affidavit evidence and I find no cause of action is disclosed against the 3rd defendant. He is not a necessary party to this suit. In the circumstances, the 3rd Defendant is struck off this suit.
[65] I will now proceed with the preliminary issue raised by the Claimant on the validity of the 1st and 2nd Defendant’s counter affidavit and the provisions of the Evidence Act 2011. Section 115 (1), (3), and (4) of the Evidence Act 2011 are reproduced thus:
(1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
[66] It is pertinent at this juncture to reproduce a few paragraphs of the counter affidavit challenged so as to give a brief but in-depth overview in the determination of this issue. Paragraphs 1 to 8 only are reproduced as follows:
I, Marybeth Obiakor, Female, Adult, Christian, and Nigerian Citizen of No. 16, Samuel Ogbemudia Crescent, Zone E, Apo Legislative Quarters, F.C.T., Abuja, do hereby make oath and state as follows:
1. That I am the Litigation Secretary in the Law Firm of OSITA IZUNASO & Co., the 1st and 2nd Defendants Counsel and by virtue of my position, I am conversant with the facts and circumstances of this case.
2. That the facts which I deposed to herein are partly derived from documents reviewed by me in the course of my duties and partly from sources to which reference is made in the body of this counter affidavit. Where the facts are within my personal knowledge, they are true. Where the facts are not within my personal knowledge, I believe them to be true.
3. That I have been shown a copy of the Originating Summons and the accompanied affidavit in support of same filed by the Claimant, which I have read, including the accompanied exhibits attached thereon and I make this counter affidavit in opposition to the Originating Summons.
4. That I have the consent and authority of the 1st and 2nd Defendants to depose to the facts herein contained in this counter affidavit.
5. That one of the core objectives of the Employee’s Compensation Act (2010) is, inter alia:
(a) to provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability arising out of or in the course of employment;
(b) provide rehabilitation to employees with work-related disabilities; and
(c) establish and maintain a solvent compensation fund managed in the interest of employees and employers.
6. That based on the above mandate of the Fund, the protection of the Fund for the benefit of Employees of labour against fraudulent staff malpractices and against every kind of infraction, leading to diminution of confidence of Employees of labour and against the sacrificial sweats of workers is pivotal.
7. That for ease of administration, the 1st Defendant has several internal units and departments, including the Audit and Inspectorate Department; with the core mandate and responsibility of carrying out internal auditing of processes and procedures of the Fund, objective assurance and consulting activity, designed to add value and improve the organisation’s operations.
8. That the Internal Audit and Inspectorate Department is tasked with providing unbiased, independent reviews, objective evaluations of financial and operational business activities; including corporate governance and the Claimant as a senior staff, understands this mandate and functions of the said department. The Claimant’s internal memo, dated 3rd September 2019, is attached and marked as Exhibit NSITF 1.
[67] In this manner the deponent has continued through the entire 53 paragraphs of the 1st and 2nd Defendant’s counter affidavit to depose to facts that bother on the internal affairs, and internal memos of the 1st and 2nd Defendants. She is not an employee of the 1st or 2nd Defendants. She has failed to name the sources of her information, and the facts and circumstances forming and grounding her belief that they are true. All of this is in contravention of the provisions of the section 115 (1), (3), and (4) of the Evidence Act 2011. The deponent is a litigation secretary in the chambers of 1st and 2nd Defendant’s Counsel. She is not in a position to have personal knowledge of the internal affairs and internal memos of the Defendants and other facts she has deposed to, neither is she in a position to review documents belonging to the 1st and 2nd Defendants (client documents) as stated by her in paragraph 2. I find that paragraphs 5 to 52 of the counter affidavit are not matters within the personal knowledge of the deponent as she lacks material facts or evidence to establish the statements she has made on oath, see Veepee Industries Ltd. vs. Cocoa Industries Ltd. (2008) All FWLR (Pt. 425) 1667 at 1685 SC.
[68] I must state that whilst section 115(4) of the Evidence Act 2011 permits a deponent to swear to facts derived from a third party in an affidavit in so far as the source of his/her information is properly disclosed, such depositions are of little material value as they constitute hearsay evidence. The factum that such information was given is all that there is to the information. The truth of such information is an entirely different thing. That is why it is always ill advised for a lawyer’s clerk/litigation secretary to depose to facts intended to prove a case, as they are not matters within their personal knowledge. He/She lacks material facts or documentary evidence to establish them, and is not in any position to vouch for the truth or accuracy of the information so obtained, see Ibeto & Anor v Oguh (2022) LPELR-56803(CA) 77-80 Paras E-F, Shema v Masari & Ors (2011) LPELR-9181 (CA). The depositions by Marybeth Obiakor are in contravention of the provisions of section 115 (1), (3), and (4) of the Evidence Act. Paragraphs 5 to 52 of the 1st and 2nd Defendant’s counter affidavit are liable to be expunged, and are hereby struck out.
