IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: FRIDAY 10TH JUNE, 2022
SUIT NO: NICN/PHC/04/2015
BETWEEN:
ELOM DAVID OBETEN ---------------------------- CLAIMANT
AND
FEDERAL ROAD SAFETY COMMISSION ----------------- DEFENDANT
JUDGMENT
1.1. The claimant filed this suit by way of Complaint and Statement of Facts dated and filed on the 12th of February, 2015, wherein he claims against the Defendant as follows:
1. A declaration that the procedure adopted by the Defendant in the trial of the Claimant at the Federal Road Safety Disciplinary Panel, did not comply with the Defendant’s FRSC Regulations on maintenance of Discipline, 2013, and that it breached the Claimant’s right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999, amended.
2. A Declaration that the termination of the employment of the Claimant by the Defendant vide the letter dated 12th of November, 2014, without stating any reason, is null and void and of no effect.
3. An Order of this Honourable Court reinstating the Claimant back to work with all his rights and privileges attached thereto, including paying in (sic) to the claimant all due salaries, benefits, allowances, promotions and other benefits that have accrued since the 12th November, 2014.
4. The sum of N10,000,000.00 (Ten Million Naira) only as general damages for wrongful termination of employment, psychological and emotion trauma suffered by the Claimant.
1.2. While the Defendant’s Memorandum of Appearance was filed on the 14th of September, 2015, the Statement of Defence together with Witness Statement on Oath and other processes were filed on the 27th of April, 2016, but deemed by the court on the 13th of July, 2016. The Claimant filed a Reply to the Statement of Defence on the 12th of July, 2016.
1.3. Trial in this suit started de novo on the 2nd of December 2019, when the Claimant opened his case by testifying for himself as CW. He swore on the Holy Bible before identifying and adopting his statement on oath filed on the 12th of February, 2015 and the further deposition filed on the 12th of July, 2016. The following documents were tendered by the claimant and admitted by the court:
a. Solicitor’s letter of Granville Abibo (SAN) & Co. dated 1st December, 2014 ------ exhibit CW1
b. Letter of Provisional Offer of Appointment dated 14th February, 2007 ------ exhibit CW2.
c. Regulation on Maintenance of Discipline, 2013-------------- exhibit CW3.
d. Envelop containing DVD -------- exhibit CW4 (expunged on 28/7/2021 sequel to claimant’s application).
e. Letter of Confirmation of Appointment dated 13th June, 2012----- exhibit CW5.
f. Letter of Termination of Appointment dated 12th November, 2014 ---- exhibit CW6.
The claimant was cross-examined by the defendant’s counsel and discharged without any re-examination. The claimant closed his case on the 28th of July, 2021.
1.4. The Defendant opened its defence on the 7th of October, 2021 by calling its first witness SRC Gabriel Infidon of the Intelligence and Investigation Department of the Bayelsa State Command of the Defendant. The witness who affirmed to speak the truth and spoke in English Language identified and adopted his statement on oath made on the 27th of April, 2016 before tendering two documents which are a Video CD of FRSC Surveillance dated 28th February, 2014 exhibit DW1A, and the FRSC Statement of Witness/Defaulter exhibit DW1B.
The witness DW1 was cross-examined by the claimant’s counsel and discharged without any re-examination.
The defendant’s second witness who testified as DW2 is Superintendent Route Commander Emmanuel Chukwumuanya Ogbolu the Staff Officer Operations(2) RS 5.1 Edo Sector Command of the FRSC. The witness swore on the Holy Bible before identifying and adopting his statement on oath filed on the 27th of April, 2016. He then tendered the CTC of the Report of Investigation Panel for the sitting of 8th of September, 2014 which was admitted as exhibit DW2A. The witness was cross-examined by the claimant’s counsel and discharged without any re-examination.
1.5. With the close of evidence parties were directed to file their final written addresses beginning with the Defendant. While the Defendant’s Final Written Address was filed on the 17th of January, 2022, that of the Claimant was filed on the 22nd of February, 2022. These processes were adopted by counsel on the 17th day of March, 2022, with N. E. Chukwu appearing for the Claimant, while U. C. Ebia appeared for the Defendant.
