IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Date: July 25, 2022 Suit No: NICN/PHC/109 /2020
Between:
Dr. Dirialakeibama Jumbo Stephens, Esq --------------------------- Claimant
And
1. Rivers State Judicial Service Commission
2. Attorney-General of Rivers State --------------------------- Defendants
Representation:
C.I. Enweluzo (SAN) with C.C. Azogu (Mrs.), O.G. Tony – Ogidi (Mrs.) and V. O. Salami for the Claimant.
Prof Zacchaeus Adangor (SAN) A. G. & Com. for Justice, Rivers St. with C.N. Eke Legal Officer and Success Gilbert, State Counsel, Rivers St. Ministry of Justice for the defendants.
COURT’S JUDGMENT
1. On September 8, 2020 the claimant sued the defendants seeking for the following reliefs:
i. A Declaration that the purported audit carried out by the Independent/External Auditor at the behest of the Defendants over the activities of the Rivers State Customary Court of Appeal for the period spanning August 2013 to May 2015 was carried out without lawful authorization and in violation of the express provisions of the 1999 Constitution of the Federal Republic of Nigeria (As amended), the Public Service Rules as well as other extant laws in the corpus juris of Nigeria.
ii. A Declaration that the Panel of Enquiry proceedings of May 29, 2020 instituted at the behest of the Defendants was carried out in gross violation of the Claimant’s right to fair hearing and contrary to the provisions of the extant Public Service Rules as well as the 1999 Constitution of the Federal Republic of Nigeria (As Amended).
iii. A Declaration that the purported dismissal of the Claimant as Chief Magistrate Grade I of the Rivers State Judiciary on the 19th of June, 2020 by the Defendants and accompanying directive to refund the sum of ₦751,121,027. 34 (Seven Hundred and Fifty-One Million, One Hundred and Twenty-One Thousand, and Twenty-Seven Naira, Thirty-Four Kobo) being money purportedly unaccounted for by the Claimant was unlawful, null and void and in contravention of the Claimant’s constitutional right to fair hearing as well as being scandalous to the person and reputation of the Claimant.
iv. A Declaration that the Defendants are liable to repay the Claimant the totality of salaries and allowances as well as all other benefits being due and payable to the Claimant as an officer of the Rivers State Judiciary from the date of his unlawful and/or wrongful dismissal from office – being the 19th of June, 2020 – until his reinstatement back into office in line with the applicable salary grade level in Rivers State for Chief Magistrate Grade I.
v. An Order of this Honourable Court setting aside the unlawful and/or wrongful dismissal of the Claimant as well as the accompanying directive to refund the sum of ₦751,121,027. 34 (Seven Hundred and Fifty-One Million, One Hundred and Twenty-One Thousand, and Twenty-Seven Naira, Thirty-Four Kobo) as contained in the purported dismissal letter of 19th June, 2020 issued by the Defendants herein to the Claimant.
vi. An Order of this Honourable Court reinstating the Claimant as a Chief Magistrate Grade I of the Rivers State Judiciary.
vii. An Order against the Defendants to pay to the Claimant all salaries, allowances as well as all other benefits due and payable to the Claimant as an officer of the Rivers State Judiciary from the date of his unlawful and/or wrongful dismissal from office until his reinstatement in line with the applicable salary grade level in Rivers State for Chief Magistrate Grade I.
viii. An Order of perpetual injunction of this Honourable Court restraining the Defendants either by themselves or through their agents, privies, servants or other representatives or others acting at their instance or instruction from forcefully retrieving from the Claimant any and all articles assigned to the Claimant in his capacity and position as an officer of the Rivers State Judiciary or otherwise harassing and/or intimidating the Clamant.
ix. An Order directing the 2nd Defendant or his principal in agency, the Executive Governor of Rivers State to, with immediate effect, swear in the Claimant as a judge of the Rivers State High Court in accordance with the recommendation of the National Judicial Council.
x. An Order directing the Defendants to pay to the Claimant the sum of ₦100,000,000.00 (One Hundred Million Naira) being damages for the inconvenience, pain and humiliation suffered by the Claimant as a result of the Defendants’ sundry acts of harassment and subsequent unlawful and/or wrongful dismissal of the Claimant from office.
Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their Statement of Defence together with other processes in compliance with the Rules of this Court.
2. The Case of the Claimant as Pleaded
The case of the claimant in his pleadings is that he was an officer of the Defendants, as a Chief Magistrate Grade I in Rivers State Judiciary. That sometimes in the past, he was deployed away from the courts vide an appointment of the 1st Defendant to serve as the Chief Registrar of the Rivers State Customary Court of Appeal. He went on that he occupied this position until he was redeployed back to the Chief Magistrate Court, Rivers State. The Claimant continued that upon his redeployment, he prepared and submitted a handover brief, detailing his years of service in his position as Chief Registrar Customary Court of Appeal. Thereafter, he was shortlisted for and recommended by the National Judicial Council for appointment/swearing-in as a Judge of the Rivers State High Court with swearing-in to be carried out by the Governor of the State.
3. The pleadings continued that the swearing-in was never carried out as he was confronted with the purported findings of an “Independent Audit” and unfounded allegations of “unaccounted” sums of money during his time as Chief Registrar of the Rivers State Customary Court of Appeal five years after he departed the said office. The claimant maintained that he was never given a copy of the said independent audit neither was he allowed access to relevant documents on the audit. That he was subjected to several Panels set up by the 1st Defendant before he was dismissed without reasonable cause on June 19, 2020 amid a myriad of allegations of purported corruption and abuse of office and then mandated to refund a total sum of ₦751,121,027.34 being the alleged sum he was supposed to have been found to have failed to account for.
4. The Case of the Defendants as Pleaded
The Defendants’ case is that the Claimant was formerly in the employment of the 1st defendant as Chief Magistrate Grade I, the said employment was terminated in accordance with extant Public Service Rules. That, following the redeployment of the claimant from the office of the Chief Registrar of the Rivers State Customary Court of Appeal to Chief Magistrate Grade I, the handover notes submitted by him to the Acting President of Rivers State Customary Court of Appeal was referred to the 1st defendant’s Judiciary Senior Staff Committee (JSSC) for vetting and verification. The Claimant who appeared before the said Committee was questioned on the finances of the Rivers State Customary Court of Appeal during his tenure as Chief Registrar thereof.
5. The defendants continued their pleadings that the reference to the financial accounts of the Rivers State Customary Court of Appeal during the tenure of the claimant as Chief Registrar by a firm of Independent External Auditors (Messrs Ezenwa Okoro & Co.) and the conduct of the External Audit by the Accounting Firm revealed that the sum of N751,121,027.34 (Seven Hundred and Fifty-One Million, One Hundred and Twenty-One Thousand, and Twenty-Seven Naira, Thirty-Five kobo) only was unaccounted for. The defendants went on that following the submission of the Report of the Independent Auditors, the JSSC sat on the report and after extensive consideration of the Audit Report, accepted the findings and recommendations. The pleaded further that the dismissal of the claimant complied with the Rules of Natural Justice and all extant regulations, particularly the Public Service Rules.
During hearing of the case on the July 5, 2021 counsel to the parties agreed to argue this case on record, under Order 38 Rule 33 of the NICN (CP) Rules, 2017. The court subsequently directed counsel to the parties to file their respective final written addresses in line with the Rules of this Court, stating with the claimant’s counsel and they complied with the said direction.
6. Claimant’s Final Written Arguments
In the Claimant's Final Written Address at page 558 of the record, his counsel raised the following issues for the determination of the court:
i. Whether the purported independent audit, carried out by and at the behest of the Defendants, and pursuant to which the Claimant herein was dismissed, was not carried out unlawfully, unconstitutionally and in clear violation of the express provisions of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and the extant Financial Regulation.
ii. Whether the purported dismissal from the office of the Claimant by the Defendants was not unlawful, null and void and in violation of the extant Public Service Rules governing the Claimant’s employment with the 1st Defendant as well as breach of his Constitutional rights to fair hearing.
iii. Whether the failure of Rivers State Government to swear-in the Claimant as a Judge of High Court of Rivers State after due recommendation of the National Judicial Commission is not unlawful.
iv. Whether the Claimant is entitled to a grant of his reliefs sought in this suit.