[69] Before I proceed to the questions submitted by the Claimant for determination, it is pertinent to state that the facts deposed to by the Claimant in the supporting affidavit to the originating summons are unchallenged and therefore deemed admitted. An unchallenged affidavit must be accepted as true and correct and acted upon by the Court, see Ogoejeofo v Ogoejeofo (2006) 1 SC (Pt 1) 157, A-G Platean State v A-G Nasarawa State (2005) 4 SC at 55; Unity Bank v Denclaff Ltd (2012) 18 NWLR (Pt 1332) 293 SC.
[70] The Claimant’s contention is that the Nigeria Social Insurance Trust Fund Act, the Conditions of Service of the Nigeria Social Insurance Trust Fund, and the Public Service Rules, contain the regulatory disciplinary procedures that she alleges were flouted in the termination of her employment. It is necessary at this stage to first determine the status of the Claimant’s employment relationship with the 1st Defendant. In paragraphs 3.20 to 3.24 of the Claimant’s written address, learned Counsel submitted that it is one clothed with statutory flavor. The 1st and 2nd Defendant did not respond to this issue in their written address. Their silence on this issue implies a consensus ad idem (they are in agreement). I note that in paragraph 11 of the address of 1st and 2nd Defendants, learned Counsel referred to paragraph 4 of the Claimant’s employment letter states thus: “this employment is subject to the terms and conditions laid down in the Staff Regulations and Conditions of Service of the Nigeria Social Insurance Trust Fund”, and he submitted that the Claimant’s employment is guided by the staff regulations and conditions of service.
[71] This not withstanding, by Section 318 of the 1999 Constitution as amended, “Public service of the Federation” means service of the Federation in any capacity in respect of the Government of the Federation, and includes service as:
(c) Member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly.
(e) Staff of any statutory corporation established by an Act of the National Assembly.
[72] The 1st Defendant comes within the definition of Public service of the Federation. It follows that the Claimant as a staff of the 1st Defendant is in the Public service of the Federation. The Public Service Rules (PSR) govern the conditions of service of Federal Public Servants. I find that the Claimant’s employment is governed both by the Conditions of Service of the Nigeria Social Insurance Trust Fund (Exhibit V23), and the Public Service Rules (Exhibit V24). The Public Service Rules (PSR) invest the public servant over whom they prevail a legal status, which places their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. See Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378, Stephen Imuzei Akhiojemi & Anor v. Administrative Staff College of Nigeria & anor [2014] 43 NLLR (Pt. 135) 240; Shitta-Bey v Federal Public Service Commission [1981] 1 SC 26 at 35.
[73] The Public Service Rules (PSR) have been made pursuant to the powers conferred by the Constitution and have constitutional force. The Staff Regulations and Conditions of Service of the Nigeria Social Insurance Trust Fund are derived from statute. An employment is said to be clothed with statutory flavour if the appointment is created and governed by statute or regulations derived from statute, see Shitta-Bey v Federal Public Service Commission supra, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589; PHCN Plc v. Offoelo [2013] 4 NWLR (Pt 1344) 380 at 410, Paras E-F; Fakuade v. OAUTH [1993] 5 NWLR (Pt 5) 17. I hold that the Claimant’s employment is one with statutory flavor.
[74] It is the law that in the exercise of its interpretation jurisdiction, the Court must interpret the words of a statute where they are simple and clear according to their ordinary and grammatical meaning without any colouration. The Courts are enjoined to adopt the whole statute rule of interpretation, see Obi v INEC (2007) 11 NWLR (Pt 1046) at 449, Nwankwo v. Yar’adua [2010] 12 NWLR (Pt. 1209) 518 at 589 paras. C-E, Ogbonna v. AG Imo State [1992] 1 NWLR (Pt. 220) 647. It is settled that the cardinal rule in interpretation is to give effect to the intention of the legislature, see A-G Federation v A-G Lagos State (2013) 16 NWLR (Pt 1380) 249, Gana v SDP (2019) LPELR-47153 (SC). The Courts now adopt the “purposes” approach to give effect to the true purpose of the Legislature, see Elias vs. FRN (2021) 16 NWLR (Pt. 1800) 495 at 531 D-G. It is imperative at this juncture to reproduce the relevant provisions of the 1st Defendant’s establishment Act, and its the staff regulations and conditions of service that regulate the Claimant’s appointment.