THE CASE OF THE CLAIMANT:
2.1. The Claimant who was employed by the defendant on the 14th of February, 2007 was accused of misconduct by using a fifth man also known ‘unscheduled person’ by a surveillance team of the defendant while himself and his team were on patrol along the Eleme Port Harcourt Expressway on the 28th of February, 2014. That they were not searched at the point of arrest but when they got to the Office of the Unit Commander the Sector Intelligence Officer searched them but nothing was found on them. That the Hausa boy who was the alleged 5th man denied working with the patrol team but when he was searched they found the sum of N5,500.00 in N500 denomination on him just as the boy had stated. That their phones were used to call the boy’s phone and their numbers were not found in the boy’s phone, and even when the Sector Intelligence Officer Rivers State (Gani Bako) invited an officer from the Department of State Security who interrogated the boy he still denied any connection with the patrol members.
2.2. The claimant avers further that the members of the patrol team were invited by the Federal Road Safety Disciplinary Panel (FDP) at the Headquarters in Abuja and interrogated for 24 days before being released and asked to be reporting to Zone 6 Port Harcourt. That even when the alleged video of the surveillance team made on 28th of February, 2014 was played nothing was seen suggesting that the claimant and/or the other members of the patrol team collected money or made use of a fifth man while on patrol. That they went back and continued their normal work until the claimant received letter of termination on the 1st of December, 2014.
2.3. That while the Regulations on Maintenance of Discipline 2013 requires the attendance of the fifth man or unscheduled man, the fifth man or unscheduled man in this case was not called to testify during the proceeding of the Disciplinary Panel, and the DSS was also not called to testify before the Panel.
2.4. The claimant further avers that while Schedule 1 to Regulation 53 section 16(k) of the Regulations requires the Defendant’s Panel to recommend punishment against any alleged defaulter, he was however not notified of any punishment which was recommended by the Panel and even the verdict of the Panel was not communicated to him. That he has suffered psychological trauma because he has been unable to cater for himself and his aged parents since his employment was terminated.
DEFENDANT’S CASE:
3.1. The Defendant avers that while it is true that it employed the claimant and posted him to the Eleme Unit Command, the claimant was however a habitual defaulter and was queried for gross misconduct on the 4th of May, 2011, and another query for gross misconduct on the 29th of August, 2013, and a warning letter for gross misconduct on the 3rd of October, 2013. That the claimant and his team engaged in irregular patrol activity with an unscheduled person which was partially captured in a video by the Surveillance team. That the claimant’s team interacted with a ‘fifth man’ who took bribe from motorists (tipper drivers) for and on behalf of the claimant’s patrol team. That the standard operational practice of surveillance team is to take the operational staff and the ‘fifth men’ away from the public glare in order to avoid any mob action and not to ridicule the men in uniform.
3.2. That the employment of the claimant was terminated in compliance with the provisions of Federal Road Safety Commission enabling Laws and the verdict was read to the claimant in accordance with the procedure. That the Disciplinary Committee set up by the defendant recommended the termination of the claimant having found him guilty of patrol misconduct and he was informed of his right to appeal the decision of the Disciplinary Panel if he was not satisfied with the outcome but the claimant refused to do that. That the defendant has the power to discipline erring employees in the overall interest of the country.
DEFENDANT’S SUBMISSIONS.
4.1. The learned counsel to the defendant crafted this lone issue for determination, to wit: Whether in the circumstances, the Claimant has established that the termination of his appointment by the Defendant is wrongful to be entitled to the reliefs sought.
4.2. It is submitted on the lone issue that from the Claimant’s pleadings and evidence before the court he did not deny that the operational misconduct for which he was investigated and his appointment was terminated did not violate the Rules and Regulations of the Defendant, but his grudge is that the Defendant did not terminate his appointment in accordance with the provisions of the Defendant's Regulation on Maintenance of Discipline 2013. That a claimant who seeks declaration that the termination of his employment was wrongful must prove that he is an employee of the defendant; the terms and conditions of his employment; the way and manner and by whom he can be removed and the way and manner the terms and conditions of his employment was breached by his employer. See Ujam V. IMT (2007) 2 N.W.L.R (Pt.1019) 470 and Edet V. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41.
4.3. That beyond exhibit CW2 the Claimant did not place anything before the court evidencing the terms and conditions of his employment, and since he failed to tender and lead evidence on the FRSC Conditions and Scheme of Service before this Court, the Court cannot speculate on what the Conditions and Scheme of Service of the Defendant contain or provide for as regards the Claimant’s employment. See Modu Aji V. Chad Basin Development Authority and Anor (2015) 61 NSCQR, 1817 at pp 1865-1875.