7. Arguing issue one, counsel submitted that the question that demands answering is: “can it be said that a valid audit was carried out by the Defendants over the said body where the Claimant served in his position?” Is there even an audit report in existence?
Counsel referred the Court to the letters of February 4, 2020 sent to the Claimant for his response that this letter did not attach the said “Audit report” alluded to, neither did it state which independent and/or external auditor carried it out. Irrespective of the propriety of this, what is established according to the claimant is that the 1st Defendant itself alluded to the fact that an “Independent Auditor”, and not the Auditor-General of the State or any individual authorized by him carried out the said audit. This admission is important to the claimant because it lays the foundation for the conversation around the legality or otherwise of that audit; referring to paragraph 36 of the Claimant’s Statements of Claim, which has its respective paragraph of deposition on oath in evidence.
8. Referring to Section 125 (2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended); the above provisions of the 1999 Constitution are reiterated verbatim et literatim in the Audit Law of Rivers State, Cap 13, Laws of Rivers State, specifically Section 4, which directly reproduces, save a few additions of section 125 of the 1999 Constitution. Counsel submitted that only the Auditor-General of a State is authorized by law to audit the accounts of courts in the State. That the eventual dismissal of the Claimant based on the purported findings of the said Audit Report cannot stand in the face of glaring unconstitutionality and due to the fact that the audit being referred to by the 1st Defendant was not one carried out by the Auditor-General of the State or an approved External Auditor listed in the office of the Auditor-General of Rivers State, citing Amalgamated Trustees Ltd. v. Associated Discount House Ltd. [2007] LPELR-454 (SC).
9. Furthermore, counsel noted that the Auditor-General queried the said Audit Report upon which the Claimant’s dismissal was founded referring the Auditor-General’s letter and accompanying Comment dated April 30, 2020 which was relied on by the Defendants as well the Claimant herein. (Doc. JSC 7) and also referred the Court to the cases of: Umar v. Geidam [2019] 1 NWLR (Pt. 1652) 29 @ pp. 49 paras A-B; Jibril V. Mil. Admin. Kwara State [2007] 3 NWLR (Pt. 1021) 357 @ pp.382 paras. A-C; The A.-G., Abia State V. A.-G. Fed. [2002] 6 NWLR (Pt. 763) 264 @ P.479 paras C-E); Williams & Ors. v. Ascon Oil Co. Ltd. & Ors. [2018] LPELR-44107 (CA) and Akande-Adeola & Anor. v. Segun & Ors. [2015] LPELR-40031 (CA) to the effect that it is settled law that “where a statute prescribes or dictates a particular procedure or time for doing a thing, there is no other way, time and procedure of doing it other than the way prescribed by the particular statute.”
10. Arguing issue two of whether the dismissal of the claimant was not unlawful, null and void for in violating the Public Service Rules and the Constitution of the FRN, 1999 (As Amended), counsel referred the Court to document Doc. J16, Rules 030401 to 030403, Rules 030302 to 030307 of the Public Service Rules and submitted that these provisions of the Public Service Rules have also been given Judicial backing time and time again; relying on the following cases: Okocha v. C.S.C. Edo State [2004] 3 NWLR (Pt. 861) 494 Pp. 513-514, paras. H-G and Garba v. University of Maiduguri [1986] 1 NWLR (Pt. 18) 550.
11. In addition, counsel submitted that the procedure meted on the Claimant by the Defendants as far as his dismissal from service is concerned is irregular, void and liable to be set aside, citing Ojabor v. Hon. Minister of Communications & Ors. [2018] LPELR- 44257 (CA) and Ombeh v. Bayelsa State Judicial Service Commission, Unreported Suit No: NICN/YEN/427/2016 where this Honourable Court per Honourable Justice Bashar A. Alkali held that the dismissal of the Claimant therein from office as a Chief Magistrate, Grade 1 is wrongful, null and void due to the non-compliance with the provisions of the Public Service Rules. Ojabor v. Hon. Minister of Communications & Ors. [2018] LPELR- 44257 (CA) and Comptroller General of Customs & Ors. v. Gusau [2017] 18 NWLR (Pt. 1598) p.23.
12. Counsel went on to argue that the steps adopted by the Defendants in the dismissal of the Claimant falls short of the procedure provided by the Public service, which governed the employment of the Claimant and for which the 1st Defendant alleged that the Claimant has contravened. That by the Public Service Rules, where an officer is accused of a serious misconduct and which conduct is likely to result in his/her dismissal from office, then the Commission may cause an investigation to be made into the matter and the officer shall be entitled to know the whole case made against him/her while also being afforded adequate opportunity of making his/her defence. Counsel contended again that the Claimant herein was not provided with a copy of the Audit Report on which the 1st Defendant was relying to make its accusation of serious misconduct against him. He (the Claimant) was also not allowed access to the relevant records and account books of the office which he occupied as to allow him make an adequate response to the accusations against him.
13. Counsel submitted that the Public Service Rules also lays down the procedure to be followed in Sub-rule (vi) of the same Rule 030307. That none of the requirements were complied with throughout the process and period leading to the Claimant’s dismissal as no proper query was issued, no access to documents granted, no provision of the audit report given to the claimant and no opportunity to put questions to witnesses (including the supposed External Auditor) provided. Counsel continued that the Defendants constituted Panels of inquiry, which were headed and superintended over by officers of the Defendants themselves, thereby being both accuser and judge given the peculiar fact that the Defendants had all been staff of the 1st Defendant; citing E. P. Iderima v. Rivers State Civil Service Commission [2005] 16 NWLR (Pt. 951) 378; Gould v. Stuart [1896] A.C. 575; Registered Trustees of the Planned Parenthood Federation of Nigeria v. Shogbola [2015] 62 NLLR (Pt. 216); Iderima v. Rivers State Civil Service Commission (Supra), Obeta v. Okpe [1996] 9 NWLR (Pt. 473) 401.
14. Arguing issue three of whether the failure of Rivers State Government to swear-in the Claimant as a Judge of High Court of Rivers State after due recommendation of the National Judicial Commission is unlawful, counsel referred the Court to Doc. J10 & Doc. J11), Section 271(2) of the 1999 Constitution and submitted that the Governor and the Government of Rivers State is in no legal position to refuse to swear-in the Claimant as the place of a swearing-in ceremony is only the crown or crystallization of a process which has undergone its legal progression and thus has already been completed. Counsel went on that the law is trite that the effective date on which a judicial appointment takes effect is the date of appointment and not the date of swearing-in, citing Ogbunyiya & Ors. v. Obi Okudo & Ors. [1979] All NLR 105 at 116; Our Line Ltd. v. S.C.C (Nig.) Ltd. [2009] All FWLR (Pt. 498) 210.
15. Counsel argued also that once a Legal Practitioner is appointed a Judge of the High Court of a State by the National Judicial Council, swearing-in of that person in compliance with Section 290(1) of the 1999 Constitution (As Amended) by the Governor of the State is purely a ministerial duty or act, citing Amasike v. Registrar-Gen, C. A. C [2006] 3 NWLR (Pt. 968) 462 at P.501 paras - B-D. That in the instant case, the Executive Governor of Rivers State has the ministerial duty to swear-in the Claimant as a Judge of the High Court of Rivers State. In other words, the Executive Governor of Rivers State has no discretion in the matter and he is duty-bound to swear-in the Claimant as a Judge of the High Court of Rivers State, citing Amasike v. Registrar-Gen, C. A. C (Supra). That having published the 1st Claimant’s appointment in the National Dailies as well as being duly communicated to the Governor of the State, he submitted that, no other discretion exists as being exercisable by the said Governor with respect to refusing the 1st Claimant’s swearing-in.
