IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

5TH DAY OF DECEMBER, 2022                                          SUIT NO. NICN/CA/14/2021

BETWEEN:

Mr. Patrick Joseph Akpan……………………………………………………………………. claimant

AND

1.      Federal Road Safety Commission

2.      Mr. Boboye O. Oyeyemi                                                                            defendants

(Corps Marshal Federal Road Safety Commission)

      JUDGMENT.

1.      The claimant approached this Court via originating summons dated 30/3/2021 and filed on 31/3/2021. The Originating Summons is supported by a 28 paragraph affidavit sworn to by the claimant himself.  A written address was also filed along with the originating summons. The claimant vide this action is seeking for the following reliefs;-

1.      A DECLARATION that the purported termination of the claimant’s employment by the defendants is illegal, wrongful, unwarranted and a gross violation of section 11(2) of the Labour Act Cap. L1 Laws of the Federation of Nigeria, 2004 and section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

2.      A DECLARATION that the defendants letter dated 18th December, 2020 purporting to terminate the claimant’s appointment us (sic) ultra vires, null and void and of no effect whatsoever.

3.      A DECLARATION that the claimant is still in the services of the 1st defendant.

4.      A DECLARATION that the claimant is not entitled to summary termination of his employment by the 1st defendant.

5.      A DECLARATION that the purported termination of the claimant’s appointment under any guise whatsoever is contrary to the provisions of the Pension Act of Nigeria in that claimant is a permanent and pensionable staff of the 1st defendant.

6.      A DECLARATION that the content of any purported letter of appointment or any agreement whatsoever does not override the provisions of the Labour Act and the Pension Act of Nigeria.

7.      A DECLARATION that the purported termination of the claimant appointment by the defendants negates the fundamental rights of the claimant as provided by the 1999 Constitution of the Federal Republic of Nigeria (as amended),

8.      A DECLARATION that it is unlawful for the defendants to summarily terminate claimant’s employment without due process.

9.      A DECLARATION that the purported termination of the claimant employment by the defendants does not follow due process as required by law.

10. AN ORDER of this Honourable Court nullifying the purported termination of the claimant’s employment by an instrument dated 18th December,2020 and all other actions by the defendants consequent upon the termination.

11. AN ORDER of this Honourable Court directing the 1st defendant, her agents, privies to reinstate the claimant to his employment.

12. AN ORDER of this Honourable Court directing the 1st defendant to pay all financial benefits accrued forwith (sic) to the claimant from the month of the purported termination of his employment tilt date.

13. AN ORDER of this Honourable Court restraining the defendants by herself, agents, servants through or by whosoever acting for her or on her behalf from further interfering with the claimant’s employment.

14. AN ORDER of this Honourable Court directing the defendants jointly and severally to provide adequate responsibilities to the claimant throughout his employment.

15. AN ORDER of this Honourable Court directing the defendants jointly and severally to pay the sum of Five hundred Million Naira (N500,000,000.00) only as general damages for wrongful termination of the claimant’s employment.

16. AN ORDER of this Honourable Court directing the defendants jointly and severally to pay the sum of One Million Naira (N1,000,000.00) only as cost of this action.

2.      The claimants presented the following questions for answers:-

1.      Whether upon a calm and proper interpretation of section 11(2) of the Labour Act, Cap. L1 Laws of the Federation of Nigeria, 2004 and paragraph E of the letter of provisional offer of appointment, the purported termination of a contract of employment of the claimant does not constitutes an affront to the law.

2.      Whether a calm and proper interpretation of the law, the purported termination of appointment of the claimant is not in contrast to the claimant’s fundamental right to fair hearing as enshrined in section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

3.      Whether the defendants can unilaterally and summarily terminate the contract of employment of the claimant without due process,

4.      Whether the claimant employment enjoys statutory flavour and same being confirmed by the defendants, claimant can suffer summary dismissal without due process.

5.      Whether in the purported termination of employment, the claimant was involved in a criminal act and same tried by a competent court or agents of the 1st defendant and found the claimant guilty as charge to warrant summary dismissal of the claimant’s employment.

6.      Whether the claimant is entitled to reinstatement to his employment including all financial benefits that accrued thereof during the wrongful termination of his employment.

7.      Whether the claimant is not entitled to be given notice on any allegation against him and reasons for his employer’s action against him during the cause of his employment.

