IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO
DATED THIS: 17TH OF NOVEMBER, 2021
SUIT NO: NICN/BEN/03/2018
BETWEEN
AIGUOBASIMWIN ESOSA ……………………CLAIMANT
AND
1.
|
…………DEFENDANTS |
POLICE SERVICE COMMISSION
2. INSPECTOR GENERAL OF POLICE
3. A.C.P. ZANA SHETTIMA
4. ASP OLAOYE KOLAWOLE
Representations;
E.M. Iguehide Esq. for the claimant
No Appearance for the defendant
JUDGMENT
1. The claimant commenced this suit vide a complaint, Statement of Facts and other accompanying processes dated and filed on 22nd of February, 2018, the statement of facts was later amended pursuant to an order of this Court granted on 4th of November, 2020. The extant statement of facts is the one dated 9th November, 2020 and filed 10th November, 2020, whereby the claimant seeks the following reliefs against the defendants:
a) A declaration that the purported dismissal of the claimant is illegal, null and void and of no effect.
b)Reinstatement into the Nigeria Police Force and the restoration of his rank as a sergeant.
c) Payment of his out duty special allowance to the tune of N155,000 less N20,000 paid only by the 3rd defendant to the claimant which is equal to N135,000
d)Payment of claimant’s National Inland Waterway Authority (NIWA) allowance of N10,000 (Ten Thousand Naira) per month from 2018 till judgment which has stopped.
e) Compensatory damages of the sum of N150,000,000 (One Hundred and Fifty Million Naira) being just and adequate compensation for the beating injury, torture and unlawful detention without food and water for 5 days and his subsequent hospitalization in both Igbokoda and Warri Specialist Hospitals as a result of the injury suffered in the cause of his travails.
f) The sum of N2,000,000 (Two Million Naira only) for emotional and psychological trauma suffered by the claimant.
g) Arrest and trial (sic) of ASP Kolawole for stealing, illegal duty and attempted murder on the claimant.
2. The summary of this case is that the claimant, was recruited into the Nigeria Police Force and transferred to the Nigerian Inland Waterways Police Command, Igbokoda, Ondo State under the command of ASP Waheed Olaoye on 23rd August, 2004. He later acquired the rank of Sergeant and was deployed on special duty to Sinotrust Intl. Inv. Ltd. on 9th June, 2014. The claimant was alleged of assaulting his superior officer and was arrested and tried for misconduct in the course of his work. This eventually led to his dismissal and the claimant being unsatisfied with his trial and dismissal from the service thereafter initiated this suit.
3. The defendants on their own part filed a memorandum of appearance and statement of defence dated 16th April, 2018 and filed 17th April, 2018.
4. However, throughout the trial, the defendants refused to show up and it is on record that this suit was earlier set for trial before the Akure division of this court even though the suit was filed at the Benin Registry of this Court. The case was part heard before my learned brother, O.O. Oyewumi J. and upon the creation of Benin Division of this Court, the suit was transferred to Benin. The Defendants’ counsel later applied to the HPNICN for a transfer of this suit back to the Akure Division, the application was however refused and the case was retained by the Benin Division.
5. Premised on this development, hearing notices were issued to the claimant’s counsel as well as the defendants’ counsel on record, one K. A. Olatunji of the Legal Unit of Ondo State Police Headquarters. Also issued were hearing notices for the 4th of November, 2020, 17th of November, 2020, and 3rd of February, 2021.
6. A further letter dated 25th August, 2021 was also written by the Divisional Registrar of this Court to the Commissioner of Police, Ondo State, informing him of the pendency of this suit and for the attention of the defence counsel. The letter was received and acknowledged, but all efforts to ensure the attendance of defendants’ counsel in this suit yielded no result.
7. This court thereafter set the case down for trial on 23rd February, 2021 and the claimant eventually adopted his deposition on oath on that day as CW1, he also tendered documents that were admitted and marked Exhibits A1-A10.