16. To counsel, the claimant's other reliefs are not in conflict with the relief for his reinstatement as a Magistrate Grade 1 of the Rivers State Judiciary because, it is central to his reputation and dignity as a potential judge of the High Court of Rivers State and that the illegal act of the 1st Defendant is set aside and the status quo restored before your Lordship proceeds to make an order for his swearing-in.
17. Arguing issue four of whether the Claimant is entitled to his other reliefs, counsel submitted that it is the position of the Court of Appeal pursuant to the case of Obeta v. Okpe [1996] 9 NWLR (Pt. 473) 401 that a person appointed to a post for a term by statute has a right to serve out the statutory term of his appointment unless during the period, he is guilty of misconduct or if the body or institution he is appointed to serve dies or ceases to exist. Counsel also referred the Court on the same principle to the cases of Igwilo v. CBN [2000] FWLR (Pt. 18) 265; Ajayi v. Texaco Nigeria Ltd. [1987] 3 NWLR (Pt. 62) and Gov. Kwara State & Anor. v. Alhaji Ojibara & Ors. [2007] All FWLR (Pt. 348) 864. Counsel submitted that the Claimant, having been appointed to his office as a Magistrate Grade 1 of the Rivers State Judiciary, have a legally protected right to complete his term. The exception is where there is a proven case of misconduct.
18. In addition to reliefs for orders of this Court setting aside the purported audit as well as the dismissal resulting therefrom, counsel submitted that the Claimant herein is seeking for an order of the Court reinstating him into his office as a Chief Magistrate Grade 1 in Rivers State Judiciary. To counsel, the Claimant has made out a case for a grant of the reliefs as same follows declarations on the impropriety of his dismissal. The Claimant is also entitled to an award of damages in his favour in light of the exceptional ignominy, hurt and humiliation which they have suffered at the hands of the Defendants; citing Fadeyi & Anor. v. Owolabi & Anor. [2014] LPELR – 44702 (CA).
19. Defendants' Written Arguments
At page 679 of the record is the Final Written Address of counsel to the defendants, in which he formulated the following issues for determination of the Court:
i. Whether the dismissal of the claimant by the defendants from the employment of the 1st defendant as a Magistrate for serious misconducts followed the due process of law and is therefore valid?
ii. Whether the claimant was afforded fair hearing by the defendants with respect to the allegation levelled against him before his dismissal from the employment of the 1st defendant?
iii. Whether in all the circumstances, this suit is liable to be dismissed by the Honourable Court?
20. Arguing the first issue, counsel noted that from the onset that the Letter of Dismissal was issued to the claimant by the 1st defendant, dated June 19, 2020 and with Reference No: RS/JUD/C. 1297/S.I/96; it is clearly stated that the dismissal of the claimant was based on “acts of serious misconduct on your part, arising from misappropriation, embezzlement of funds under your care as Chief Registrar, Customary Court of Appeal in contravention of applicable Public Service Rules.” Counsel submitted that the 1st defendant was vested with Constitutional power and authority to exercise disciplinary control over the claimant (including dismissal from service) who at all times material was a staff of the 1st defendant citing section 197 and Part II, paragraphs 5 & 6 (c) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). He went on that the claimant, who was at all times material the Chief Registrar of the Customary Court of Appeal of Rivers State, was a public servant in the public service of Rivers State and that the applicable Rules to this matter are the Public Service Rules, 2008 citing Ehigie v. Edo State Judicial Service Commission [2017] LPELR – 42022 (CA)1 @ 30 -33.
21. Counsel went on that in exercising its disciplinary control over the claimant in accordance with paragraph 6 (c) Part II of the Third Schedule to the 1999 Constitution, the 1st defendant is not limited or restricted to any particular source of information relating to infraction or breach of any provision of the Public Service Rules by the claimant. To counsel, even if the information or facts relating to perceived infraction or violation of the Public Service Rules by the claimant were obtained unlawfully or illegally by the 1st defendant, such facts, information or evidence could not be excluded or invalidated by the Court on ground of technicality or legalism, citing Section 14(a) & (b) of the Evidence Act, 2011. He continued that the settled principle of law is that where a piece of evidence is relevant to the facts in issue in the proceedings, the trial Court is entitled to rely on it, irrespective of the fact that the evidence was obtained by the party seeking to adduce it improperly or in clear violation of the provisions of an extant law including the Constitution. Counsel referred the Court to the cases of: Asuquo v. Eyo [2014] 5 NWLR (Pt. 1400) 247 @ 264; Ibrahim v. Ogunleye [2012]1 NWLR (Pt. 1282) 489; John v. State [2013] LPELR – 20536 (CA)1 @ 29-30; Kuruma v. Queen (1955) AC 197 @ 203 and Daniel Kekong v. The State [2017]18 NWLR (Pt. 1596) 108 @ 135.
22. Counsel submitted further that section 4 (10) of the Audit Law of Rivers State, Cap. 13 Laws of Rivers State of Nigeria, 1999 is a non-existent law which has been repealed by the Rivers State House Audit Law No. 2 of 2020 vide Section 35 thereof. He went on that assuming without conceding that the Audit Report by the Accounting Firm of Messrs Ezenwa Okoro & Co., (S/No. 3 on our List of Documents) is tainted with violation of Constitutional or other statutory provisions, that fact ipso facto, does not render the Report illegal or worthless. He submitted again that the Audit Report remains legally admissible evidence on which the Court is entitled to rely and that the Court is respectfully invited to place reliance on the Audit Report captured at S/No. 3 on defendants’ List of Documents (D3).
23. Responding to the Report of the State Auditor-General of April 30, 2020 and captured at S/No. 7 of Defendants’ List of Documents (D7) to the effect that, “We also observed that the office of the Auditor-General was not consulted before the appointment of the Auditors as required under section 125 of the Constitution …” counsel submitted that there is nothing in section 125 of the Constitution of the Federal Republic of Nigeria, 1999 that obligates the 1st defendant to inform or consult the office of the Auditor-General of Rivers State before appointing external auditors to audit the account of the Customary Court of Appeal of Rivers State.
24. Responding to the claimant's argument in his issue 4.3 at paragraphs 6.0 – 6.22 of claimant’s Final Written Address, counsel submitted that Rule 030403 of Section of 4 of the Public Service Rules, 2008 that disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306 of the Public Service Rules 2008. That the defendants complied strictly with the applicable provision of the Public Service Rules on the conduct of the disciplinary proceedings that led to the dismissal of the claimant.
25. Arguing issue two on whether the claimant was afforded fair hearing, counsel submitted that the burden of proving denial or breach of fair hearing lies on the party who so alleges, citing Bill Construction Limited v Imani & Sons Limited/Shell Trustees Ltd. [2006] LPELR 786 (SC) and Adedeji v Police Service Commission [1967] 1 All NLR 67. Counsel referred the Court to paragraphs 16(b) and 18 of the Defendants’ Joint Statement of Defence that the claimant was not only invited to appear before the Independent External Auditors but also that the Report of the External Auditors was communicated to the claimant and he was directed to respond thereto. It was claimant’s access to the Report that enabled him to respond to the query. Counsel went on that this crucial averments in their pleadings was also confirmed by the written deposition of their sole witness, referring to paragraphs 20, 38(b) and 40 of the Written Statement on Oath of Victor Ugoji, Esq). He went on that these averments were not specifically denied or traversed by the claimant. Indeed, in his response to the query vide his letter dated February 7, 2020 (frontloaded as S/No: 5 on the Defendants’ List of Documents) the claimant did not deny communication of the Report of the External Auditors to him.