8.      Whether there is any rule or punishment in the 1st defendant’s Establishment Act and Regulations known as “services are no longer required” as contained in the instrument dated 18th December, 2020 purporting to terminate claimant’s employment.

9.      Whether Honourable Court is clothed with jurisdiction to order reinstatement of the claimant’s employment with every financial benefit from the date of the purported termination of the claimant’s employment to date.

10. Whether the claimant is entitled to defend any allegation against him before the defendants.

11. Whether the process that led to the termination of the claimant’s employment by the 1st defendant’s agent took into cognizance the claimant’s right to fair hearing.

3.      The originating summons is supported by a 28 paragraph affidavit sworn to by the claimant himself. There are also 5 annexures attached to the affidavit marked as exhibits 1, 2, 3, 4 and 5. In the affidavit in support of the originating summons the claimant stated that he was employed by the 1st defendant in 1996 on salary grade level RSS 10/1, as per exhibit 1. In 2011 the claimant’s appointment was confirmed and promoted to rank of ACC on COMPASS 13, per exhibits 2 and 2A. However, the claimant on 31/12/2020 when he came to office he was surprised to receive a letter from his sector commander that his appointment has vide letter dated 18/12/2020 (exhibit 3) been terminated by the defendants. The claimant was also directed vide exhibit 4, asked to complete clearance certificate. Consequent upon the termination of claimant’s appointment, he contacted law firm of Emmanuel E. Idaka & Associates and Oliver A. Osang, Esq; to issue and serve pre-action notice on the defendants. A copy of the pre-action notice is exhibit 5.

4.      The claimant stated that he was not served with any notice of intention to terminate his appointment as required by law or formerly tried him of any alleged offence. The claimant also stated that since his employment by 1st defendant he has not been involved in any criminal act or any act of insubordination to warrant the unjust act of the defendants. The claimant further stated that he has not been served with any query that demand explanation all through his employment and refuse or neglect to answer that will qualify for summary dismissal from service. There was no time claimant was invited to defend any allegation before the defendants’ panel/tribunal that he either fail in his defence or neglect to attend to answer the issues alleged against him through a formal trial.

5.      The claimant also stated that his employment is pensionable and has hugely contributed to the pension scheme from his salaries for a period well over 20 years. The termination is borne out of malice and hatred.

6.      In the further and better affidavit filed by the claimant in response to the defendants’ counter affidavit, the claimant averred that he never at any time collected N150,000.00  from Mr. Patrick Arinze Okafor for the purposes of securing employment for her. He only met her for the first time during the disciplinary panel sitting. That the N150,000.00 is a loan to which he issued UBA cheque as collateral for the purchase of a piece of land at Umunya Nteje Community, in Anambra State as contained in his reply to query as per exhibit 4.

7.      The claimant stated he was never given opportunity to put any defence against the allegation by Mr. Patrick Arinze Okafor. The attempt to put any defence was disrupted by the panel and his UBA bank post-dated cheque issued to Mr. Patrick Arinze Okafor was destroyed during panel hearing and this fact was carefully avoided by the panel report. The disciplinary panel report was never served on him to give him opportunity to exercise his right of appeal. The reason for termination was not stated in the letter of termination.

THE SUBMISSION OF THE CLAIMANT.

8.      In the written address filed by the claimants four issues were formulated for determination. They are:-

1.      Whether the claimant is entitled to the reliefs sought from this Honourable Court.

2.      Whether the purported termination of the claimant’s appointment by “Exhibit 3” is in consonant with Section 11 of the Labour Act, 2004 or paragraph E of “Exhibit 1” and the Pension Reform Act, 2004.

3.      Whether   the   defendants   can   unilaterally terminate   the appointment of the claimant summarily without due process even when the said appointment has been confirmed by the 1st defendant.

4.      Whether the claimant was involved in any criminal act arising from fraud and was formally tried by the defendant’s agents and was found guilty to qualify the 1st defendant to summarily terminate his employment without benefits.

9.      Oliver A. Osang, Esq; counsel for the claimant argued issues 1, 2 and 3, together, by submitting that the termination of the claimant’s employment by the defendants runs against the provision of section 11(2) of the Labour Act, Cap. L1 Laws of the Federation of Nigeria 2004. According to counsel the law regulating employment provides for procedure in the termination of employment with statutory flavour. In the case at hand claimant was not served with any notice prior to the termination of his appointment. In support of this contention reliance was placed on the case of Bernard Ojeifo Longe V First Bank of Nigeria, Plc (2010) Vol. 2-3 MJSC 128, where it was held that when the law vest a right on a citizen, a court of law will resolutely resist any attempt and whatever means to deny the citizen the enjoyment of the right conferred by law.

