IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                          HON. JUSTICE M. N. ESOWE

 

DATE: OCTOBER 19, 2022                                  NICN/LA/21/2018

 

BETWEEN

DAVID ADEOLUWATERU AKINMARIN                       CLAIMANT

(SUPERINTENDENT OF POLICE)

 

AND

1.     THE POLICE SERVICE COMMISSION         

2.     THE INSPECTOR GENERAL OF POLICE                    DEFENDANT

3.     COMMISSIONER OF POLICE, AIRPORT                            

POLICE COMMAND, IKEJA, LAGOS STATE          

 

REPRESENTATION

Ebuka Ekeanyanwu, Esq with Chukwuemeka Azubuike, Esq for the Claimant.

No representation for the Defendant.

 

JUDGMENT

INTRODUCTION

1.      The Claimant instituted this action vide a General Form of Complaint dated and filed on 22.01.2018. The Claimant upon obtaining leave of Court amended his Complaint and Statement of Facts twice. In his Amended Statement of Facts, the Claimant seeks the following:

 

i)        A DECLARATION that the approval of the 1st Defendant to place the Claimant on suspension without pay with effect from the 14th day of November, 2017 as contained in the 3rd Defendant’s Police Wireless Message Ref No CH:6700/MMAC/Vol.1/28.DTO/041314/12/2017 to the Claimant is unconstitutional, illegal, null and void and in breach of the Claimant’s rights as enshrined under the Public Service Rules of Nigeria as the Claimant was not accorded the right to fair hearing before the punitive decision was made by the 1st Defendant.

ii)      A DECLARATION that the decision of the 1st Defendant to demote the Claimant to the rank of DSP as well as the compulsory retirement of the Claimant as contained in the Police Wireless Message with reference no DTO: 180900/11/2020 is unconstitutional, illegal, null and void and in breach of the Claimant’s right as enshrined under the Public Service Rules of Nigeria as the Claimant was not accorded his right to be fairly heard before the punitive decision was made by the 1st Defendant.

iii)   AN ORDER setting aside the decision of the 1st Defendant to suspend the Claimant without remuneration as same is illegal, null and void and in breach of the Claimant’s constitutional right to be fairly heard as well as his rights as enshrined under the Public Service Rules of Nigeria.

iv)    AN ORDER setting aside the notice of compulsory retirement of the Claimant by the 1st Defendant for being illegal, null and void and in breach of the Claimant’s constitutional right to be fairly heard as well as his rights as enshrined under the Public Service Rules of Nigeria.

v)      AN ORDER reinstating the Claimant as an officer of the Nigerian Police Force as well as promoting him to the rank of Chief Superintendent of Police sequel to the Claimant’s Annual Performance Evaluation Report (APER) policy which would have been due to the Claimant but for the unlawful suspension of the Claimant by the 1st Defendant.

vi)    AN ORDER of this Honourable Court directing the Defendants to pay the Claimant all salaries, allowance and benefit due to the Claimant from the date of his illegal suspension till the date of delivery of judgment.

vii) AN ORDER of this Honourable Court awarding general damages to the Claimant in the sum of N4,000,000.00 (Four Million Naira only) against the Defendants jointly and severally for the hardship and mental instability/stress suffered by the Claimant as a result of the Defendants’ unlawful suspension of the Claimant without pay (since the year 2017) and the compulsory retirement of the Claimant in breach of the Public Service Rules of Nigeria, 2008.

viii)    AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay the sum of N500,000.00 (Five Hundred Thousand Naira only) to the Claimant being the costs incurred in commencing and prosecuting the extant legal action against the Defendants.

 

2.      The Claimant filed alongside the Amended General Form of Complaint other accompanying processes including the Claimant’s Further Witness Statement on Oath, List of Witness and documents including documents to be relied on during trial.

 

SUMMARY OF FACTS

3.      The Claimant’s case is that the Defendants’ decision to unlawfully suspend him without pay and compulsorily retire him from the Defendants’ services on the basis of an unproven allegation was arrived at in breach of his right to fair hearing and with no regards to compliance with proper disciplinary procedures set out in the Public Service Rules, 2008. Thus, he seeks the reliefs as outlined above.