26. Arguing issue three on whether this suit is liable to be dismissed, counsel submitted that a declaratory reliefs are discretionary and are not granted as a matter of routine but only on hard facts demonstrating the claimant’s entitlement thereto. He maintained that an applicant must establish the existence of a legal right before he can be granted either declaratory or injunctive reliefs, citing Ayida v. Town Planning Authority [2013] LPELR – 20410 (SC) 1@ 35-37. Counsel went on that from the totality of the facts as pleaded and the documents frontloaded, the claimant has failed to make out a case to entitle him to the grant of the reliefs sought.
27. Claimant's Reply on Points of Law,
On whether the purported Audit Report of Messers Ezenwa Okoro & Co. (DOC 3) upon which the dismissal of the Claimant was predicated has any probative value in the face of the glaring illegality which fraught the audit process, counsel submitted that Section 14 of the Evidence Act relied on by the Defendants’ Counsel is one which cannot aid the Defendants in giving any probative value to the Purported Audit report of Messers Ezenwa Okoro & Co. (i.e., D3 of the Defendants’ list of documents). He further referred the Court to Abdullahi & Anor v. INEC & Ors [2019] LPELR-49174 (CA) Per Peter Olabisi Ige, JCA (Pp. 43 – 45, Paras C - A). He went on that Doc. 3 (Audit Report of Messers Ezenwa Okoro & Co.) which is glaring in contravention of the provisions of Section 125(2) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) cannot be said to be a piece of evidence of which the desirability of admitting same out-weighs the undesirability, following the decision of the Court of Appeal.
28. On whether the Claimant was accorded fair hearing by the Defendants, counsel submitted that the 1st Defendant clearly breached the principle of natural justice -nemo judex in causa sua and further referred the Court to section 36(1) of the 1999 Constitution (As Amended); Head of the Federal Military Government v. Nwachukwu, Ex.P. Umukoro [1976] NMLR 151; and M.C Okany, Nigerian Administrative Law (Onitsha: African First Publishers Ltd. [2007] PP.258-263 and Chiokwe v. State [2012] LPELR-19716 (SC) (Pp 23 - 23 Paras A - A)
On whether the failure of the Defendants to respond to Issue 4.4 of the Claimant’s Final Written Address, which bothers on Relief (ix) of the Claimant’s Claims is not deemed admitted, counsel maintained that the failure of the Defendants to respond to the submissions as contained in paragraphs 7.0, 7.1, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11 and 7.12 of the claimant’s Final Written Address, which bothers on relief (ix) endorsed on the Form of General Complaint as well as the Statement of Facts place before this Court, is an admission of the truth of the submissions therein.
29. COURT’S DECISION
I have carefully read through the facts of this case as pleaded by both parties, the documents frontloaded and relied upon by the parties in support of their cases and the written arguments of the counsel to the parties together with their cited authorities. Proceedings on this matter commenced on November 9, 2020. On December 15, 2020; this Court suggested to counsel to the parties to consider arguing this matter on record under Order 38 Rule 33 of the NICN (CP) Rules, 2017 in view of the peculiar pandemic of Coronal Virus ravaging the whole world at the material time as a result of which there was serious restrictions on physical contact amongst human beings, see page 4 of the proceedings’ file of the Court. On February 10, 2021 Counsel to the claimant, Sir C. I Enweluzo (SAN) applied that this case be consolidated with its other two sister cases with Suit Nos: NICN/PHC/110/2020 & NICN/PHC/111/2020 under Order 62 Rule 17(2) of the NICN (CP) Rules, 2017.
30. Counsel to the defendants, Miss L.N.B. Wike, State Counsel, Rivers State Ministry of Justice left the issue of consolidation of the three cases to the discretion of the Court. The Court, exercised its discretion under Order 62 Rule 17(2) of the NICN (CP) Rules, 2017 and consolidated the three cases. See the proceedings of the Court on that date at pages 4 to 6 of the proceedings’ file. On this same February 10, 2021 counsel to the defendants informed the Court that she had no objection to this matter being argued on record. Therefore, the Court directed that the matter will be argued on record under Order 38 Rule 33 of the NICN (CP) Rules, 2017. Counsel to the parties filed their Final Written Addresses after several adjournments and eventually adopted them.
31. It is my considered view that after due considerations of this case as presented by the parties, the following issues will be considered in resolving the dispute between the parties:
i. Was the dismissal of the claimant’s employment by the defendants done legally or he is entitled to re-instatement and payment of all his salaries with other entitlements from when he was illegally dismissed?
ii. Can the Rivers State Government legally decline from swearing-in the Claimant as a Judge of High Court of Rivers State after his due recommendation by the National Judicial Council?
iii. Is the claimant entitled to N1,000,000.00 General Damages?
32. What are the Law & Rules governing the employment relationship between the parties?
It is worthy of mentioning here that both parties agreed that the employment of the claimant with the 1st defendant is with Statutory Flavour and that it was governed by the provisions of Public Service Rules, 2008 and the provisions of the Constitution of the FRN, 1999 (As Amended); see paragraph 6 of the Statement of Facts at page 7 of the record and paragraphs 5.7 and 6.2 of the claimant's Final Written Address at 558 of the Record. See also paragraph 5 of the Defendants’ Statement of Defence at page 107 of the record and paragraph 5.04 of their Final Written Address at page 683 of the record. It is my findings on this score that the employment relationship between the parties is with statutory flavour and that it was governed by the provisions of the Public Service Rules, 2008 and the provisions of the Constitution of the FRN, 1999 (As Amended). Therefore, the rights, duties and liabilities of the parties in this case will be decided primarily on these law and Rules.
33. RESOLUTION OF ISSUE I – WAS THE DISMISSAL DONE LEGALLY
At page 58 of the Court’s record is the Letter of Dismissal, addressed to the claimant by the immediate past Chief Judge of Rivers State High Court, His Lordship, Hon. Justice A. I. Iyayi-Lamikanra. It is dated June 19, 2020 and with Ref. No: RS/JUD/C.1297/S.I/96. Paragraphs two and three of this letter states:
Your dismissal from office which takes immediate effect, follows acts of serious misconduct on your part, arising from misappropriation/embezzlement of funds under your care as a Chief Registrar, Customary Court of Appeal in contravention of applicable Public Service Rules.
In addition, you are to refund the sum of N751,121,027.34 (Seven Hundred and Fifty One Million, One Hundred and Twenty One Thousand, Twenty Seven Naira, Thirty Four Kobo) misappropriated by you.
34. It is the claimant’s contention that his dismissal was not carried out with due process by the defendants; therefore, it is invalid, illegal null and void. On the other hand, the defendants maintained that in dismissing the claimant in the instant case, they followed due process and so, the dismissal is valid and legal. There are facts before the Court showing that the defendants carried out two Audits on the Account of the Customary Court of Appeal for the period that the claimant was the Chief Registrar of that Court, which eventually resulted in the dismissal of the claimant. The first Audit was carried out by an Independent Accounting Firm named Messrs Ezenwa Okoro & Co. and the 2nd one was by a 3-man Internal Audit Panel on the instruction of the Chairman of the JSC, see paragraph 12 (h) and (m) of the Defendants' Statement of Defence.
35. The question is whether auditing the Account of the Customary Court of Appeal by the defendants the way it was done in the instant case is Constitutional?
In other words, is the Audit Report issued by the Accounting Firm of Messrs Ezenwa Okoro & Co (An Independent Auditor), on the Customary Court of Appeal River State for the material time Constitutional? The argument of the counsel to the claimant in paragraph 5.0 of his Final Written Address is that it is illegal for an Independent Auditor to investigate the Handover Note and the account of a Court (Rivers State Customary Court of Appeal) of a State because, such can only be audited by the Auditor-General of the State, relying on section 125 (2 & 3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and the provision of section 4(10) of the Audit Law of Rivers State, Cap 13, Laws of Rivers State. He also cited in support, the case of Amalgamated Trustees Ltd. v. Associated Discount House Ltd. [2007] LPELR-454 (SC).