10. It is submitted that, by breaching the right of the claimant as to one month notice as provided in the Labour Act before termination of his employment, the termination is null and void. It is also submitted that the defendants breached the claimant’s right to fair hearing enshrined in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in the way and manner his employment was terminated and such breach raises a very serious issue. On this submission reliance was placed on the case of Alhaji Muhammadu Maigari Dingyadi & Anor V INEC & 2 Ors (2010) Vol. 6-7 MJSC 1.

11. Counsel submitted that the onus is on the employer to justify that the purported termination is done in accordance with the rule of fair hearing and the employer believed that the employee committed the alleged offence.  Counsel refers to the case of Oloruntoba-Ojo V Abdul-Raheem (2008) Vol. 6 MJSC 1, where it was stated in the termination of appointment as follows:-

a.      The complaint must be brought to the notice of the person

b.      He must be given an opportunity of making representation in person to the council on the matter.

12. Counsel further submitted that failure to observe the rule of natural justice in the termination of claimant’s employment by the defendants makes the termination a nullity.

13. Counsel continued his submission that the claimant is a pensionable staff whose employment is covered by the Pension Act, 2004 and as such part of his salary was deducted for pension towards his retirement. Given the termination, what becomes of claimant’s savings in the pension scheme? The Honourable Court cannot sustain the illegality perpetrated by the defendants to deny the claimant the blessings of Section 7 of the Pension Act, 2004.

14. Issue 4; in arguing this issue counsel submitted that, from the evidence adduced in this case, at no time was the claimant engaged in criminal act during his employment. The claimant’s employment is one with statutory flavour and as such, it is put over and above the ordinary master and servant relationship. In the event of the employment terminated wrongly, the Court has the power to order reinstatement. On this contention reliance was placed on the case of lfeta v. Shell Pet. Devt. Co. Ltd. (2006) 7 MJSC 121 @ 124.

15. It is further submitted that the purported termination of the claimant’s employment summarily by the defendants was not done in accordance with any known law of the land including the Federal Road Safety Commission (Establishment) Act, Cap. F19 Laws of the Federation of Nigeria, 2004, Regulations on Discipline, 2018 and the Federal Public Service Rules as there is no rule or offence or punishment that is known as “service no longer required”. Counsel insisted that the termination of the claimant’s employment by the defendants was borne out of malice and hatred otherwise the reason for the summary dismissal would have been stated in “Exhibit 3”, letter of termination of appointment.

16. In concluding his submission counsel urged the court to grant the claimants reliefs as prayed.

17. In the reply on points of law filed along with the further and better affidavit in support of the originating summons, the claimant submitted that it is trite in a contract with statutory flavour, the laid down procedure to discipline erring employees must be adhered to strictly and in the event of dismissal of an employee, the reason for such termination must be stated.

18. Counsel argued that in the case at hand the defendants’ disciplinary panel’s report contained a number of findings and recommendations but none was captured or stated in the letter of termination of the claimant’s employment.

19. In concluding his submission counsel urged the court to discountenance the defendants counter affidavit and grant the claimant’s claims as contained on the face of the originating summons.

20. In reaction to the originating summons, the defendants filed a 27 paragraph counter affidavit sworn to by one Barr. Joseph Emokela, an employee of the 1st defendant working in the legal Department of the 1st defendant. The affidavit was accompanied by 8 exhibits. A written address was also filed along with the counter affidavit. Paul Eko, Esq; counsel for the defendants leading A. E. Okwuonu, Esq; informed the court that they are relying on the depositions contained in the counter affidavit and the 8 exhibits attached therein. Counsel also adopted the written address as his argument.

21. In the counter affidavit it was stated that the appointment of the claimant is subject to Nigerian applicable laws, the constitution of the Federal Republic of Nigeria 1999, as amended, and guided by the Federal Road Safety Commission Regulation on discipline 2018 and any other statutory or legislative guide. The 1st defendant as a public institution and as contemplated in section 17 of its enabling Act, section 318 (1) of the CFRN, 1999, as amended is also subject to public service rules in all ramifications, including appointment, welfare and discipline of its personnel.