 

DEFENDANTS’ CASE

4.      All through this proceedings in spite of the fact that the Defendants were served with the Claimant’s processes as well as several hearing notices to make them aware of the proceedings and elect to put in a defence, the Defendants were absent and unrepresented throughout the entire proceedings.

 

TRIAL

5.      Hearing commenced on 25.02.2022, the Claimant testified as CW1, he adopted his witness statements on oath as his evidence in chief and tendered several documents in evidenced admitted and marked as exhibits C1 – C11 respectively. Thereafter, the matter was adjourned to 22.03.2022 and subsequently to 05.04.2022 for cross-examination of CW1, following the absence of the Defendants to do so, the Court in a considered ruling foreclosed the Defendants following which the Claimant closed his case. The case was subsequently adjourned to enable parties file, exchange and adopt their final written addresses.

 

 

 

CLAIMANT’S FINAL WRITTEN ADDRESS

6.      The Claimant with leave of Court filed his Final Written Address on 19.07.2022 wherein Learned Counsel on behalf of the Claimant formulated an issue for determination, to wit:

 

a.      Whether the Claimant is entitled to the reliefs sought as per his Amended Complaint and Statement of Facts dated (sic)?

 

7.      Learned Claimant’s Counsel submitted that the right to fair hearing as a tenet of natural justice envisages that both sides are given the opportunity to present their respective cases, and each side is entitled to know that a case is being made against it and be given the opportunity to reply thereto. Counsel referred the Court to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Olugbenga Daniel v FRN (2014) 8 NWLR (Pt. 1410) 570 at 575, LPDC v Fawehinmi (1985) NWLR (Pt. 7) 300.

 

8.      Counsel went on to state that the Claimant’s constitutional right to be fairly heard was knowingly and intentionally breached on several occasions by the Defendants like when the Defendants interdicted and suspended the Claimant without pay and without giving the Claimant chance to defend himself. In addition, the Claimant’s side of the story was not heard before the decision on the compulsory retirement of the Claimant and demotion to the rank of Deputy Superintendent of Police was reached. The Defendants also did not follow the procedures laid out for discipline in the Public Service Rules, 2008, particularly Rule 030307(v-ix).

 

RESOLUTION

9.      Having regards to the circumstances of this suit, the processes filed by the Claimant herein, evidence adduced at trial, this Court adopts the issue formulated by Learned Counsel to the Claimant for determination, albeit with slight modification, namely:

 

a.      Whether the Claimant is entitled to the reliefs sought as per his Amended Complaint and Statement of Facts?

 

10. May I state as earlier noted in this judgment that despite the fact that the Defendants were served with the processes in this suit including several hearing notices informing them of the various dates this matter was coming up, the Defendants elected to absent themselves from the entire proceedings. No processes were filed by the Defendants in defence of the Claimant’s suit and the Court cannot continue to wait endlessly for the Defendants to put up a defence, if any.

 

11. The law is well settled that a Court or Tribunal ought to hear both sides in the case before reaching a decision which may be prejudicial to any party in the case. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Dingyadi v INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154.

 

12.The right to fair hearing nonetheless shall be within a reasonable time, as such, no Court is allowed to wait for an indefinite period for a litigant to make up his mind whether or not to put up his case. The principles of equity and fairness assist only the vigilant and not the indolent who deliberately leave things undone until irreversible damage has been occasioned. See Dalyon v Oradiegwu (2007) 8 NWLR (Pt. 669) 421 at 434, COP, Adamawa State v Saratu & Anor (2014) LPELR – 24198 (CA).

 

13. In Dantata v Mohammed (2012) 8 NWLR (Pt. 1302) 366 at 381, paras. H-C, the principle of fair hearing was captured thus:- “…The fair hearing principle enshrined in Section 36 of the 1999 Constitution is not for the weakling, the slumberer, the indolent or the lazy litigant. It is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time…” In other words, given the fact that the Defendants are aware of this case and elected to disregard this judicial process by stating their own side of the story, this Court cannot continue to wait for the Defendants who have being given ample time to put up a defence; the Court shall proceed to consider the merit or otherwise of the Claimant’s case.

 

14. In law where a party to a suit did not respond to issues raised by its opponent, such issues are uncontested because there are no submissions to be considered along with those of the Claimant. That however does not guarantee automatic success of those issues because the law mandates the Court to make a finding as to whether they are sustainable in law – see Agabiaka v Okojie (2004) 15 NWLR (Pt. 897) 522, Gari & Anor v Pada & Ors (2019) LPELR – 48241 (CA).