36. Conversely, counsel to the defendants argued in paragraphs 5.11 and 5.12 of the Defendants’ Final Written Address that the argument of the claimant in respect of the Independent Audit Report is misconceived and that the fact that the said report is tainted with violation of the Constitution does not ipso facto render it illegal or worthless. See paragraph 5.11 of the defendants’ Final Written Address at page 685 of the record. To the defendants’ counsel, there is nothing in section 125 of the Constitution that obligates the 1st defendant to inform or consult the office of the Auditor-General of Rivers State before appointing external auditors to audit the account of the Customary Court of Appeal of Rivers State. He contended further that section 4(10) of the Audit Law of Rivers State Cap. 13 Laws of Rivers State of Nigeria relied on by the claimant’s counsel has been repealed by the Rivers State House Audit Law No. 2 of 2020. The defendants’ counsel did not refer to any law or other authority that allows the defendants to appoint Independent Auditor as they did in this instance.
37. In paragraph 12 (c & d) of the Defendants’ Statement of Defence at 107 to 116 of the record, it is stated that the Judicial Service Commission (the 1st defendant) referred the financial account of the Customary Court of Appeal of Rivers States for the period of August 2013 to May 2015 to an Independent External Auditor of Messrs Ezenwa Okoro and Co. The report of this Independent Auditor is at pages 156 to 218 and 304 to 366 of the record, listed as No. 3 on the Defendants list of Document. It is also listed as Document No.7 on the Claimant’s List of Documents at pages 118 and 276 respectively.
38. Can the Account of a State Court be audited by an Independent Auditor?
Counsel to the claimant answer this question in the negative; going by the provision of Section 4(10) of the Audit Law of Rivers State Cap. 13 Laws of Rivers State of Nigeria, which is the same as those in Section 125 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). Counsel to the Defendants contended that the Audit Law of Rivers State Cap. 13 Laws of Rivers State of Nigeria has been repealed by the Rivers State House Audit Law No 2 of 2020. This Court has no access to the Audit Law of Rivers State Cap. 13 Laws of Rivers State of Nigeria neither has it seen the Rivers State House Audit Law No. 2 of 2020 as none of the Parties frontloaded it to enable the Court verify or confirm counsel’s submissions on them.
39. However, by the provision of Section 125(2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the public accounts of a State and of all offices and Courts of the State shall be audited by the Auditor-General of the State, who shall submit his reports to the House of Assembly of the State concerned and for that purpose the Auditor-General or any person authorised by him in that behalf shall have access to all books, records, returns and other documents relating to these accounts.
40. Section 125 (3) of the Constitution of the FRN,1999 (As Amended) states that nothing in subsection (2) of this section shall be construed as authorising the Auditor-General to audit the accounts of or appoint auditors for government statutory corporations, commissions, authorities, agencies including all persons and bodies established by Law but the Auditor-General shall—
a. provide such bodies with—
(i) a list of auditors qualified to be appointed by them as external auditors, and from which the bodies shall appoint their external auditors, and
(ii) a guideline on the level of fees to be paid to external auditors; and
b. comment on their annual accounts and auditor's reports thereon.
Section 125 (4) of the Constitution of the FRN,1999 (As Amended) states that the Auditor-General shall have power to conduct periodic checks of all government statutory corporations, commissions, authorities, agencies including all persons and bodies established by a law of the House of Assembly of a State.
41. Going by the Constitutional provisions reproduced above, it is my finding that the public accounts of a State particularly that of a Court of the State like in the instant case, can only be audited by the Auditor-General of the State and/or any other person/Auditor authorised by him in that behalf. From the pleadings and documentary evidence of the parties before the court, there is no evidence indicating that Messrs Ezenwa Okoro and Co. the Independent External Auditor in the case at hand was authorised by the Auditor-General of Rivers State to audit the financial account of the Customary Court of Appeal of River State at the material time.
42. Furthermore, the claimant was issued a query based on the Report of the Independent Auditor and he answered the query, raising some vital points in his response. As a result of this, the 1st defendant sent the Report of the Independent Auditor, the query of the 1st defendant to the claimant and the claimant’s response to the State Auditor – General for consideration. The Report of the State Auditor-General thereon is dated April 30, 2020 and it is at pages 225 to 229 of the record. The Report states in part:
We have made several efforts to invite the External Auditor for clarification of some of the issues observed in his report but all efforts proved abortive..........
43. Also at page 226 of the record, the Report states in its first page reflecting the State Auditor –General’s comment that:
We have reviewed the observations made by the independent Auditors: Ezenwa Okoro & Co. (Chartered Accountants) on the above subject matter and wish to make our comments as follows, subject to the time constraint which did not allow us conduct compliance and substantive test on the various transactions observed in the auditors’ report. We did not also have enough time to review the internal control, process flow and due process followed in contract executions.
We also observed that, the office of the Auditor-General was not consulted before the appointment of the Auditor as required under Section 125 of the Constitution….
44. In view of the provisions of Section 125(2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and the Report of the State Auditor- General of April 30, 2020; I hold that the appointment of Independent Auditor (Messrs Ezenwa Okoro & Co.) to audit the account of Rivers State Customary Court of Appeal for the period that the claimant was the Chief Registrar of the that Court, without making the said appointment through the Rivers State Auditor-General was unconstitutional.
45. Was the claimant’s dismissal in compliance with the Public Service Rules?
In their pleadings and written arguments, it is the contention of the defendants that they complied with the provision of the Public Service Rules in dismissing the claimant in this case. It will be expedient; therefore, to look at the procedure followed by the defendants in dismissing the claimant vis a-vis the provisions of the Public Service Rules.
46. In paragraph 12 of the defendants’ Statement of Defence, the defendants aver that the claimant submitted his Hand-Over Note to the 1st defendant on July 14, 2015 after his re-deployment back to the State High Court as Chief Magistrate Gd. I. See pages 41 to 46 of the record for the copy of the Handing-Over Note. On September 14, 2015; the 1st defendant referred the Handover Note to the Judiciary Senior Staff Committee (JSSC) to look into it and submit report within 21 days from the day of its 1st sitting and that if necessary, the JSSC can take any other step to facilitate inquiry. The JSSC then invited an Independent Auditor, the Firm of Messrs Ezenwa Okoro & Co. who found the claimant to have embezzled the sum of N751,121,027.34. The Independent Auditor submitted its report to the JSSC on December 22, 2015 and JSSC submitted its report inclusive of the Report of the Independent Auditor to the 1st defendant on January 9, 2016; see pages 130 to 155 of the record for the report.
47. The Independent Auditor’s report and that of the JSSC were only considered and adopted by the 1st defendant on February 4, 2020. In paragraph 12(g) of the Statement of Defence at page 110 of the record, the defendants aver that the 1st defendant could not consider the report before Hon. Justice Daisy Okocha CJ Rivers State High Court retired. No explanation was given for the inability of the 1st defendant to consider the report then, more so that it was under her that the investigation commenced. The reports of the Independent External Auditors and the JSSC was eventually considered and after extensive deliberations by members of the JSC (the 1st defendant), the report of the Independent Auditor was adopted including its findings and recommendations without any modification. JSC (the 1st defendant) communicated the recommendation of the Independent Auditor to the claimant on this same February 4, 2020; see letter with Reference No: RS/JUD/C. 1297/S.I/95 dated February 4, 2020 at page 219 of the record. The claimant responded to the query on February 7, 2020; see pages 220 to 223 of the record for the response.