22. According to the defendants sometime in September 2019, a complaint was received alleging that the claimant collected the sum of N150,000.00 from one Mr. Patrick Arinze Okafor for the purpose of securing employment for Mr. Okafor’s sister by name Nwacha Chekwube Cynthia. The CTC of the complaint against the claimant was attached to the counter affidavit as exhibit 2. Based on exhibit 2, a query was issued to the claimant to explain why disciplinary action should not be taken against him. The query served on the claimant is exhibit 3. In response to the query, the claimant admitted receiving the money but denied receiving it to secure employment for the Nwacha Chekube Cynthia, but a loan. The reply is exhibit 4. Dissatisfied with the claimant’s answer to the query exhibit 3, a disciplinary panel headed by DCC David A. Barde was set up. The disciplinary panel heard from the complainant, his witnesses and the claimant in his defence. The report of the panel containing its findings and recommendation dated 6/5/2020, is exhibit 5.

23. The defendants stated that the claimant failed to serve 30 days pre-action notice, as he served only two days on 29/3/2021 and instituted this suit on 31/3/2021 and fraudulently frontloaded/exhibited a pre-action notice dated 18/2/2021. The pre-action notice served on the corps dated 29/3/2021, is exhibit 6.

24. The termination of claimant’s appointment was due to his odious conduct in bringing the corporate image of the corps or the commission into disrepute by his indulgence in money for job practice and refusal/failure to refund the money when he could not secure the job.

25. The defendants maintained that the termination of claimant’s appointment followed due process as statutory and administrative procedures were exhausted. The defendants did not breach the claimant’s right to fair hearing, as the claimant was queried, he replied the query and he appeared before disciplinary committee but failed to exonerate himself from the allegation levelled against him.

26. On 25/10/2022, Paul Okoi, Esq; counsel for the defendants at the hearing of the Originating Summons informed the court that twin issues were formulated in the written address filed along with the counter affidavit. The two issues for resolution are:-

1.      Whether having regards to the totality of actions preceding the termination of appointment of the complainant, the said termination could be said to be un-procedural and contrary to due process?

2.      Whether the depositions of the complainant in his affidavit in support of the originating summons were not falsely fabricated to hoodwink the honourable court and defeat the adjudication of the case?.

27. Issue one; Whether having regards to the totality of actions preceding the termination of appointment of the complainant, the said termination could be said to be un-procedural and contrary to due process? In arguing this issue counsel submitted that having regard to the totality of actions preceding the termination of appointment of the claimant, the defendants did all that was procedurally expected of them in accordance with the 1st defendant regulations on discipline 2018 and by extension the Federal Civil Service Rules.

28. Counsel also submitted that there is no contention that the employment of the claimant is one with statutory flavour. By implication, the defendants cannot arbitrarily or unilaterally terminate the claimant’s appointment except in compliance with regulations, rules or statutory instrument that govern contract of employment. the claimant has faulted the termination of his contract of employment by the defendants on the grounds that due process was not followed; he was not given notice on any allegation against him nor reasons for his employer’s action against him; he was not given the right to defend himself of any allegation against him before the defendants and he was not given fair hearing.

29. On the allegation by the claimant that the action of the defendants was borne out of malice and hatred, nor was he served with any notice of defendant’s intention to terminate his employment as required by law nor formally tried him of any alleged offence; nor been served with any query all through his employment with the with the 1st defendant; was never invited to his appointment as required by law nor formally tried him for any alleged offence; nor was he ever invited to defend himself of any allegation before the defendant’s panel which he failed in his defence or neglected to attend. The claimant has also stated that termination of his appointment by the defendant does not marry equity and is devoid of good conscience.

30. According to counsel for the defendant, in the contrary, the defendants were mindful of statutory flavour of the claimant’s employment and acted by the rules as guided by the court of appeal in FMC Ido Ekiti V Kolaole (2012) All FWLR (Pt.653) 199 @ 2002, where the court said: ‘’Rule 04306 of the public service rules stipulate the procedure to be followed before the appointment of a senior public officer…. Could be terminated. He must be given query, invited to a panel, shown whatever document that would be used against him and witness that might testify against him. A public servant/officer can only be validly removed from service if the proper procedure prescribed by the rules has been followed’’.