 

15. Although, the non-response to the Claimant’s suit by the Defendants ordinarily means a concession, this concession does not mean that the said claims must willy-nilly be resolved in favour of the Claimant. No, it has to be shown that on the state of the law the issues should be resolved in favour of the Claimant. It is quite possible that the law does not support the position which parties have taken and it will be doing violence to the law if the Court on the basis of the fact that the issue has been conceded proceeds to resolve the same in favour of the Claimant. The Court must still discharge its role of adjudication by examining the state of the law relative to the issue. See Union Bank v Koleoso (2019) LPELR – 47970.

 

16. In addition, the Claimant in the instant suit is seeking amongst other things declaratory reliefs which require that he discharges the burden of proof to be entitled to a decision of the Court in his favour. The Claimant’s case cannot therefore succeed on the weakness of the Defendants’ defence or their failure to put up a defence to this suit.

 

17. The Claimant’s relief one (1) is for a declaration that the action of the 1st Defendant in suspending him from work without pay effective from 17.11.2017 without according him fair hearing, an opportunity to defend himself is unconstitutional, illegal, null and void and in breach of the Claimant’s rights as enshrined under the Public Service Rules of Nigeria. In A.G. Cross River v FRN (2019) 10 NWLR (Pt. 1681) 401, the Supreme Court defined the word “suspension” to mean: “the act of temporary deprivation of a person’s power or privileges especially of office or profession.”

 

18. In other words, the term suspension connotes a state of affairs that should wait until a certain event takes place. It cannot be construed to mean “terminate, extinguish, bring to an end. Suspension is a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. This procedure gives the initiator of the discipline another period to make up his or her mind as to what should be done to the person facing the discipline – Nweke v Unizik Akwa (2017) 18 NWLR (Pt. 1598) 454, Yep v Samuel (2020) 16 NWLR (Pt. 1750) 193.

 

19. In the instant case, the Claimant was suspended from performing his duties assigned to him by virtue of his office vide a Police wireless message with ref no: CH:6700/MMAC/Vol.1/28.DTO/041314/12/2017 effective from 17.11.2017. Two (2) months and five (5) days down the line, the Claimant instituted this action to amongst other things challenge the legality or otherwise of the suspension without pay based on the allegation that he was not accorded fair hearing before the decision to suspend him was reached. This was the primary cause of action of the Claimant prior to subsequent amendments of his pleadings which modified his cause of action.

 

20. It is settled law that he who asserts must prove, the burden of proof lies on the Claimant who wishes the Court to believe that the decision of his suspension without pay was reached in breach of the Public Service Rules 2008 and the Claimant’s right to fair hearing. CW1 testified that on 28.09.2017 he was issued a query, Exhibit C3, with reference no: CH: 6360/MMAC/Vol.9/10 wherein several allegations of misconducts bordering on discreditable conduct, bribery, corruption, assault, sabotage and conduct prejudicial to discipline were made against him.

 

21. CW1 responded to the query vide a letter dated 29.09.2017 with reference no: CH: 6360/MMAC/PROV/Vol.4/84, Exhibit C4. The contents of the said Exhibit C4 tells a lot that the pleadings of the Claimant appears to have shielded from the Court as touching the allegations and procedures adopted in disciplining the Claimant. The second to the last paragraph on the 4th page of Exhibit C4 states:

 

“…Sir, it is my candid and wholehearted plea that as a father who would not want or wish any of his children to go astray, since you did advise me before this query whether I did commit the “ugly act” or not, uneasy lies the head that wears the crown for peace sake the suspect’s money needs to be paid back. Despite the fact that my office and car have been thoroughly searched by the I.P.O and A.C.C.I.I.D and nothing incriminating found therein. Not withstanding, that “the money” which the said suspect claimed to have been missing from his luggage should be refunded back to him. Who am I to challenge my father and boss in his wisdom? However, due to the circumstances surrounding the case I plead to dispassionately absolve me. I also pray such “vicarious act” and “negligent act” on the part of the Inspector Crime/IPO Sgt Alikali Emmanuel who claimed he saw an envelope of money in the suspect’s luggage and did not take proper necessary action as per Police Procedure with regard to care and custody of exhibit not to result in throwing away the baby and the dirty water please…”

 

22. From the above it is clear that the Claimant was under investigation prior to him being issued with a query (Exhibit C3), the result or findings of which remains unknown to the Court because the Defendants elected not to appear in Court and state their own side of the story. Be that as it may, the major complaint of the Claimant is that the Force Disciplinary Committee that reached the decision to suspend and interdict him did not give him the opportunity to state his own side of the story thereby breaching his right to fair hearing. What then is the disciplinary procedure relied on by the Claimant which he alleges was breached?