48. Thereafter, the 1st defendant referred the report of the Independent Auditor, the query given to the claimant thereon and his answer, to the State Auditor – General at its emergency meeting of March 10, 2020; to review and to regularize the report of the Independent Auditor. The Auditor–General submitted his report dated April 30, 2020 to JSC and found the Independent Auditor’s Report irregular since section 125 of the Constitution of the FRN, 1999 (As Amended) was not complied with in appointing the Independent Auditor. See pages 225 to 229 of the record. The JSC (the 1st defendant) then set up a 3-man Internal Auditor Panel to review the Auditor-General’s report. The 3-man Internal Auditor Panel confirmed the report of the Independent Auditor in its report of May 22, 2020 to the JSC; see pages 402 to 406 of the record.
49. Members of the 1st defendant then met on Friday, June 19, 2020 on all the reports as (Committee of the whole of the Rivers State Judicial Service Commission), invited the claimant and confronted him with these reports. The Commission adopted and approved the report with recommendations as it relate to the claimant and then resolved to dismiss the claimant from his office as Magistrate of Rivers State Judiciary with immediate effect. In addition, the claimant was required to refund the sum of N751,121,027.34 (Seven hundred and fifty-one million, one hundred and twenty-one thousand and twenty seven naira, thirty-four kobo) he was reported to have embezzled. The defendants maintained in their averment still in paragraph 12 of their Statement of Defence that the claimant could not dispute these allegations but that he made some admissions thereon, see paragraph 12(n) (i - v) of the Statement of Defence.
50. It is worthy of note also that the Report of the “Government of Rivers State of Nigeria Committee of the Whole of the Rivers State Judicial Service Commission” at pages 258 to 274 of the record is dated June 9, 2021 as against 19th June 2020 as averred in paragraph 12(o) of the Defendants’ Statement of Defence. It is also to be noted that this report did not recommend the dismissal of the claimant as stated in paragraph 12(o) of the Statement of Defence. It merely recommended that the claimant should refund the alleged sum of money found against him, see page 273 of the record. This notwithstanding, the 1st defendant dismissed the claimant’s employment via letter of dismissal with immediate effect due to an act of serious misconduct arising from misappropriation/embezzlement of funds under him when he was the Chief Registrar, Customary Court of Appeal of Rivers State, see page 62 of the record.
51. From all of these facts enumerated above as pleaded by the defendants in their paragraph 12 of their Statement of Defence, it is my considered view that the disciplinary procedure of the 1st defendant in dismissing the claimant is required to comply with the provisions of Rule 030403 of the Public Service Rules and this procedure shall be in accordance with Rules 030302 to 030307 of the Public Service Rules for serious misconduct like the one against the claimant.
52. On dismissal of Officers/Employees whose employment is with statutory flavour in the public Service, Rule 030307 of Public Service Rules, 2008 is applicable. This Rule provides that:
Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Public Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule:
i. The officers shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate to the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his defence that he/she has been given access to such documents. The officer shall be called upon to state in writing, within the period specified in the query, any grounds upon which he/she relies to exculpate himself/herself.
ii. The query, or preliminary letter, shall be in the format shown in Appendix II.
iii. If the officer submits his/her representations and the Federal Civil Service Commission is not satisfied that he/she has exculpated himself/herself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the Commission may take such action against the officer as it deems appropriate;
iv. If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;
v. Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;
vi. The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;
vii. Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;
viii. If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;
ix. The Board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not in itself hear witnesses;
x. If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;
xi. If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;
xii. If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him/her to retire, the Commission shall, without further proceedings, direct accordingly; and
xiii. All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases”
53. Was the claimant issued query in line with the Public Service Rule?
In the Defendants' Statement of Defence at pages 107 to 116 of the Record, they averred that at the meeting of the JSC as reconstituted on February 4, 2020 the reports of the Independent External Auditors and that of the JSSC came up for consideration and that after extensive deliberations, the 1st defendant adopted the report including the findings and accepted the recommendations contained therein without any modification. Consequently, the JSC resolved and directed its Secretary to issue a letter to the claimant to answer and comment on the findings and issues contained therein in writing. The purported letter of query is at pages 51, 219 and 367 of the record. It is the argument of the defendants in paragraph 5.25 of their Final Written Address at page 691 of the record that they complied with Rule 030302 of the Public Service Rules by the said procedure.
54. The letter issued to the claimant made reference to his Handover Note during his stewardship as the Chief Registrar of the Customary Court of Appeal and then brought to his attention, the report of an Independent Auditor on the Court to the effect that the sums of N751,121, 027.34K is to be accounted for. The letter further directed the claimant to account for the said sum within 48 hours of receipt of the letter.
55. The question is, whether the letter in question captioned “request for comment” dated February 4, 2020; sent to the claimant by the 1st defendant can be said to be a query in line with the Public Service Rule?
Rule 030307 (ii) of the Public Service Rules provides that the query, or preliminary letter, shall be in the format shown in Appendix II. This sub- Rule stipulates that the preliminary and/or query letter sent to an officer notifying him of the possibility of discipline for an alleged act of serious misconduct must be in the same format as in Appendix II of the Rules. An extract of the format is as follows:
To .........................................................................................
Appointment and Rank ............................................................. ...
*1 wish to draw your attention to the fact that it has been brought to my notice that your work/conduct is unsatisfactory in the following respect:
_________________________________________________
_________________________________________________
1. If you desire to submit any representations why disciplinary action which might include ......................................................should not be taken against you, they should be submitted to me through:
within ....................................... of receipt by you of this letter, failure to submit them within this time limit will be taken to mean that you do not wish to make any, and appropriate sanction will be invoked against you.
2. You will acknowledge receipt of this letter in the copy attached hereto.
56. From the evidence before the Court, it is my findings that the letter of February 4, 2020 was written to the claimant almost 5 years after his Handover Note was submitted to the 1st defendant; see pages 41 to 46 of the record for the Handover Note. Even though the letter requested the claimant to give account on the sum of N751,121,027.34 that was unaccounted for during his tenure as Chief Registrar of the Customary Court of Appeal Rivers State, the letter did not state the rule and regulation which the claimant has broken and the likely penalty. It is also not indicated in this letter that the claimant will be given access to any document(s) or report(s) used against him and to ask him to state in his defence that he has been given access to such documents. There is again no indication of intention of the 1st defendant to take disciplinary action against the claimant that could lead to his dismissal stated in the letter.
57. The claimant pleaded in paragraph 28 of his Statement of Facts that he was not given access to the Audit Report of the Independent Auditor used against him, neither was he given access to the relevant documents on the alleged embezzlement that he was being accused of, five years after he had left that office. These pleaded facts of the claimant were not adequately traversed by the defendants as no evidence was shown to the Court that all these requirements of Rule 030307 (ii) of the Public Service Rules were complied with by the defendants. Consequently, I hold that the 1st defendant’s letter of February 4, 2020 to the claimant was a mere letter of “request for comment” as so titled. It does not qualify as a “query” as provided for in Rule 030307 (i) of Public Service Rules, 2008. In other words, I hold that the claimant was not given proper and legal query prior to his dismissal as required in Rule 030307 (ii) of the Public Service Rules, 2008.
58. Do the setting up of the 3-Man Internal Audit Panel and its report satisfy the Provisions of the Public Service Rules?
In paragraph 12 (m) of the Statement of Defence, the defendants aver that the Chairman of the JSC (1st defendant) constituted a 3-man Internal Audit Panel comprising of Mrs. N. Chinnah (Chartered Accountant and Accountant to the JSC); Mr. Princewill George (Senor Registrar I) and Mrs. Esther Owate (Senior Registrar I) to review the reports of the Independent External Auditor and the comments of the Ag. State Auditor-General on that report. This Panel confirmed the findings and recommendation of the Independent External Auditor and submitted its Report to the 1st defendant. The report of the said 3-man Internal Audit Panel is dated May 22, 2020 and it is at pages 253 to 257 of the record.