31. Counsel continued argument that a contract of employment with statutory flavour is terminable except that such termination must comply with procedural expectations. In the instant case, the complainant misconducted himself when he sought and obtained money for employment of Mr. Okafor’s cousin into 1st defendant but failed to secure the employment for the victim and refused or neglected to refund the money to the victim. Misconduct according to the Public Service Rules is defined as:

“a specific act of wrong doing or an improper behaviour which is inimical to the image of the Service and which can be investigated and proved. It can also lead to termination”.

32. According to counsel in the instant case, the Complainant was alleged to have collected the sum of N150,000.00 (One Hundred and Fifty Thousand naira) only from one Mr. Okafor to help Mr. Okafor’s cousin sister gain employment into Federal Road Safety Corps but failed to fulfil the promise and failed to refund the money to the said Mr. Okafor. This act of the Complainant was brought to the notice of the Defendants by a petition of the said Mr. Qkafor referred to as exhibit 2 in the defendants’ counter affidavit.

33. Pursuant to the petition in exhibit 2, the Defendants through the Complainant’s sector commander issued the complainant a query dated 15th April 2020. See exhibit 3. The Claimant replied to the query wherein at paragraph 6, he admitted receiving N150,000,00 (One Hundred and Fifty Thousand Naira) from the petitioner, Mr. Parick Arinze Okafor to make up N400,000.00 (Four Hundred Thousand Naira) for the purchase of a piece of land at Umunga. Though the complainant admitted receipt of the money, he denied that it was for him to gain employment for Mr. Okafor’s sister into Federal Road Safety Corp.

34. Being dissatisfied with the complainant’s response to the query, the Defendants constituted a Disciplinary panel was set up. The panel sat and heard from the petitioner Mr. Arinze Patrick Okafor, his witnesses Miss Nwache Chekwube Cynthia and Mr, Nwaze Francis Okechukwu who were cross-examined by the complainant. The complainant also made his defense before the Disciplinary Panel and the Panel sought and obtained some clarification from him. At the conclusion of the hearing, the Panel found the Complainant “guilty of scandalous behaviour by receiving the sum of One Hundred and Fifty Thousand naira (N150,000.00)  from Mr. Okafor, for a job slot. See exhibit 5.

35. The panel also found the claimant guilty and recommended termination of the Complainant’s appointment as punishment for scandalous behaviour by defaming and degrading the image of the Corps by receiving money for job.

36. From the above narratives and the contents of exhibits 2, 3, 4 and 5 in support of the Defendants’ counter affidavit, it is submitted that the termination of the claimant’s employment is not in breach of the Public Service Rules regarding termination of appointment of the Public Servant.

37. Contrary to Regulation 31 of the FRSC Regulation on Discipline 2018, the complainant conducted himself in a scandalous manner thereby defaming and degrading the image of the Corps by receiving N150,000.00 from Mr. Arinze Patrick Okafor.

38. Counsel submitted that gross misconduct has been defined by the courts to mean any “conduct that is of grave and weighty character as to undermine the confidence which should exist between an employee and the employer”, in support of this reliance was placed on the case of ABBA V. J.A.M.B (2015) ALL FWLR (PT 777) 744 at 752 Ratio 7.  In the 1st Defendant’s Regulation on Discipline 2018, Gross misconduct is defined as “any misconduct which if established shall lead to loss of seniority, reduction in rank, termination of appointment or dismissal from appointment or dismissal from Service”.

39. It is submitted that the conduct of the claimant in receiving money to secure employment for Arinze Patrick Okafor’s causin sister, scandalously defamed and dent the image of the Corps, undermined the confidence that existed between the claimant and the Defendants and qualifies the claimant for the punishment provided at Regulation 31 of the FRSC Regulations on Discipline 2018.

40. The claimant has by his question No. 2 formulated for determination of the court asked “whether the defendants can unilaterally and summarily terminate the contract of employment of the Claimant without due process?” the above question has been answered in the negative when reference was made to the case of FMC, Ido Ekiti V. Kolawale (2012) ALL FWLR (PT 653) 1999,

41. As to whether due process was followed by the defendants in terminating the employment of the claimant, it is submitted that it is the law that “where an employer dismissed or terminated the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee, that he was given a fair hearing, that is to say that the rules of natural justice were not breached and that the Disciplinary panel followed the laid down procedure if any, and accepted that he committed the act after investigation. To support this contention reliance was placed on the case of UDOH V C.S.C AKWA IBOM STATE (2014) ALL FWLR (PT 716) 582 AT S87.