[75] Section 9 (3), (4), and (5) of the Nigeria Social Insurance Trust Fund Act CAP N88 LFN 2010 provides:
(3) The Board may employ such other staff as may, in the opinion of the Board, be necessary to assist the Managing Director in carrying out the functions of the Board under this Act.
(4) The terms and conditions of service (including terms and conditions as to remuneration, allowances, pensions, gratuities and other benefits) of the persons employed by the Board shall be determined by the Board from time to time.
(5) The control of the employees (including their promotion and discipline) shall vest in the Board but may be delegated by the Board to the Managing Director or any of the Executive Directors subject to such conditions as the Board may specify.
[76] By these provisions, the Board of the 1st Defendant has been empowered to appoint its staff, determine their terms and conditions of service in respect of remuneration, allowances, pension, gratuities, promotion, and to exercise disciplinary powers and control over its employees. The use of the word “shall” in section 9 (4) and (5) denotes and connotes mandatoriness and as such cannot be varied or interpreted otherwise to deviate from the intentions and purpose of the lawmakers. The word “shall” imposes a duty and is a word of command, see Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd [2014] 7 NWLR (Pt. 1405) page 165 at 193 paras D-E, Ugboji v State (2017) LPELR – 43427. The power donated to the Board may be delegated only to the Managing Director, or any of the Executive Directors subject to the conditions specified in the delegated powers. The Board exercised its powers when it issued the staff conditions of service (Exhibit V23) providing the disciplinary procedures for all cadre of employees.
[77] It is trite law that when a statute confers a power on the holder of an office, it is a public power; and unless the contrary intention appears from or in the statute, the power may be exercised only by the holder of the office and by his successor-in-office or the holder of the office for the time being, see Obayuwana v. Gov, Bendel State & Anor (1982) LPELR-2160 (SC)Pp. 25-26 Paras D; and AG. Ogun State v. AG Federation (1982) LPELR-11 (SC) Pp.65 paras C. The 2nd Defendant is not empowered to exercise disciplinary control as he is not the holder of the office that has the statutory powers to so exercise disciplinary control over the Claimant.
[78] Rules 160101 and 160501 Chapter 16 of the Public Service Rule provide:
160101- A Parastatal is a government-owned organization established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directives of the Government.
160501- The power to exercise disciplinary control over officers in the Parastatals is vested in the supervisory Boards/Councils in accordance with their respective conditions of service.
By the PSR, the power to exercise disciplinary control over staff in the 1st Defendant and the Claimant is conferred on the Board in accordance with the conditions of service formulated by the Board. The 2nd Defendant or any external body is not statutorily conferred with the powers of disciplinary control over the staff of the 1st Defendant. The 2nd Defendant as the Minister for Labour and Employment has in the affairs of the 1st Defendant been given the role to exercise control at policy level only through the 1st Defendant as provided in Rules 160201 (c) of the Public Service Rules.
[79] Rules 05.02, 06.01, and 06.02 of the Nigeria Social Insurance Trust Fund (NSITF) Staff Conditions of Service are reproduced:
CONFIRMED PENSIONABLE STAFF
05.02 - Notice of Termination
The Board may determine other than by dismissal, appointment of confirmed pensionable staff by giving the staff one month’s salary in lieu of notice. In this case, the period of notice shall include earned leave.
GENERAL DISCIPLINE
06.02- The power to dismiss and to exercise disciplinary control over the staff is vested in the Nigeria Social Insurance Trust Fund Management Board. All or any of these powers may (sic) delegated to the Managing Director of the Fund who in turn may delegate some of the powers to any of the heads of Department within the Fund or to an appropriate Committee. These powers shall be exercised by the Management Board.
06.07 - MISCONDUCT
06.11- If the nature of the alleged misconduct is such that warrants dismissal, the following procedure shall be followed:
(a) the employee shall be notified in writing of the ground upon which it is intended to dismiss him; and shall be given full opportunity of exculpate himself.
(b) the matter shall be investigated by the level of management employed in the delegation of the Board’s power.
(c) if any witness is called to give evidence the employee shall be entitled to be present and to put questions to the witness.
(d) No documentary evidence shall be used against the employee unless he has previously been supplied with a copy thereof or given access thereto.
(e) in lieu of dismissal, the Board may at its discretion impose so lesser penalty such as reduction in rank, stoppage of increment or reprimand. Alternatively, if the proceedings disclose grounds for so doing, it my (sic) without further proceeding require the employee to retire from the Board’s service.