8. CW1 led evidence that he was recruited into the Nigerian Police Force in 2002, and was transferred to the Nigerian Inland Waterways Police Command, Igbokoda, Ondo State under the 4th defendant’s command on 23rd August, 2004. He stated that he was later deployed as a Sergeant on special duty to Sinotrust Intl. Inv. Ltd. on 9th June, 2014, and placed on a daily allowance of N3000 payable through the 4th defendant’s account with Union Bank Plc. The 4th defendant however, instead of paying him the sum of N155,000, for the period of engagement only paid N35,000 as his special duty entitlement. Upon his protest that he was short paid he was attacked and detained at Igbokoda Police Station.
9. CW1 stated that on 24th of November, 2017 the 4th defendant was replaced by one DSP Victor Olowolagba who further detained him without food and water for five days. He continued that on the orders of the 4th defendant, he was beaten so much that he slipped into a coma and was dumped at General hospital, Igbokoda. He continued that he was later revived and set to undergo some medical examinations, when he was taken from the hospital and returned to cell.
10. An orderly room trial was thereafter instituted against him, but the Judge Advocate at the trial refused to allow him to call witnesses in his defence. He continued that this trial was later discarded and another one initiated, but the defendants persistently denied him the right to call his own witnesses. He wrote to the provost marshal at the state headquarters about his predicament and to his surprise, was informed of his dismissal from service based on the outcome of his administrative trial.
11. The case was thereafter adjourned for cross examination of CW1 and on the 4th of May, 2021, when the case came up again, the defence counsel was absent and the Court foreclosed the defence from cross examining CW1. The case was adjourned for defence on 18th October, 2021, and the same scenario repeated itself as the defence counsel was absent from court, whereupon the defendants were foreclosed from entering a defence in this suit.
12. It is on record from the foregoing that this suit was undefended. The claimant’s counsel subsequently applied for a date to file his final address and the case was adjourned for adoption of final written address upon which hearing notice was again issued to the defence counsel. The case came up for adoption of final address on the 9th of September, 2021, and the defence counsel again failed to show up despite having been served with the hearing notice of that date. The claimant adopted his final address on that day, and the case was thereafter set down for Judgment, with an order for hearing notice to be issued on the defence counsel.
13. In the claimant’s final written address dated 4th of November, 2021 and filed 5th of November, 2021, E.M. Iguehide Esq. formulated one issue for determination, to wit:
Whether the dismissal of the Claimant from employment by the Defendants was not unlawful to warrant this Honourable Court granting the Claimant’s reliefs.
14. Learned counsel on the sole issue submitted that the dismissal of the claimant from employment of the Defendants is unlawful in the circumstances of this case. He argued that the Claimant’s employment is statutory and his removal or dismissal must be done in compliance with the Police Act and regulation, citing FUT. Yola v Maiwaya (2013) ALL FWLF (PART 677) 753 AT 762.
15. He noted that Exhibit A2B established the fact that the Claimant was only paid #20,000.0 0(twenty thousand) leaving his due balance unpaid. He added that the claimant tendered exhibits A3A, A3B, A4-1-4 to establish the fact that he was beaten, tortured and degraded by the Defendants. The claimant’s counsel noted that all these facts were unchallenged or opposed by the Defendants. He added that facts not challenged are deemed admitted, citing Mobil Producing Nigeria Unlimited v Monokpo (NO.2) (2001) F.W.L.R. (PART 78) PAGE 1210 AT PAGE 1218 RATIO 6, and urged the court to act on same.
16. The claimant’s counsel argued that assuming the Claimant’s action amounted to gross misconduct, i.e. his demand for the balance of his allowance from the 4th Defendant in public, the Defendant cannot lawfully remove or dismiss him unless they comply with the applicable rules and regulations guiding his employment. He added that the Claimant should have been afforded fair hearing and relied on Section 36 (6), (a), (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Section 131-134 of the Police Act, 2020.
17. Learned counsel urged the Court to hold that the claimant was denied fair hearing, and as such, set aside his purported dismissal as same was wrong and unlawful. He concluded that that the claimant has established by his unchallenged evidence that his dismissal was unlawful and prayed the Court to grant the Claimant’s reliefs.
18. I have taken a thorough look at the pleadings, evidence and arguments submitted in this case and I have distilled one issue for effectual determination of this suit, to wit:
Whether the claimant has established his case from the evidence adduced in this case?