 

23. In paragraph 15 of the Statement of Facts filed on 22.01.2018, the Claimant outlined the procedure as contained in the Public Service Rules 2008. In paragraph 16 of the Claimant’s Further Witness Statement of Oath filed on 11.08.2021, the Claimant briefly reiterated this position now emphasizing on failure of the Defendants to afford him the opportunity to adequately make his defence. I have gone through the provisions of the Public Service Rules 2008 relied upon by the Claimant and I am of the humble view that the provisions of Rule 030307 (v – ix) cited by Learned Claimant’s Counsel given the facts and circumstances surrounding this case are not applicable as the said Rule is connected to disciplinary procedure that may result in dismissal.

 

24. From the look of things the provisions of the Public Service Rules 2008 applicable to the Claimant’s case as touching his discipline and those that appear to have been applied by the Defendants in the Claimant’s case are Rules 030304(d), 030305, 030403 and 030406. Rule 030406 is of particular interest, it provides:

 

“Suspension should not be used as a synonym for interdiction.
It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. Pending investigation into the misconduct, he Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the
enjoyment of his/her emolument.”

 

25. It is clear from the above that an officer may be suspended without pay when a prima facie case, the nature of which is serious, has been established against the officer. The officer may also be suspended for misconduct pending investigation. In the instant case, the Claimant had in Exhibit C4 tacitly admitted to the allegations of assault and disobedience to his superior when he invited the suspect into his office despite instructions not to do so, the reasons and/or explanations he gave for the assault and disobedience notwithstanding.

 

26. It is settled law that facts admitted need no further proof, this tacit admission made by the Claimant in his response to the query (Exhibit C3) suggests that a prima facie case had been established against him, the Claimant could thus be suspended without emoluments pending the investigation that was on going since it was in the interest of the public to so do. I have gone through the content of Exhibit C5 – the Power Wireless message that conveyed the message of the 1st Defendant through the Force Secretary of the Claimant’s suspension and find it amusing how the Claimant arrived at the conclusion that a Disciplinary panel was constituted and met without inviting him to attend and present his case before the decision to suspend him was reached.

 

27. Exhibit C5 states that the 1st Defendant had by a letter dated 14.11.2017 approved the suspension from duty of the Claimant with effect from 14.11.2017, the officer (Claimant) should be warned to adhere strictly to the Rules and Regulations binding officers while on suspension. I am of the firm view that whether or not a disciplinary panel or committee was constituted to investigate the allegations of misconduct against the Claimant, Rule 030406 of the Public Service Rules 2008 allows the 1st Defendant to suspend the Claimant pending investigation of the misconduct. Besides, the law is where no hearing or trial has taken place before a Court or Tribunal, it is premature to allege breach of fair hearing – Kasunmu v Shitta-Bey (2006) 17 NWLR (Pt. 1008) 372.

 

28. When the Claimant appeared before his superior to explain his side of the story surrounding the incidence of 02.09.2017, the principle of fair hearing was afforded him. Similarly, when he was served with the query (Exhibit C3) containing the allegations against him, he responded to same vide Exhibit C4 stating his own side of the story in his defence to the allegations levied against him, the rule of audi alteram partem was been adhered to.

 

29. It is on this note that I am inclined to disagree with the Learned Counsel to the Claimant that the Rule of the Public Service that ought to be applicable as regards the procedure for the discipline of the Claimant is Rule 030307 (v – ix), this Court believes that the Rules applicable to the discipline of the Claimant based on the surrounding facts of the allegations are Rules 030304(d), 030305, 030403 and 030406, particularly Rule 030406 which do not require any invitation before the decision to suspend can be taken.