4.4. It was further argued that in law he who alleges must prove, and there was no breach of the claimant’s right to fair hearing because he affirmed that himself and the other members of the patrol team went for their trial before the FDP wherein they were examined, cross-examined and the Claimant in particular asked Gani Bako the Sector Intelligence Officer who led the surveillance team questions. That since the claimant admitted that he appeared before the Panel and appealed against the Panel’s recommendation he cannot claim ignorance of the said recommendation of the Panel. See Alhaji Abdullahi Baba V. Nigerian Civil Aviation Training Centre, Zaria and Anor. (1991)5 NWLR (Pt.192) 388 at 418, State V. Onagoruwa (1992)2 NWLR (Pt.221) 33 at 58 and exhibit DW2A (record of proceedings of the panel).
4.5. That since exhibit DW1A the video made during the surveillance exercise which was also pleaded by the Claimant was played for the viewing of the Claimant at the Panel which showed the Claimant and members of the patrol team clearly using an unscheduled person during patrol which amounted to patrol misconduct as provided by the Defendant’s Regulations on Maintenance of Discipline 2013, the claimant was afforded fair hearing. See Emeka V. State (2014)59 NSCQR 125 at 160.
4.6. That even though the Regulations on Maintenance of Discipline 2013 provides for what should be done to a 5th man as in the instant case, compliance is not mandatory on the Defendant because the 5th man was not even an employee of the Defendant. And that it is not in every case that an employee must be arraigned before a court before disciplinary action can be taken against him. See Zenabor V. Bayero University Kano (2009) 17 N.W.L.R (Pt.l169) 96, Okeme V. Civil Service Commission, Edo State (2002)14 N.W.L.R (Pt. 668) at page 6, Arinze V. First Bank of Nigeria Ltd. (2004) AII N.L.R 79, Stephen Izonebi V. Federal Civil Service Commission & 2 Ors (Unreported, suit No: NICN/ABJ/240/2013 and Samson Kehinde Akindoyin V. Union Bank Plc (Unreported Suit No: NICN/LA/308/2013 delivered on April 15, 2015.
4.7. That since declaratory reliefs are not granted on the weakness of the defence but rather on the strength of the Claimant's case, the claimant has failed to prove his case and same should be dismissed for lacking in merit.
CLAIMANT’S SUBMISSIONS.
5.1. The learned counsel to the Claimant submitted these two issues for the court’s determination, to wit:
1. Whether the procedure adopted by the Defendant in it disciplinary panel at Abuja in finding the Claimant culpable accords and abides by its Regulations on Maintenance of Discipline 2013 and the Constitution of the Federal Republic of Nigeria 1999 (as amended);
2. Whether the Claimant has made out a case in this Honourable Court to be entitled to the relief sort(sic).
5.2. It was submitted on issue one (1) that the employment of the claimant enjoys statutory flavour thereby going beyond the notion of ordinary master and servant whose contractual obligation can be effectively brought to an end anytime with damages as the remedy. That by exhibits CW2 and CW5 which are the letters regarding the employment of the Claimant the Claimant's employment was made subject to an Act of the National Assembly. See FRSC V. Idowu (2016) LPELR-40153 and Civil Service Commission Imo State and Ors V. Ukweozor (2017) LPELR-42856.
5.3. That while the Defendant's Regulation on Maintenance of Discipline, 2013 has enshrined in it some principles of fair hearing, in this case the Defendant did not observe its own provisions. That one of the cardinal principles of fair hearing is that everyone should be heard and this includes an opportunity to speak and to cross examine anyone who testifies in the case. Where it is shown that a proceeding breaches the rights of parties to be heard such proceedings are vitiated under the law. See Jeremiah Akoh and Ors V. Ameh Abuh (1988) 3 NWLR (Pt. 85) 698, Otapo V. Sunmonu (1989) 1 NWLR (Pt. 58) 587 and Wilson V. Attn. General of Bendel State (1985) 1 NWLR (Pt. 4) 1.