SUSPENSION
6.13 (b)- Without prejudice to the power of the Board to suspend staff for any other reason, when a case of misconduct against a staff has been duly investigated or where conviction on a criminal charge by a competent Court of Law has been established against a staff and dismissal is contemplated, the staff shall be suspended.
[80] The power to suspend a staff resides with the Board by Rule 6.13 (b) and the procedure for suspension is clear and unambiguous. It is only after a case of misconduct has been investigated that the staff shall (underlining mine) be suspended. There is no evidence that the Claimant was investigated before she was placed on suspension.
[81] By Rule 05.02, the power to determine the employment of a confirmed pensionable staff other than by dismissal resides with the Board, and in 06.02 the power to dismiss and exercise disciplinary control over staff is conferred on, vested and resides in the 1st Defendant. These powers may be delegated only to the Managing Director of the 1st Defendant who may delegate same to any Head of Department within the 1st Defendant or an appropriate committee, see Amasike v. Registrar General, CAC & Anor (2006) 3 NWLR Pt. 968 p. 462. It is my considered view that the ‘appropriate committee’ must be one within the confines of the 1st Defendant only. The purpose and intention of the Legislature in Section 9 (5) of the 1st Defendant’s Establishment Act is for disciplinary powers and control to be within and in the hands of the Management Board. The intent and purpose of Rules 05.02 and 06.02 is for both to be in harmony with Section 9 (5) of the Nigeria Social Insurance Trust Fund Act.
[82] In Elias vs. FRN (2021) 16 NWLR (Pt. 1800) 495 at 531 para D-G the Supreme Court per Eko JSC succinctly stated the position and held as follows:
Courts now adopt the “purposes” approach which seeks to give effect to the true purpose of the legislation: Nafiu Rabiu v. Kano State (1980) 8-11 SC 130; A.-G., Lagos State v. A.-G., Federation (2003) 12 NWLR (Pt. 833) 1 at 187. In so doing they ascertain the intention of the parliament from the language used in statute; Buhari v. Yusufu (2003) 14 NWLR (Pt. 841) 446 at 535. To ascertain the true purpose of the statutory provision of the intention of the lawmaker for enacting the provision resort is usually had to the ordinary and natural meaning of the words of the statute Okumagba v. Egbe (1965) 1 ALL NLR 62; Ifezue v. Mbadugba(1984) 1 SCNLR 427. By this approach courts avoid the narrow construction of the statutory provision that ultimately defeats the intention of the lawmaker and the purpose of that statutory provision.
[83] It is therefore my considered view that the Presidential Joint Board and Audit Investigation Panel on Nigeria Social Insurance Trust Fund is an external investigation panel unknown to the NSITF Act. I find that it is not the ‘appropriate committee’ envisaged by Rule 06.02 and section 9 (5) of the NSITF Act. The appropriate committee must be found within the confines of the 1st Defendant Management Board as statutorily provided, and not outside it as argued by learned counsel to the 1st and 2nd Defendants. I so hold.
[84] Despite not being the appropriate committee, the Claimant complied with the Presidential Joint Board and Audit Investigation Panel’s request for a written submission (Exhibit V14). She sent in her written response (Exhibit V15) within her knowledge and appealed that the Panel order that she be granted access to the office to enable her access documents necessary for an appropriate response given that the she had already been suspended and locked out. There is no evidence before the Court that the Presidential Joint Board and Audit Investigation Panel granted her request for access to her office and documents. I therefore find that the Panel denied the Claimant her right to a fair hearing during its investigation by denying her access to documents in her defence, and not following the procedure provided in Rule 06.11(b), (c), and (d). There is no evidence that the Panel made its findings and recommendations indicting the Claimant public, or known to her.
[85] Where a disciplinary case may result in a termination or dismissal, Rule 06.11 provides a formal disciplinary hearing/procedure because the civil rights and obligations of the employee and in this instance the Claimant are about to be determined. There is no evidence that the Claimant was notified in writing of the ground upon which it was intended to dismiss her; given full opportunity of exculpate herself, that the matter was investigated by the level of management employed in the delegation of the Board’s power, given the opportunity to be present and to put questions to any witness, or previously supplied with documentary evidence to be used against her, or given access to same. The intendment of Rule 06.11 is that when the civil rights and obligations of the employee and in this instance the Claimant are to be determined, the determination of her civil rights and obligations will necessitate determination of the allegations, either to find her guilty or liable to a fault or infraction.