42. According to counsel the claimant was made aware of the provisions of the FRSC Regulations on Discipline 2018, the “Dos and Don’ts” of the Corps and the consequences which is reward or punishment. Since the employment of the claimant in 1996 till 2019 when he was complying with the Regulations of the Corps, he was rewarded with promotions rising from Assistant Route commander on salary grade Level RSS10/1  to ACC on CONPASS  13 in 2009. It is incumbent upon the Defendant to adhere to the doctrine of legitimate expectation; legitimate expectation could be negative or positive in so far as a public authority acts in consonance with its promise. His termination of the appointment by the Defendants is in conformity with the doctrine of legitimate expectation which postulates that:

“when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty”. See MOBIL PRODUCING (NIG) UNLTD V. FIRS (2017) ALL FWLR (Pt.911) 543 at 549.

43. Finally, on whether due process was followed, the Claimant has opined that the termination of his appointment vide the instrument dated 18th December, 2020 is in flagrant breach of section 11(2) of the Labour Act, 2004. The section deals with termination of contract by notice and states at subparagraph (1) that:-

“Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intension to do so”,

44. Section 11 subparagraph (2) which is of interest to the claimant, it deals with Notice to be given to comply with subsection (1) and section 11 (2) (d) is applicable to the case of the claimant as he had been under the employment of the 1st Defendant for about 25 years’’.

45. Without prejudice to section 11 (2) (d) the Act provides at Section 11 (5) that:

“Nothing in this section affects any right of either parties to a contract to treat as terminable without notice by reason of such conduct by the other party as would have enabled him to treat it before the making of this Act”.

46. Counsel refers to section 11 (5) of the Labour Act and state that the provision of the Labour Act at section 11 (2) (d) does not debarred the defendants or affects the right of the defendants to treat as terminable without notice by reason of the scandalous and gross misconduct of the claimant while at the employment of the Defendants. The scandalous and gross misconduct of the claimant by receiving money for employment, failing to secure the employment and refusal to refund the money to the victim subjected the image of the Commission to Public ridicule.

47. It is submitted in the circumstance of this case, relying on the depositions at paragraphs 10, 11, 12, 13 and 14 of the Defendants’ counter affidavit to the originating summons, it is submitted that the Defendants have done all that is expected of them to legally terminate the appointment of the claimant and urged the court to hold that the termination is in accordance with due process.

48. To conclude on Issue One, counsel refers to the Claimant counsel’s argument at his issue No. 4 at paragraph 4.10. that “the purported termination of the claimant’s employment summarily by the defendants was not done in accordance with any known law of the land as there is no rule or offence or punishment that is known as service no longer required”. In response to this argument, counsel contended  that counsel’s written brief cannot take the place of evidence. The supreme court has held in Nigerian Telecommunication Ltd V. Okeke (2017) ALL FWLR (PT.899) 196 at 198 Ratio 2 that “the address of counsel no matter its persuasiveness can never take the place of evidence”.

49. A careful perusal of the Claimant’s 28 paragraphs affidavit will revealed that at no paragraph of the affidavit did the claimant deposed to the fact of punishment of “service no longer required” as an un-procedural ground for his summons. Even in the 11 questions formulated for determination of the court and 9 grounds for the reliefs sought by the claimant, the fact of “service no longer required” was never raised. The submission of claimant’s counsel on the nomenclature of termination of the claimant not based on evidence goes to no issue.

50. To re-echo the law, counsel urged the court to hold that the argument on “service no longer required” not based on any evidence of the claimant goes to no issue as:

“Address of counsel however brilliant, can never take the Place of evidence”. See Adegbite V. Amosu (2017) ALL FWLR (PT.870)1069 at 1078 Ratio 8.

51. Counsel submitted that reliefs found on affidavit evidence need to be proved by affidavit evidence. See A.G Anambra V. A.G.F. (2005) ALL FWLR (PT.268) 1557, Statement of the claimant’s counsel not proved by affidavit must fail, It may also interest court to note that for 25 years that the claimant had conducted himself in conformity with the rules of the 1st defendant, his service was required, retained and rewarded with promotion.