5.4. That while regulation 51 sub 5 provides that where a report is made against any member of the Corp, the marshal or officer whom the report was made against shall be informed in writing by the appropriate authority, the schedule to regulation 53 (page 39 of Exhibit CW3) provides that the procedure of taking evidence before the Defendant's panel is examination in chief, cross examination and re-examination. Learned counsel referred to the answers elicited from DW1 during his cross-examination on the 29th day of November, 2021 when he affirmed that he did not know the name of the said fifth man alleged to be collecting bribe from motorists for and on behalf of the Claimant and his team. That since DW2 confirmed that the said fifth man never testified before the Defendant’s panel at Abuja, the finding of the panel in exhibit DW2A (the transcript/record of proceedings of the panel) which contains the findings of the panel and recommendation found on page 25 that “the defaulters (Claimant and his team) engaged the services of a fifth man to collect money on their behalf” is not borne out of any evidence made out before the panel. See Ogieva V. Ighinedion (2004) 14 NWLR (Pt. 894) 467.
5.5. That the failure of the Defendant to secure the attendance of the said fifth man to the disciplinary panel robbed the Claimant of the opportunity to comply with the schedule to Regulation 53 and also breached the Claimant’s right to fair hearing. See State V. Yusuf (2007) All FWLR (Pt. 377) 1001 at 1011. That the proviso to regulation 22(h) of exhibit CW3 that a non-member of the Corp involved in patrol misconduct shall be handed over to the Police for prosecution qualifies as an exception or qualification to the provision. See NIPOST V. Adepoju (2003)5 NWLR (Pt. 813) 224 and NDIC V. Okem Ent. Ltd (2004) 10 NWLR (Pt. 880)110 at 185. That the proviso in Regulation 22 (h) of exhibit CW3 precludes the defendant from trying the Claimant whilst letting the fifth man go scot-free because the purport of the proviso under reference is that unless the non-member of the corps who is involved in patrol as fifth man is handed over to the Police for prosecution, the other member/officer of the corps shall not be subjected to any form of trial. See State V. Yusuf (supra) and Kayode V. State (2016) LPELR - 40028.
5.6. Learned counsel referred to paragraphs 3, 4, 8, 9, 10, 12 and 13 of Exhibit DW2A as contained on pages 23, 24 and 25 and posited that the Claimant’s right to fair hearing was breached by the Defendant when it made a finding that the Claimant engage a fifth man without creating opportunity for the said fifth man to appear before the panel for the purpose of being cross-examined by the claimant, and the court should set aside all the finding made in Exhibit DW2A that made reference to the said fifth man and the recommendations thereto.
5.7. With respect to the admissibility of exhibit DW1A (the video clip), it was submitted that by section 84 of the Evidence Act, 2011 the onus remains with the Defence to identify the electronic device used in producing the video and to also prove the other requirements as enumerated in sub section 2 thereto. That DW1 did not certify to the Court either in writing or orally that exhibit DWlA was produced over a period of time the machine that produced it was regularly used in such operations. That the said Exhibit DW1A does not have any evidential value and should be expunged from the records of the Court. See Dickson V. Sylva and Ors (2016) LPELR-41257(SC), Ideh V. Zenith Bank (2020) LPELR-51283(CA) and FRN V. Ojo and Anor (2016) LPELR-45541 (CA). The court was urged to hold on issue one that the procedure adopted by the defendant breached the fundamental rights of the Claimant to fair hearing.
5.8. With respect to issue two (2) it was argued that the Claimant has made out a case to be entitled to his claims in this Court. And that where there is a wrong, there is a remedy. See Arulogun V. C.O.P. Lagos and Ors (2016) LPELR-40190.
5.9. That unless a contract of employment with statutory flavour is properly determined, an order for specific performance or reinstatement will normally be made by the court, meaning that once a finding is made by the trial court that an employment has statutory flavour and termination was wrongly made, the only consequential order is the re-instatement of the employee. See Mohammed M. Alhassan V. Ahmadu Bello University Zaria and Ors (2009) LPELR-8138 and Balogun V. University of Abuja (2003) 13 NWLR (Pt.783) 42. That since the Claimant has made out a case against the Defendant and is entitled to the reliefs claimed in this case, the court should grant the reliefs sought by the Claimant.
COURT’S DECISION:
6.1. Having carefully considered the pleadings, evidence and submissions of counsel to the parties, this court is of the considered view that this suit can be conveniently determined based on this single issue, to wit: Whether from the totality of the evidence before the court the claimant has proved his case to be entitled to the reliefs sought.