[86] The Presidential Joint Board and Audit Investigation Panel on Nigeria Social Insurance Trust Fund is an investigative Panel. It made its recommendations to the 2nd Defendant. The Panel’s report and recommendations are not before the Court. The employer’s duty where a Panel of Inquiry has made out a case against an employee has been succinctly put by the Supreme Court in the case of Alhaji Baba v Nigerian Civil Aviation Training Center [1991] 5 NWLR (Pt 192) 388 at 418, [1991] 2 NSCC 145 at 158 per Nnaemeka-Agu JSC of blessed memory:
But once the panel has concluded its inquiry and makes up its mind that any points had been prima facie made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services.
Also see Oloruntoba-Oju & Ors v Abdul Raheem & Ors (2009) LPELR-2596 (SC) 62-64 Para E, Bisong v University of Calabar (2016) LPELR-41246 (CA) 31-32 Para B.
[87] Section 36 (1) of the 1999 Constitution (as amended) guarantees the Claimant a right to a fair hearing as follows:
In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
In the case of FUT, Yola v. Maiwuya & Ors (2010) LPELR-9001 (CA) Pp. 16-17 Paras E the Court held as follows:
The law is that a public officer against whom such allegation of serious misconduct is laid, cannot be removed without being heard. In the instant case, there was an investigative panel set up to investigate the 12th June 1996 incident in the University. This Panel was purely investigative. It is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee...
[88] There was no disciplinary committee to look into the report of the Presidential Joint Board and Audit Investigation Panel. There was no hearing to afford, the Claimant an opportunity to answer to the charge of wrongdoing against her. It will therefore be correct to say that her fundamental right to a fair hearing was breached. I find that the 1st and 2nd Defendants, and the Presidential Joint Board and Audit Investigation Panel failed to comply with the statutory provisions of section 9 (5) of the Nigeria Social Insurance Trust Fund Act, the mandatory provisions of Rules 06.02 and 06.11 of the 1st Defendant’s staff conditions of service, and Section 36(1) of the 1999 Constitution (as amended). Consequent on this failure, the 1st and 2nd Defendants, and the Presidential Joint Board and Audit Investigation Panel breached the rules of natural justice and denied the Claimant her right to a fair hearing.
[89] The rules regulating discipline and the termination of the Claimant’s employment must be strictly complied with, her employment being one with statutory flavour. Where this is breached, she is entitled to automatic reinstatement, see Shitta-Bey v Federal Public Service Commission supra, Iderima v Rivers State Civil Service Commission supra, Olatunbosun v NISER Council [1983] 3 NWLR (Pt 80) 25.
[90] I answer the questions submitted for determination as follows:
Question A: The purported termination of the appointment of the Claimant by the 2nd Defendant is unlawful, null and void, and of no effect.
Question B: It is the Board of Nigeria Social Insurance Trust Fund (NSITF) that has the power to determine, severe or terminate the appointment of the Claimant.
Question C: The appointment of the Claimant is to be determined, severed or terminated as provided in Section Six of the Staff Handbook. The purported termination of the Claimant’s appointment by the 2nd defendant is null and void.
Question D: By the relevant statutory provisions, the rules of natural justice were not followed in the proceedings of the Presidential Joint Board and Audit Investigation Panel.
[91] For all the reasons above, I hereby Declare and make the following orders:
1) It is Declared that by the Federal Government Public Service Rules and Nigeria Social Insurance Trust Fund, (NSITF) Staff Conditions of Service, it is the 1st Defendant that can terminate the appointment of the Claimant.
2) It is Declared that the Claimant’s employment cannot be terminated except in accordance with Nigeria Social Insurance Trust Fund, (NSITF) Staff Conditions of Service.
3) It is Declared that by the provisions of the Nigeria Social Insurance Trust Fund Act, and Nigeria Social Insurance Trust Fund (NSITF) Staff Conditions of Service, the Claimant’s suspension, and subsequent termination/compulsory retirement is unlawful, null and void, and of no effect whatsoever. It is hereby set aside.
4) It is Declared that the Claimant’s employment with the 1st Defendant is still subsisting and she is entitled to all her remuneration and entitlements from the 1st Defendant.
5) The Claimant is reinstated into the service of the Nigeria Social Insurance Trust Fund immediately, and to her position of Assistant General Manager with all the rights and privileges she is entitled to and with no loss of seniority, rank/grade level.
6) The 1st Defendant is ordered to immediately pay the Claimant all her outstanding salaries, increment, allowances from 6th July 2020 when she was suspended until the date of this judgment.
7) Costs awarded the Claimant in the sum of N500,000.00.
Judgement is entered accordingly.
____________________________
Hon Justice O.A.Obaseki-Osaghae