19. It is pertinent at this stage to emphasize that the defendants filed a statement of defence in this suit but failed to call evidence in support of same. The clear position of the law on pleading not supported by evidence is that same is worthless. In the instant case, the defendants did not proffer any evidence to breathe life to their averments in the statement of defence and as such, same are deemed abandoned and hold no value before the Court, see Iwuoha & Anor. v Ohazurike &Ors. (2016) LPELR-40513 (CA) where Ige JCA held as follows:
“As a corollary to the above a party is also under a bounden duty to call evidence in support of his pleading otherwise the pleading that is not covered or supported by evidence of the pleader will be deemed abandoned. This is applicable to the two sides in civil proceedings... Pleadings are no evidence. The Defendant must call evidence to support his averments where this is not done the defendant is deemed to have abandoned his defence.”
20. This position will however not detract the claimant from establishing his case by adducing credible evidence before this Court, as failure of the defendants to call evidence in this case only means that the claimant’s case will be established on minimal proof, see Onjeh & Anor. v Mark & Ors. (2015) LPELR-25974 (CA) where Ige JCA held that:
“It is settled law that where an adversary fails to call evidence in support of his pleading the onus on the plaintiff naturally discharged on minimal proof…”
See also MTN v Mundra Ventures Nig. Ltd. & Ors. (2016) LPELR-40343(CA) pg. 66 where Georgewill JCA held that:
“It is trite that a plaintiff must succeed on the strength of his own case and not merely on the absence of the case of the defendant. Where a plaintiff has not led sufficient credible evidence in proof of his claims, the absence of the case of the defendant is not a sine qua non for success by the plaintiff. The law is that it is he who alleges that must prove what he alleges.”
21. The law is settled that he who asserts must prove, and the burden of proof in a civil suit rests on the party who will fail if no evidence is called. Furthermore, in a suit for wrongful dismissal, the employee bears the onus to: (a) place the terms and conditions of employment before the court, and (b) in what way or manner the terms were breached by the employer. Also see Sections 131, 132 and 133 of the Evidence Act, 2011 and UBA Plc. v Oranuba (2013) LPELR-20692 (CA).
22. In resolving the issue for determination, it is vital to consider the 3 categories of employment recognized by law viz: (a) Master/servant, (b) statutory employment and (c) those who hold their employment at the pleasure of the employer. See Seven-Up Bottling Company Plc. V Ajayi (2007) LPELR-8765 (CA).
23. An employment is said to be statutory when it is protected by statute or when there are laid down regulations made to govern the procedure for appointment and discipline of an employee. See Audu V. Petroleum Equalisation Fund (Management) Board & Anor (2010) LPELR-3824 (CA) Pg. 17. The claimant led evidence that he was recruited to the Nigeria Police Force and given the rank of constable and later rose to the rank of sergeant subject to the powers of the Police Service Commission and the Police Act, and as such, the claimant’s employment is clearly governed by statute and he was in a statutory employment.
24. In pursuit of his case, the claimant tendered Exhibits A1-A10, and led evidence that he was dismissed from the service in breach of his right to fair hearing and the regulations governing his employment as a police officer. The claimant pleaded in paragraphs 17 18 and 19 of his extant statement of facts as follows:
“The claimant avers that after his release and recovery he was ordered to report at the Orderly Room trial at Ore Command Ondo State of the Nigeria Police Force.
The claimant avers that at the Orderly Room trial the Judge Advocate a Superintendent of Police by the name tag Chucks. O who happens to be the DPO at Ore Division of the Ondo State Police Command, Nigeria Police Force blatantly refused him to bring in his witnesses who were ready to testify to the incident between himself and the 4th defendant.”
25. CW1 further testified vide paragraphs 19, 20, and 22 of his adopted written deposition as follows:
“That these officers instituted an orderly room trial against me to intimidate me.
that at the orderly room trial, the Judge Advocate refused me to bring my witnesses who were ready to testify on what actually transpired.
that this orderly room trial was later discarded and another one constituted at Ore Police Station headed by the Divisional Police Officer (DPO), one Superintendent O. Chucks who prevented me from calling witnesses.”
26. These assertions and evidence adduced by the claimant were uncontroverted by the defendants in this case, and this Court is bound to accept and rely on same, see Ezechukwu & Anor. v Onwuka (2016) LPELR-26055 (SC).