 

30. Assuming without agreeing that the procedure for the discipline of the Claimant is that as outlined in Rule 030307 of the Public Service Rule 2008 which is not the case as the content of Exhibits C3 and C5 do not suggest inquiries into grounds for dismissal but rather allegations of serious misconducts, Rule 030307(v), (vi) of the Public Service Rule 2008 states that the constitution of a board of inquiry is “where necessary” and “failure of the officer to appear (on the specific day the question of the dismissal is raised) shall not invalidate the proceeding.”

 

31. The wordings of this provision are clear and unambiguous so they are to be given their ordinary meaning, see Olafimihan v Nova Lay-Tech Ltd (1998) 4 NWLR (Pt. 547) 608, the failure of the Claimant to attend or appear before the 1st Defendant’s disciplinary panel or committee does not invalidate the proceedings. This is only as it relates to the decision to suspend the Claimant without pay. I therefore discountenance the submission of Learned Counsel to the Claimant in this regards.

 

32. The issue then in the humble view of this Court is whether the decision to suspend and interdict the Claimant in the same breath without pay until the decision of the Defendants to demote the Claimant was valid in law? Rule 030406 clearly states that “suspension should not be used as a synonym for interdiction.” While suspension and interdiction are both methods of meting out discipline on staff or employees, when an employee is interdicted, he or she is placed on not more than half of his or her emoluments.

 

33. Suspension on the other hand is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. See Rule 030404(ii), 030406 of the Public Service Rules 2008. It is on this note that I find that the Claimant could not be interdicted and suspended concomitantly.

 

34. Having found that the Claimant had the opportunity to tell his own side of the events that took place between 02.09.2017 and 05.09.2017 on the case of malicious damage of property belonging to Turkish Airline both in writing and verbally to his superior and that the Defendants had the right to summarily suspend the Claimant without pay pending the investigation of the allegations of misconduct against him, I hold that the Claimant has not placed sufficient, credible and cogent evidence to support the grant of his relief one (1), consequently same fails. I so hold.

 

35. Relief two (2) is for a declaration that the decision to demote the Claimant to the rank of Deputy Superintendent of Police (DSP) and compulsory retirement is unconstitutional, illegal, null and void and in breach of the Claimant’s right as enshrined under the Public Service Rules of Nigeria as the Claimant was not accorded his right to be fairly heard before the punitive decision was made by the 1st Defendant. On this Learned Claimant’s Counsel submitted that Courts are not the only adjudicatory bodies obliged to ensure fair hearing, the failure of the Defendants, particularly, the 1st Defendant to afford the Claimant fair hearing in its disciplinary investigation meetings by not informing of days of its meeting or rescheduled dates makes the decision arrived at in breach of the principle of fair hearing unconstitutional.

 

36. The twin pillars – audi alteram partem and nemo judex in causa sua upon which fair hearing is based “carry with it the need to give to all parties due notice of hearing and the opportunity to be heard and to cross-examine every witness called by one’s adversaries. Generally, a breach of the rule, save is a few statutory exceptions, will invalidate the proceedings because it is breach of not only the right to fair hearing entrenched in our Constitution but also a breach of rule of natural law.” See Emmanuel v Umana (2016) EJSC (Vol. 46) 107 at 178, paras. B-D.

 

37. Exhibit C8 is a letter dated 19.08.2019 written by the 1st Defendant to the Claimant’s former Solicitor in response to the letter written by Claimant’s Counsel to the then Chairman of the 1st Defendant (Exhibit C7) dated 21.12.2018, in it (Exhibit C8), the Director (Discipline) of the 1st Defendant stated amongst other things that the Claimant was schedule to appear before the Force Disciplinary Committee (FDC) between 05.12.2018 to 07.12.2018, he was captured as serial no. 23 to enable the FDC process the disciplinary matter but he refused to appear before the committee and did not adduce any reason to that effect, he is rescheduled to appear before the FDC on 23.05.2019.