6.2. It is however pertinent to note that the learned counsel to the claimant at paragraph 4.14 of the claimant’s final written address objects to the admissibility of exhibit DW1A on the ground that the exhibit is a video CD (a computer generated document) and the defendant did not produce certificate of authentication pursuant to section 84 of the Evidence Act, 2011. It is important to note that despite the seriousness of this objection the defendant did not file any response to it.
6.3. There is no doubt that exhibit DW1A which is the Federal Road Safety Corps Eleme Unit Command Surveillance video CD made on the 28th of February, 2014 is a computer generated document which certificate of authentication pursuant to section 84(4) of the Evidence Act, 2011 is required. Section 84(4) of the Evidence Act, 2011 provides as follows:
“84(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate-
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) above related, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be,
shall be evidence of the manner stated in the certificate; and for the purpose of this section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the persons stating it.”
6.4. I have gone through the records of the court and it is clear that the defendant neither filed any certificate nor gave oral evidence to identify the document and state how it was produced or generated. A computer is defined in section 258(1) of the Evidence Act to mean “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.” The law is clear on the admissibility of computer generated documents as has been decided in a plethora of cases. The production of the certificate is sine quo non to the admissibility of such documents. See Arogom Global Investment Limited V. United Parcel Service Limited (2021) LPELR-52891(CA) which relied on Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 579 and Hon. Henry Seriake Dickson V. Chief Timipre Marlin Sylva & Ors (2016) LPELR-41257(SC). I therefore hold that exhibit DW1A is not admissible and having admitted same the said exhibit DW1A is hereby expunged from the record of the court.
6.5. With respect to the lone issue identified by the court for determination, it may be apposite to state that the onus of proof in this suit lies on the claimant who will fail if no evidence is adduced in the suit. The claimant who asserts must establish or prove his case before the court. See sections 131, 132, 133 and 134 of the Evidence Act, 2011. See also Civil Design Construction Nigeria Limited V. SCOA Nigeria Limited (2007) LPELR-870(SC) at page 16 paras. E – F, Nseobong Nobert Inyang V. China Civil Engineering Construction Corporation Nigeria Limited (2020) LPELR-49694(CA) and M. S. C. Ezemba V. S. O. Ibeneme & Anor (2004) LPELR-1205(SC) where the apex court per Onu JSC held thus at pages 31-32 paras. G – A, “As in civil proceedings it is trite law that he who asserts proves and the onus of proof is on him who will fail if no evidence is given on an issue vide section 135, Evidence Act (ibid). See also Are V. Adisa (1967) NMLR 304.”
6.6. In order to discharge the burden of proof placed on him the claimant gave evidence-in-chief as CW vide his depositions filed on the 12th of February, 2015 and 12th July, 2016 and tendered the documents earlier listed in this judgment. During the cross-examination of the claimant on the 2nd of December, 2019 and 28th of July, 2021, the witness answered that he is aware that the punishment for professional misconduct for which he was alleged to engage in on 28th of February, 2014 is termination of appointment. That even though he was shown a video during the panel sitting at Abuja but he only asked the 5th person to leave their patrol area. That after the sitting of the panel he was asked to return to his zone to serve punishment and while still serving the punishment they were released to the command where their termination letters were sent to them, and he appealed against the termination. That they were not given the opportunity to exhaust the appeal because their salaries were stopped the very month they were issued the termination letters. That since with the termination of his employment his movement in the office is restricted to certain areas he could not lay his hands on the original copy of the records of the panel. He refuted the question that his records with the defendant negates paragraph 7 of exhibit CW2. That when they were apprehended with the 5th man their patrol car was parked close to a police check point which is about one pole distance from where the surveillance team was. That they did not single out lorries to stop and the bookings they made that day were on smaller vehicles. That since he joined the defendant he received query once which was in 2011 and after he answered the query they were asked to cut grass as punishment and nothing was done to them thereafter.
6.7. During the cross-examination of the defendant’s first witness (SRC Gabriel Infidon) by the claimant’s counsel on the 29th of November, 2021 he answered that he is the cameraman of the surveillance team that arrested the claimant for engaging an unscheduled person or 5th man in the discharge of his duties. That he does not know the name of the 5th man and that the 5th man was also arrested by his team but he does not know if any written statement was obtained from the 5th man. That they took the 5th man to the office and not to the Police Station, and he is not aware if the DSS person they invited took written statement from the 5th man. That the claimant was issued a written query by the Commanding Officer. The witness affirmed that he did not testify before the Disciplinary Panel at Abuja, and he would not know if the 5th man testified before the Disciplinary Panel. That he does not know if the 5th man was charged to court for any crime in Port Harcourt Command. That from the video the claimant was seen picking N500 notes from the floor and upon the arrest and search of the 5th man the sum of N5,5000,00 was found on him but nothing was found on the claimant. That a report of the investigation by his team was made and submitted to the office.