27. In Muomah v Enterprise Bank Ltd (2015) LPELR-24832(CA), Nimpar JCA held that:
"The law in my view is settled that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it. ODULAJA V HADDAD (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 SC 79. Unchallenged and un-contradicted evidence ought to be accepted by the court as establishing the facts therein contained."
28. It is based on this premise that I find that the claimant has established his assertions that the defendant refused to allow him to call witnesses in defence of the allegation levied against him at his orderly room trial based on the standard of minimal proof.
29. The settled position of the law is that a statutory employment cannot be terminated in any way other than the procedure provided in the statute or regulation governing the employment. In Ogbaje v Abuja Investment and Property Development Company Ltd (2007) LPELR-11855(CA) Pg. 44-45, Omoleye JCA, held that:
“Where as in this case, an employee by virtue of Exhibit “A” is qualified by his appointment to a permanent and pensionable position, the employee is not in a servant and master relationship with the employer, the employment cannot be determined at the will of the parties but in accordance with the terms and obligations of the conditions of employment.”
30. It is a universal principle of law and natural justice that no person should be prejudged without being heard and a disciplinary process conducted without fair haering runs the risk of been declared a nullity giving the provisions of Section 36 of the 1999 CFRN (as amended). In other words, anybody charged with power to determine the culpability of a person in respect of an allegation must afford the person so accused his/ her right to fair hearing. See Jibrin v NEPA (2003) LPELR-7267(CA) Pg. 19 where Bulkachawa JCA held thus:
“it is trite that a body whether judicial, quasi-judicial, administrative or executive in inception acts judicially when determining the civil rights and obligations of a person finding him liable of fault, the body must give him a hearing before any issue can be properly decided.
31. Furthermore in Olatunbosun v Nigerian Institute of Social and Economic Research Council (Supra), it was held by Oputa JSC that:
“The right to fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or pension, in such a case, it is equally vitally important that the Appellant be given ample opportunity to defend his conduct.”
32. The right to fair hearing comprises of two main pillars, i.e. ‘Nemo judex en causa sua’ and ‘audi alteramm partem’ which simply means that a man cannot be a judge in his own cause, and affording the other side a hearing and the opportunity to call witnesses if available, see Umar & Anor v Okeke (2016) LPELR-40258(CA) where Bdliya JCA held thus:
“In civil cases, fair hearing entails the following which must be strictly complied with in the adjudication process by the Court.(a) a plaintiff or any party is entitled to counsel of his choice;(b) a plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case;(c) a plaintiff, by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary;(d) at the close of the case and in accordance with the relevant Court rules, a plaintiff must have the same rights as given to his adversary to offer by his counsel the final address on the law in support of his case.”
33. The claimant in the instant case led uncontroverted evidence on the breach of his fundamental right to fair hearing, and same is therefore deemed established. In effect, the defendants’ refusal to allow the claimant to call witnesses in defence of the allegation levied against him at the orderly room trial amounted to a breach of his constitutional right to fair hearing so far as it is uncontroverted, thereby rendering the trial null and void. The above position conforms with the position of the law that, where it is found that there is a breach of fair hearing in the proceedings of any tribunal/investigation panel, any act founded thereon is a nullity, see Egbuchu v Continental Merchant Bank Plc& Ors (2016) LPELR 40053 (SC) where Kekere-Ekun JSC held that:
“The law is trite that any proceedings conducted without fair hearing amounts to a nullity and is bound to be set aside.”
34. It is premised on the foregoing that I find that the procedure leading to the claimant’s dismissal is flawed, as a result of which the dismissal of the claimant from the service is unlawful. I so hold.
35. The claimant vide his reliefs (i) and (ii), is seeking an order upturning his dismissal and an order for his reinstatement into the Nigeria Police Force. I have held in this judgment that the claimant’s dismissal is unlawful, by reason of the breach of his right to fair hearing in the proceedings leading up to his dismissal, and the position of law in instances of unlawful dismissal is that such an employee will be reinstated, see Saliman v Kwara Poly & Ors. (2006) 5 NWLR (Pt. 974) Pg. 477 where the Court of Appeal held per Muntaka-Coomassie, J.C.A that:
36. “Having held that the appellant's dismissal was null, void and unconstitutional and taking into consideration the nature of the employment i.e. the statutory flavour, the necessary order to make is that of re-instatement … Where the law says that the victim shall be re-instated the question of imposing on the respondent an unwilling employee shall not arise. The wisdom underlying the position of the law is much greater than any other consideration."