 

38. CW1 however in his evidence in chief denies being aware of any meeting by the Force Disciplinary Committee stating he was never invited nor notified of such meeting(s). The Defendants never appeared in Court so it is not possible to know whether or not this is the actual position so this ordinarily shifts the burden of proof on the Defendants. The Claimant’s evidence in this regard remains uncontroverted and unchallenged given the fact that the Defendants elected to not utilize the trial to state their position. Rule 030305 of the Public Service Rules 2008 provides:

 

“If it is represented to the Federal Civil Service Commission
that an officer has been guilty of misconduct and the Commission does not
consider the alleged misconduct serious enough to warrant proceedings
under Rule 030306 with a view to dismissal, it may cause an investigation
to be made into the matter in such a manner as it considers proper and the
officer shall be entitled to know the whole case made against him/her and
shall have adequate opportunity of making his/her defence. If as a result the
Commission decides that the allegation is proved, it may inflict any other
punishment upon the officer such as reduction in rank, withholding or
deferment of increment or otherwise.”

 

39. It can be gleaned from the above that the Defendants, particularly the 1st Defendant has the power where it decides that the allegation against its officer is proved to inflict punishment on such officer in form of reduction in rank, withholding or deferment of increment or otherwise but this should only take place where during the investigation into such allegations the officer was given adequate opportunity of making his or her defence.

 

40. In view of the fact that the Claimant gave unchallenged evidence that he was not given adequate opportunity to make his defence and since there is nothing presented by the Defendants to show the contrary, I am of the view that no matter how well conducted the disciplinary hearing or investigations in respect of the allegations against the Claimant in breach of the principles of fair hearing remains a nullity. Thus, I am inclined to set aside the proceedings of the Force Disciplinary Committee with respect to the disciplinary matters of the Claimant for breach of fair hearing, no notice having been served of him of investigations hearings; and same is hereby set aside. I so hold.

 

41. On the issue of compulsory retirement, it is on record that the Claimant joined the services of the Defendant sometimes on 01.03.1984, at the time the incidence of malicious damage to property (HP Printer) belonging to Turkish Airlines took place on 02.09.2017, the Claimant had put in well over thirty-three (33) years of service, though well over 54 years of age. This Claimant admitted in the last paragraph of Exhibit C4 where he stated:

 

“…Sir, I most humbly urge you to tamper justice with mercy in the course of your review of this query and discharge/exonerate me. This would go a long memory lane as a great legacy from you during my remaining short time of service and after my disengagement from the Force very soon, please…”

 

42. Rule 020810(ii) of the Public Service Rules 2008 reads “No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.” In the instant case, 01.03.2019 made it 35 years of pensionable service rendered by CW1 to the Nigeria Police Force, unfortunately though, he was still undergoing disciplinary investigation. In Ekeagwu v Nigerian Army (2004) 11 NWLR (Pt. 991) 382, on the distinction between dismissal of an employee and compulsory retirement, it was held inter alia:

 

                                                              i.      “Dismissal or compulsory retirement of an employee by the employer translates into bringing the employment to an end, but there is a clear difference. Dismissal is punitive, and usually without any terminal benefits to the employee. The employee stands disgraced and held in ignominy. On the other hand, where an employee is compulsorily retired he receives his terminal benefits under the contract of employment.”

 

43. CW1 was not dismissed but placed on compulsory retirement, in the light of this, I see no need to make any orders in relation to the compulsory retirement of the Claimant as either way he was to retire from the service on 01.03.2019 after putting in 35 years of pensionable service. I therefore find that the decision on the compulsory retirement of the Claimant by the Defendants was in order and should remain undisturbed as it does not deprive the Claimant from receiving his terminal benefits. This relief is not grantable, it therefore fails. I so hold.

 

44. Reliefs three (3) and four (4) are incidental or ancillary reliefs flowing from the declaratory reliefs sought in prayers one (1) and two (2) respectively. It is well settled law ancillary or consequential reliefs based on a declaratory relief must fail once the declaratory relief fails. See Yil v Ngumar (1998) 8 NWLR (Pt. 560) 125. Consequent on this, relief three (3) incidental to relief one which failed is bound to fail, relief four (4) incidental to the part of relief two (2) that failed also fails and are hereby dismissed. I so hold.

 

45.On the issue of reinstating and promotion to the rank of Chief Superintendent of Police which is the Claimant’s relief five (5), given the fact that this Court has found that there was no wrongful termination of the Claimant’s employment, there can not be an order of reinstatement as it would amount to putting something on nothing and expecting same to stand. More so, it would amount to a wrongful exercise of judicial discretion for a Court to order that an employee who is found guilty of gross misconduct should be reinstated to his employment with statutory flavour on the ground that his employment was not determined by the statutorily empowered person or body – Osakue v FCE (Tech) Asaba (2002) 7 NWLR (Pt. 765) 222.