6.8. During the cross-examination of the defendant’s second witness (SRC Emmanuel Chukwumuanya Ogbolu on the 29th of November, 2021, the witness answered that page 23 of exhibit DW2A has findings and observations as a sub-head, and page 24 paragraph 4 of exhibit DW2A says that the patrol team engaged the services of a 5th man to collect money from tipper drivers on their behalf. That he cannot recall the name of the 5th man who did not testify before the panel, but that on the date of the incident the 5th man was also arrested and he made a statement. That the panel found that from the video the 5th man was always seen within the vicinity. He affirmed that he was not part of the team that made the arrest and what he told the court were based on what the surveillance team that made the arrest told him. That proceedings of disciplinary panels are usually submitted to the Disciplinary Section in the Admin and Human Resources Department which liaises with the Legal Department, and his job is only to deliver the report to the Office. That it is the Corps Marshall that issues dismissal letters after the conclusion of the processes by the Admin and Human Resources (AHR) and the Legal Unit. That he does not have any instance of the alleged contradictions in the testimonies of the claimant and his team as alleged in No. 9 of page 34 of exhibit DW2A. That he could not remember if himself and the team at the panel asked the claimant the reason he was always going into the bush as alleged in the report.
6.9. The facts of the claimant’s employment with the defendant are not in issue because the defendant has not denied employing and confirming the claimant’s appointment as evidenced by exhibit CW2 which is the Provisional Offer of appointment dated 14th of February, 2007 and exhibit CW5 which is the letter of confirmation of appointment dated 13th of June, 2012. That being the case, the issue of the claimant’s appointment and confirmation by the defendant does not require any further proof in this suit. See Lingo Nigeria Limited V. Artco Industries Limited (2020) LPELR-51744(CA), Our Line Limited V. S.C.C. Nigeria Limited & Ors. (2009) LPELR-2833(SC) and Federal University of Technology Minna, Niger State & Ors. V. Bukola Oluwaseun Olutayo (2017) LPELR-43827(SC), where the apex court per Eko, JSC held thus at page 5 paras. E – F, “The law is trite: Facts not disputed are taken as admitted and/or established. They accordingly require no further proof. Admitted facts are, usually regarded as the best evidence: DIN V. AFRICAN NEWSPAPERS OF NIG. LTD (1990) 2 NSCC (pt.2) 313.”
6.10. I have seen that the protest of the claimant is with respect to the termination of the claimant’s appointment vide exhibit CW6 on the ground that the investigation that led to the termination of his appointment violates Regulation 22(h) of the defendant’s Regulations on Maintenance of Discipline, 2013 (exhibit CW3). The letter of termination of appointment (exhibit CW6) is hereunder reproduced for the purpose of clarity.
Our Ref: FRSC/HQ/AHR/696/VOL.II/83 12 November, 2014
RMAI, ELOM DAVID OBETEN
M-0702-08736
Ufs:
The unit Commander,
Federal Road Safety Corps,
RS6.11
Eleme Unit Command
Rivers State
TERMINATION OF APPOINTMENT
The above subject refers.
2. Your services with the Federal Road Safety Commission are no longer required. Your appointment is hereby terminated with immediate effect.
3. You are to surrender all FRSC properties in yours possession to your Commanding Officer who will clear you of same and any other indebtedness to the Corps.
4. You are advised to report to the HOD (F&A) RSHQ, Abuja for your entitlement(s) if any.
5. Wishing you success in your future endeavour.
ACM, Stephen G. Maitizumahs
Assistant Corps Marshal
Ag. Head (AHR)
6.11. Since from page 25 (Recommendations) of exhibit DW2A the claimant’s appointment was terminated in line with the provisions of Article 22(h) of the FRSC Regulation on Maintenance of Discipline, 2013 (exhibit CW3), it may also be apposite to reproduce the said provisions of Article 22(h) of exhibit CW3.