37. In this wise reliefs (i) and (ii) succeed and it is hereby ordered that the claimant be reinstated back as Sergeant in the Nigeria Police Force forthwith. I so hold.
38. The claimant vide reliefs (iii) and (iv) is also claiming the sum of N135,000 being his special duty allowance, and N10,000 from 2018 till the date of judgment, being his National Inland Waterway Authority allowance. I find that these reliefs borders on special damages, and are to be proved specifically, cogently and concisely. The claimant pleaded that by virtue of his posting to Sinotruts Intl. investment Ltd., he was entitled to a daily sum of N3000. In proof of this, he tendered Exhibits A2 (a & b).
39. These documents do not however establish the claimant’s entitlement to the said sum as Exhibit A2 (b) (the claimant’s bank statement) merely showed that a sum of N20,000 was transferred into the claimant’s First Bank of Nigeria account. There is nothing to show what the payment was meant for or who it was from, the law is trite that special damages must be specifically pleaded and strictly proved, in the absence of such proof, a claim for special damages is bound to fail, see Flourmills of Nigeria Plc & Anor. v Nigeria Customs Service Board & Ors. (2016) Lpelr-41256(CA) where Georgewill, JCA held thus:
“It is thus well settled that in law there is need to specifically plead and strictly prove special damages as the rule requires anyone asking for special damages to prove strictly that he did suffered such damages as being claimed, though this does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages.
What is required of a party claiming special damages is to establish entitlement to such special damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head. Save this qualification, the general law of evidence as to prove by preponderance or weight as usual in civil cases operates.”
40. In the instant case however, the claimant did not proffer any evidence in proof that he is entitled to a daily sum of N3000 and N10,000.00k monthly allowance as claimed, I find therefore that reliefs (iii) and (iv) are unsupported by evidence and are hereby refused. I so hold.
41. The claimant is also seeking damages vide reliefs (v) and (vi) in the sum of N150,000,000 (One Hundred and Fifty Million Naira) as compensatory damages for his injury, torture and unlawful detention, and the sum of N2,000,000 (Two Million Naira) for the emotional psychological trauma the defendants’ action caused. In proof thereof, the claimant tendered Exhibits A3-A6.
42. These reliefs are clearly claims in special damages but the evidence adduced fell short of the standard of proof required for a claim in special damages. A careful reading of the Exhibits tendered in this instance reveals that the claimant was treated for soft tissue injury to the right forehead and was slated to undergo some tests, no other evidence was however adduced to link the exhibits to the defendants’ action and to corroborate the claimant’s account. However as a claim in general damages, the unlawful detention psychological trauma and assault for which the claimant is seeking compensatory damages, may be held to flow from the breach committed by the defendant against the claimant, even as general damages is at the discretion of the Court. On this see the holding of Danjuma in JCA AFOLABI v. OLA(2016) LPELR-40186(CA) where his lordship held that:
“The law regarding to general damages presumes damages as flowing from the wrong complained of by the victim. Such damages in law need not be "specifically pleaded and strictly proved.
In other words, general damages are compensatory damages for harm resulting from the tort for which the party has sued.”
43. However, this court having ordered the reinstatement of the claimant to the service in this case, is not moved to award general damages or compensatory damages in the instant case, and as such the claim for damages is hereby refused. I so hold.
44. On the last relief which is an order for the arrest and prosecution of the 4th defendant, I find that this relief borders on criminal liability, and as such is not strictly labour related and outside the jurisdiction of this Court, and is therefore unsustainable by this Court. I so hold.
45. In summary, I find that the claimant’s case succeeds in part and it is hereby declared and ordered as follows:
i. The purported dismissal of the claimant by the defendant is unlawful, null and void, and of no effect.
ii. The defendants are hereby ordered to reinstate the claimant into the service and restore his rank as Sergeant.
iii. The Claimant’s reliefs (iii)-(vii) fail.
iv. A cost of N200,000.00k is awarded against the defendants.
Judgment is accordingly entered.
A.A. Adewemimo
Presiding Judge