59. A critical look at the report of this 3-man Panel reveals that, it is an Internal Memo from Independent Audit Report Examination Ad-hoc Committee to the Secretary of the 1st defendant. The memo referred to the secretary, of the JSC the extract from the Report of the Independent Audit carried out in December 2015 on the Financial Account of the Customary Court of Appeal from August 2013 to May 2015 and that of the Rivers State Judicial Service Commission.
60. Paragraphs (v to vii) of Rule 030307 of Public Service Rules, 2008 allow the 1st defendant where necessary to set up a board of inquiry of at least three persons, one to be appointed chairman. These paragraphs require that the claimant, who is particularly affected in this instance shall be informed that, on a specific day, the question of his dismissal shall be brought before the board and that he shall be required to appear before it to defend himself and shall be entitled to call witnesses. Where witnesses are called by the board to give evidence before it, the claimant shall be entitled to put questions to the witnesses and that no documentary evidence shall be used against the claimant unless he has previously seen their copies thereof.
61. However, from the pleadings and evidence before the Court as found above, nothing was shown to the Court that the claimant appeared before the 3-Man Panel, neither is it before the Court that the claimant made any representation before the Panel. In the circumstance, I hold that the setting up of the 3-Man Panel to look into and review the claimant’s case vis-à-vis the Report of the Independent Auditor and the Comments of the Acting Auditor-General of Rivers State thereon is not in compliance with the provisions of Rules 030302 and particularly 030307 (v) to (vii) of the Public Service Rules, 2008.
62. IS THE DISMISSAL OF THE CLAIMANT LEGAL?
I have found and held above in this judgment that the defendants did not comply with the procedure stipulated in the Constitution of the FRN, 1999 (As Amended) when they dismissed the employment of the claimant in this case. In paragraphs 5.11 and 5.12 of the Defendants’ Final Written Address, their counsel contended that the argument of the claimant on the Independent Audit Report is misconceived and that the fact that the said report is tainted with violation of the Constitution does not ipso facto render it illegal or worthless. It is my considered view that this contention of the defendants’ counsel is offensive to law. This is because, the legal profession in this Country does not trivialize blatant contravention of the Constitution of the land as a mere misnomer but as an act that is illegal and unconstitutional. Besides, the effect of dismissal of an employee in Nigeria means that he/she forfeits all his or her terminal benefits together with gratuity, regardless of the number of years he had put into the service.
63. In this instant case, the claimant was employed into the Rivers State Judiciary with effect from February 2, 1998; see his Letter of Employment at page 35 of the record. His employment was determined by dismissal with immediate effect on June 19, 2020; see his Letter of Dismissal at page 58 of the record. This means that the claimant had worked with Rivers State Judiciary for more than 22 years before his dismissal. For all these years of service of the claimant, he is not entitled to any terminal benefit etc. because he was dismissed. Therefore, it is mandatory that for any employee to forfeit so much and to lose his professional integrity as the claimant did in the case at hand, the terms and conditions of his employment especially on discipline with respect to his alleged serious misconduct must be strictly complied with.
64. Consequently, having held that the defendants failed to comply with the provisions of section 125 of the Constitution of the FRN, 1999 (As Amended) and the provisions of Rule 030307 of the Public Service Rules, 2008 in dismissing the claimant in this case, I further hold that the dismissal of the claimant is illegal and null & void and of no effect. The Letter of Dismissal of June 19, 2021 issued to the claimant by the 1st defendant is accordingly set aside.
65. Is the Claimant Entitled to Re-Instatement and Payment of All His Salaries and Other Entitlements from When He was Illegally Dismissed?
Having held that the dismissal of the claimant by the 1st defendant is illegal and null & void and of no effect what so ever; in the eye of the law, the employment of the claimant is still subsisting, uninterrupted at all and not determined in any form because the employment is laced with statutory flavour. It then means that the claimant is entitled to all his salaries and allowances together with all other things he is entitled to by virtue of his office as if nothing ever happened to his employment. In the case of University of Ilorin & Ors v. Dr. (Mrs.) Aize Imonokhome Obayan [2018] LPELR-43910(SC) Kumai Bayang Aka'ahs, J.S.C. (Delivering the Leading Judgment) held on reinstatement of the claimant to her employment that:
66. The lower Court rightly declared the letter reference UI/SSE/PE/1818 of 22 September, 1999 purporting that the respondent (plaintiff) had voluntarily terminated her appointment with the first appellant (defendant) with effect from 17 April, 1999 is ultra vires null and void and of no effect whatsoever.
I find that this appeal is totally devoid of any merits and it is accordingly dismissed. I further affirm the judgment of the lower Court delivered on 10 March, 2005 which ordered the respondents (now appellants) to reinstate and restore the plaintiff to her post as a lecturer and Reader in the Department of Guidance and Counselling of the University and to restore to her all rights, entitlements and other perquisites of that office and to pay to the plaintiff all her salaries, allowances and other entitlements from September, 1999 to date.
67. Also, in the case of Kwara State Judicial Service Commission & Ors v. Miss Yetunde Zainab Tolani [2019] LCN/4803(SC), the plaintiff Miss Yetunde Tolani, the respondent in the Supreme Court was appointed as a Magistrate Grade II on Grade Level 10 with the Kwara State JSC. She was still on Court Attachment prior to her swearing in when her appointment was withdrawn on the ground that she did not disclose her marital status that she was married to the Commission in her application.
The Supreme Court held that the respondent being a Magistrate Grade II on Grade Level 10 was a Senior Staff of the 1st Appellant and a public officer as defined by Section 318 (1) of the 1999 Constitution. Therefore, her employment was one with statutory flavour. In that circumstance, the termination or withdrawal of her employment could only be done in strict compliance with the regulations guiding such matters. The Court then affirmed the decision of the lower Court that the termination of the respondent’s appointment was illegal and unconstitutional as the said determination was based on a ground unknown to the Regulations of Kwara State JSC and so, due process was not followed and that the reasons for the termination is untenable in law.
68. On the consequences of the illegal and unconstitutional act of the JSC, the Court held Per Mary Peter-Odili JSC, Who read the lead Judgment that in Hart v. Military (Governor of Rivers State [1976] N.S.C.C. (Vol.10) 222; the Supreme Court re-echoed what it said in Shitta Bey’s case (1981) 1 SC (Reprint) 26 at 34, when the Military Governor of Rivers State purported to remove Hart from the Public Service of Rivers State as Permanent Secretary in spite of the powers conferred on the State Public Service Commission to do so; Fatai-William J.S.C. succinctly put it thus: “There is no doubt that what the Military Governor did in that case was ultra vires his constitutional powers. This renders his order that the appellant should be retired from the public service a nullity.” The Supreme Court again referred to U.B.N. (NIG) Ltd v. Ogboh (1995) 2 NWLR (Pt.360) 647 at 669 where it was held that the plaintiff employment being one with statutory flavour, can only be terminated in the manner prescribed by the relevant statute and any other contrary manner of termination is null and void ab inito.
Having declared that the withdrawal or termination of Miss Tolani’s employment is null and void as same was ultra vires the powers of the JSC, the effect is that she is entitled to an order of reinstatement as ordered by the lower Court.
69. Considering the case law principles enumerated above, I hold in the case at hand that the claimant, Dr. Dirialakeibama Jumbo Stephens is entitled to re-instatement in this case, the dismissal of his employment with the 1st defendant having been held to be illegal, unconstitutional, contrary to the provisions of the Constitution of the FRN, 1999 (As Amended) and the provisions of the Public Service Rules and so, it is of no effect what so ever. Consequently, I hereby order the defendants, particularly the 1st defendant to re-instate the claimant to his post as at the day of his dismissal, which is Chief Magistrate Grade 1. He shall also be paid arrears of all his salaries and all allowances including other benefits, which accrue to him by virtue of his position as Chief Magistrate Grade 1 with effect from the date of his dismissal, which is June 19, 2021.
70. Is it Lawful for the Rivers State Government to refuse to swear-in the Claimant as a Judge of the State High Court after his due Recommendation by the National Judicial Commission?