 

46. The second leg of the Claimant’s prayer five (5) is promotion to the rank of Chief Superintendent of Police following Claimant’s Annual Performance Evaluation Report (APER). The problem with this claim is that except where an employer is vindictive or acts mala fide — Mrs Abdulrahaman Yetunde Mariam v University of Ilorin Teaching Hospital Management Board & Anor [2013] 35 NLLR (Pt. 103) 40 NIC] — promotion is not a right but a privilege. See The Shell Petroleum Development & 5 Ors v E. N. Nwawka & Anor [2001] 10 NWLR Pt. 720 64 at 84, Abenga v Benue State Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 610 and Mr Emmanuel A. Idonije v Nigerian Maritime Administration and Safety Agency (unreported Suit No. NICN/LA/303/2014, the judgment of which was delivered on 10 July 2017).

 

47. The Claimant made no attempt to show his entitlement to promotion (if at all there is even one), made no attempt to show this Court that he met the requirements needed for him to be promoted since relief five (5) talks of “policy on Annual Performance Evaluation Report”, the Claimant also made no attempt to show this Court that he was denied promotion because the Defendants were vindictive or acted mala fide towards him in the matter. Relief five (5) is thus not grantable, it having not been proved. I so hold.

 

48. Though the Claimant did not lead any evidence to show how much he earned and cumulatively what his emolument or entitlements were, Rule 030307(xi) provides “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.” The penalty of reduction of rank having been set aside makes the provision of this Rule in respect of entitlement to full amount of salary applicable. This relief thus succeeds, the Defendants are ordered to pay the Claimant his salary denied him while he was suspended till the date of his compulsory retirement.

 

49. The Claimant is asking for general damages to the tune of N4,000,000.00 and the sum of N500,000.00 as expenses expended in prosecuting this litigation. On the issue of general damages, it is the law that in the award of general damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and far-reaching. The measure of general damages is awarded to assuage such a loss which flows naturally from the Defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. It is presumed to be the direct and probable consequence of the act complained of.

 

50. Unlike special damages, it is generally incapable of exact calculation. Where a party is demanding for or claiming general damages, the Court awards same at its discretion. The quantification of general damages in terms of money is a matter for the Court – Elf Petroleum v Umah (2018) 10 NWLR (Pt. 1628) 428, Akaolisa v Akaolisa (2022) 13 NWLR (Pt. 1848) 487 (SC), Owakah v R.S.H.P.D.A (2022) 12 NWLR (Pt. 1845) 463. Given the fact that the Claimant supposedly knew nothing of the disciplinary hearings and or investigation taking place with respect to the allegations against him only to receive information that he was to be penalized by a reduction of his rank, the mental hardship inflicted on the Claimant can only be best imagined. It is on this ground that I award the cost of N500,000.00 as general damages in favour of the Claimant against all the Defendants.

 

51. On the issue of cost of the suit, it is the law that cost follows events however in the case of Nwanji v Coastal Services Nig Ltd (2004) LPELR-2106(SC) the Apex Court held that the claim for professional fees or Solicitor’s fees is an unusual claim and difficult to accept in this Court. Based on this, this relief fails. I so hold.

 

52. On the whole, the Claimant’s case succeeds in part in terms of reliefs two (2), relief five (5) and six (6). Save as would presently be indicated, all other reliefs fail and so are dismissed. Accordingly, it is declared and ordered as follows:

 

a)     The reduction of the rank of the Claimant by the 1st Defendant vide Police Wireless Message with reference: DTO: 180900/11/2020 is wrongful and hereby set aside.

 

b)    The Defendants are ordered to pay to the Claimant the full amount of his salary starting from 14.11.2017 till the date of his compulsory retirement being 01.03.2019.

 

c)     The Defendants are also ordered to pay to the Claimant the sum of N500,000.00 (Five Hundred Thousand Naira) only as general damages.

 

 

 

 

53. Judgment is entered accordingly. I make no order as to cost.

 

 

_____________________________

Hon Justice M. N. Esowe, FCIArb

Presiding Judge