“22 Any member of the Corps who:
(h) While on patrol, engages the services of an unscheduled person to collect, keep or hide money or any other item shall be guilty of gross misconduct and liable to termination of appointment, and in the case of an unscheduled person who is a member of the Corps, he shall also be guilty of gross misconduct and liable to termination of appointment. Provided that a non member of the Corps involved in this patrol misconduct shall be handed over to the police for prosecution.”
6.1. I have held in this judgment that the onus of proof in this suit is on the claimant who is alleging wrongful termination of his employment. The trite legal position is that in the circumstance of this case where the claimant is challenging his termination from service as being wrongful, he is expected to place before the court the terms and conditions of his employment, and show in what manner those terms and conditions were breached by the employer. See Agbolade Babatunde Osiyemi V. Societe Generale Bank Limited (2000) LPELR-10359(CA), Kewalram Nigeria Limited V. Olugbenga Rosiji (2019) LPELR-49696(CA), John Holt Plc V. Mr. Echezona Nzeribe (2018) LPELR-44943(CA), Francis Adesegun Katto V. Central Bank of Nigeria (1999) LPELR-1677(SC), First Bank Plc V. Ibrahim Sani Momoh (2020) LPELR-51517(CA) and Augustine F. I. Ibama V. Shell Petroleum Development Company of Nigeria Limited (2005) LPELR-1381(SC).
6.2. The contention of the claimant’s counsel as submitted on the claimant’s issue one (1) is that the claimant was not given fair hearing because the alleged 5th man who the claimant has consistently described as Hausa Boy did not give his statement and was not handed over to the police for prosecution as provided in exhibit CW3 reproduced above. That the 5th man also did not testify before the defendant’s Disciplinary Panel at Abuja. Let me say that before exhibit DW1A was expunged from the records, I had watched the video where the alleged 5th man gave his name as John from Plateau State. He was seen in the video stretching out his hands and receiving some items from different tipper drivers who were stopped by the claimant’s patrol team. It was because of these exchanges between the 5th man and the different tipper drivers flagged down by the claimant’s patrol team in the presence of the claimant and his team members that the Surveillance Team of the defendant after recording exhibit DW1A (already expunged from the record) arrested the 5th man and the claimant including his team members.
6.3. I have seen that the claimant and his team members appeared before the defendant’s Disciplinary Panel at the panel’s sittings on the 8th of September, 2014, 13th of October, 2014 and 14th of October, 2014 where they had the opportunity to make their representations and also cross-examined the defendant’s Investigating Officer who arrested the claimant and his team members on the 28th of February, 2014. While the statement written by the claimant upon his arrest is in evidence as exhibit DW1B, exhibit CW1 is the letter of his solicitors to the defendant dated 1st of December, 2014.
6.4. Having appeared before the Defendant’s Disciplinary Panel and made his representations and also cross-examined the Investigating Officer Gani Bako who led the Surveillance Team that arrested the claimant and his team members as can be gleaned from exhibit DW2A, I hold that the claimant was afforded the opportunity to exculpate himself of the patrol misconduct made against him. The contention that the 5th man ought to have been handed over to the police for prosecution as provided in Article 22(h) of exhibit CW3 is of no moment. The rationale for the proviso in the said provision is simply because since a 5th man or unscheduled person is not an officer of the defendant to be subject to the disciplinary procedures of the defendant that is why it is provided that he should be handed over to the police being an investigating and prosecuting agency. The provision of Article 22(h) of exhibit CW3 has adequately provided for the punishment to be meted out to any officer who engages an unscheduled person while on patrol, and also for an officer of the defendant who allows himself to be engaged as an unscheduled person.
6.5. While I agree with the trite argument of the claimant’s counsel that in an employment with statutory flavour as the instant one the employer must strictly adhere to the disciplinary procedure, I have however not seen any such infringement of exhibit CW3 and the claimant has not placed any such infringement before the court. The argument that he was denied fair hearing is not in agreement with the evidence on record. I so find and hold. See Appeal No. CA/IL/20/2021 between Mr. Victor Adegboyu V. United Bank for Africa delivered on the 14th of April, 2022 and James A. Ikuma V. Civil Service Commission Benue State & Ors (2012) LPELR-8621(CA).
6.6. In the circumstance and for the reasons given above, I find no merit in the case of the claimant. This suit is accordingly dismissed for want of proof.
I make no order as to cost.
Judgment is entered accordingly.
Hon. Justice P. I. Hamman
Judge
REPRESENTATION:
N. E. Chukwu for the Claimant.
U. C. Ebia for the Defendant.