Relief (ix) of the claimant as endorsed on his complaint at page 3 of the record is for an order directing the 2nd Defendant or his principal in agency, the Executive Governor of Rivers State to, with immediate effect swear in the Claimant as a judge of the Rivers State High Court in accordance with the recommendation of the National Judicial Council. It is to be noted that counsel to defendants did not frame any issue on this relief, neither did he address the court on it as raised by counsel to the claimant. See the defendants’ address at pages 679 to 697 of the record. This finding notwithstanding, the claimant still has an obligation to prove to the satisfaction of the Court that he is entitled to the relief.
71. Section 271(2) of the Constitution of the FRN, 1999 (As Amended) provides that "The appointment of a person to the office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council". In proving this claim, the claimant tendered a letter dated December 2, 2019 titled: “NJC Committee for Interview of Candidates for Appointment as Judicial Officers of Superior Courts of Record” sent to him from the NJC. The letter is at page 49 of the record. He also relied on the photocopy of the Nation Newspaper of December 19, 2019 at 50 of the Record.
72. Going by the provision in section 271(2) of the Constitution of the FRN, 1999 (As Amended), it is the Governor of a State in Nigeria that appoints a judge, acting on the recommendation of the National Judicial Council. In other words, the NJC merely recommends and it is left for the Governor to take or act on the NJC’s recommendation. According to the Merriam-Webster dictionary, the word ‘recommended’ is defined as ‘Introduced or mentioned as being fit or worthy’, see https://www.merriam-webster.com. Also, the Chambers Dictionary Reprinted in 2002; defines “Recommend” as “to commend or introduce as suitable for acceptance, favour and appointment or choice”: see its page 1380.
73. In paragraph two of the NJC’s letter to the claimant at page 49 of the record, the NJC invited him for interview on a specified date as a Nominee for appointment as a Judge High Court, Rivers State. Whereas, in the copy of the Nation Newspaper publication of December 19, 2019 at page 50 of the record also relied on for this claim by the claimant, the NJC notified the general public that it has recommended the appointment of 33 judicial officers including Chief Judges for six States. For Rivers State High Court, the NJC recommended the appointment of the claimant and three other named persons. In my considered view, these two documents do not show that the claimant was actually appointed by the NJC as a Judge of Rivers State High Court. At best they indicate or reveal that the NJC only advised the Rivers State Government to appoint the claimant as a Judge of Rivers State High Court and I so find.
74. In the instant case, the Rivers State Government decided not to accept the recommendation/advice/proposal/suggestion/counsel of the NJC to appoint the claimant as a Judge of Rivers State High Court and the Rivers State Governor declined from swearing him in as a Judge of the State High Court. Consequently, I hold that the contents of the NJC’s letter at page 49 and the photocopy of the Nation Newspaper of December 19, 2019 at page 50 of the record, though not challenged and hence deemed admitted; do not establish the fact that the claimant has been appointed as a Judge of Rivers State High Court by the National Judicial Council. I further hold that what the NJC did was a mere advice, proposal, suggestion or counsel to His Excellency, the Executive Governor of Rivers State. I again hold that the Governor of Rivers State has rightly exercised his Constitutional discretion on the claimant’s appointment by declining from acting on the NJC’s recommendation in this regards and this Court cannot dictate to His Excellency, the Executive Governor of Rivers State how he should exercise his discretion in this regard and I so hold. Finally on this claim, I hold that the claimant has failed to prove to the satisfaction of the Court that he was already appointed as a Judge of Rivers State High Court; therefore, this claim fails and it is accordingly dismissed.
75. IS THE CLAIMANT ENTITLED TO N100,000,000.00 AS GENERAL DAMAGES?
Relief (x) of the claimant endorsed on his complaint is for an Order directing the Defendants to pay to him the sum of ₦100,000,000.00 (One Hundred Million Naira) as damages for the inconvenience, pain and humiliation he suffered because of the Defendants’ sundry acts of harassment and his unlawful dismissal from office. The aim of Court in making award of damages is not to make a windfall or excessive profit by the party on the said award, see Adamu & Ors. v. Shifa Plastics Ind. Co (Nig.) Ltd & Ors [2014] 40 NLLR (Pt. 124) 559 at 585, paras. A-G. Having declared the dismissal of the claimant illegal and unconstitutional and having ordered his re-instatement and payment of his arrears of salaries, allowances and other benefits attached to his position as Chief Magistrate Gd.1 with the 1st defendant; it is my firm view that the inconvenience, pain and humiliation the claimant might have suffered and his purported harassment and his dismissal by the defendant has been taken care of. Ordering the defendants to pay the sum of ₦100,000,000.00 to the claimant again as damages will be double jeopardy against the defendants and it will amount to excessive profit for the claimant against the case law principles that this Court is not ready to allow. Therefore, I decline from granting the sum of ₦100,000,000.00 requested for in this relief to the claimant and the claim is accordingly dismissed.
76. On the whole, I hold, declare and order as follows:
i. I hold and declare that the Audit carried out by the Independent/External Auditor on the Financial Account of the Rivers State Customary Court of Appeal for the period of August 2013 to May 2015 is unconstitutional.
ii. I hold and declare that the 3-Man Panel of Enquiry proceedings of May 29, 2020 was carried out in gross violation of the Claimant’s right to fair hearing, contrary to the provisions of the Rule 030307 of the Public Service Rules, 2008.
iii. I hold and declare that the dismissal of the Claimant as Chief Magistrate Grade I of the Rivers State Judiciary with effect from June 19, 2020 and the directive to refund the sum of ₦751,121,027. 34 as money unaccounted for by the 1st Defendant is unlawful, null and void as it contravenes the provision of the Constitution of the FRN, 1999 (As Amended).
iv. I hold and declare that as a result of his illegal dismissal, the Claimant is entitled to re-instatement to his post as Chief Magistrate Grade 1 in the Rivers State High Court and he is entitled to all his salaries and allowances together with all other benefits being due and payable to him in that office with effect from June 19, 2020 till date.
v. I hereby direct that the unlawful letter of dismissal issued by the 1st Defendant to the Claimant on June 19, 2021(sic) (June 19, 2020) with Reference No. RS/JUD/C.1297/S.I/96 be set aside. See paragraphs 33 & 74 (iii & iv) of this judgment and the provision of Order 47 Rule 22 of the NICN (CP) Rules, 2017 for authority to correct minor slip in figure in this judgment.
vi. I hereby Order the immediate reinstatement of the Claimant to his position as a Chief Magistrate Grade I in Rivers State High Court.
vii. I hereby Order the 1st Defendant to instantly pay to the Claimant, all his salaries, allowances together with all other benefits due and payable to him as a Chief Magistrate Grade I in Rivers State Judiciary with effect from June 19, 2021(sic) (June 19, 2020) till today. See paragraphs 33 & 74 (iii & iv) of this judgment and the provision of Order 47 Rule 22 of the NICN (CP) Rules, 2017 for authority to correct minor slip in figure in this judgment.
viii. I hold that the claimant could not substantiate his claim that he was already appointed as a Judge of Rivers State High Court, therefore, I decline from directing the Executive Governor of Rivers State through the 2nd Defendant to swear him in as a Judge of the State High Court.
ix. I also decline from directing the Defendants to pay to the Claimant the sum of ₦100,000,000.00 as damages for his unlawful dismissal because the Court has adequately compensated him for it by directing the 1st defendant to re-instate him and to pay him all his arrears of salaries, allowances and other benefits that accrue to his office with effect from when he was illegally dismissed.
x. The 1st defendant is to pay the sum of N600,000.00 cost to the claimant within 30 days from today.
xi. This Judgment abides in the other two sister cases with Suit Nos: NICN/PHC/110/2020 & NICN/PHC/111/2020 in principle.
77. Judgment is entered accordingly.
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HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Presiding Judge