52. It is only when the claimant grossly misconducted himself, that he was queried and when he gave unsatisfactory reply to the query, he was summoned before the 1st Defendant Disciplinary Panel to defend himself and was not able to controvert the allegation, that his services was no longer required, The circumstance leading to his services not being required is obvious. The fact that the entire scenario lead to the guilt of the claimant and leave no degree to possibility or chance that other person could have been responsible for the commission of the offence is a test of the circumstantial evidence of the phrase “service no longer required” on the Claimant’s exhibit Ref FRSCFHQ/AHR/697/vol.l/043 dated 18th December, 2020 and the subsequent termination of appointment. In support of this submission reliance was placed on the case of Olatunbosun V. State (2011) ALL FWLR (PT.555)304 at 313 Ratio 12 for test for determining nature of circumstantial evidence. To crown it all paragraph 1 of the query stated in clear terms the offence leading to the termination of the Claimant’s appointment.

53. Issue two: Whether the depositions of the Claimant in his affidavit in support of the originating summons were not falsely fabricated to hoodwink the Honourable court and defeat the just adjudication of the case?

54. In arguing issue two counsel submitted that some of the depositions of the claimant in his affidavit in support of the originating summons were falsely fabricated to hoodwink the Honourable court and to defeat the just adjudication of the case. The claimant has chosen to approach the court through originating summons. Processes initiated by originating summons are based on affidavit evidence and should be given weight where there is no conflict. But if there is conflict, such conflict could be resolved either from oral or documentary evidence, where there is conflict of affidavit evidence called by both sides, it is necessary to resolve the conflict. In resolving such conflict of parties, “there may be authentic documentary evidence which supports one of the affidavit evidence in conflict with another. In a trial by affidavit evidence, that document is capable of tilting the balance in favour of the affidavit which agrees with it. Even if oral evidence had been called, such documentary evidence would be a yardstick with which to assess oral testimony”. See NIGERIAN CEMENT PLC V. OBIDIKE (2017) ALL FWLR (PT 909) 158 at 161.

55. In the instant case, the claimant’s affidavit at paragraphs 15, 16, 1 7, 18 and 23 are at conflict with the Defendants’ affidavit at paragraphs 10, 11, 12, 13 and 17, thereby warranting the resolution of the court. Contrary to the depositions of the claimant that he was not given any query and was not invited to defend himself of any allegation before the defendant’s panel, the defendants’ exhibits 2, 3, 4 and 5 speaks for the Defendants. Exhibit 2 is Mr.Okafor’s petition, exhibit 3 is acknowledged copy of the query, exhibit 4 is the Claimant’s reply to the query and 5 is the Federal Road Safety Disciplinary Panel (FDP) record of proceedings.

56. Counsel refers to paragraphs I5 and 16 and submits that the claimant lied on oath when he deposed that he was never issued with any query and was never invited to defend himself of any allegation before the Defendant’s panel. Paragraphs 15 and 16 of the Claimant’s affidavit having been deposed by the claimant attest to the fact that he is not a witness of truth having been debunked by exhibits 2, 3, 4 and 5 of the Defendants. He also cannot deny lying on oath as the Defendant’s exhibits are against the weight of his evidence in his affidavit.

57. It is the law and we submit that: “A statement oral or written, made by a party to a civil proceeding which statement is adverse to his case is admissible in the proceeding as evidence against him/her of the truth of the facts asserted in the statement. In other words, a party’s declaration/statement/evidence particularly on oath (as in the instant case), whether for or against his/her interest, when made, may always be taken to be true as against himself or herself”. See Fari V. Federal Mortgage Finance Ltd (2004) ALL FWLR (PT 235) 27at 34 Ratio 13,

58. It is further submitted that the Defendants can rely on the false deposition of the claimant in his affidavit to prove that he is not a witness of truth. See Okon N. Bolingo Hotels Ltd (2004) ALL FWLR (PT 214) 10 at 80 where the Court of Appeal held that “A party can rely on a point raised in the adversary’s affidavit or document exhibited thereto if it supports the party’s case”.

59. The Court of Appeal has held that facts are important to the administration of justice as “facts have the most killing effect of persuasion and this must be known by every lawyer. Indeed, it can be said that the convincing force of power of argument in the court depends largely on the clarity and strength of the attendant facts”. To buttress the point being made counsel relied on the case of OKON V. BOLINGO HOTELS (supra) 80 ratio II.

60. It is the submission of counsel that in the instant case, the claimant knowingly fabricated lies with intent to hoodwink the court to subvert the administration of justice. Counsel urged the court to discountenance the depositions of the claimant in his affidavit for not being truthful.

61. Counsel made reference to the case of Livestock Feed Plc V Funtua (2005) ALL FWLR (PT.286) 753, where the Court of Appeal per Ba’aba JCA (as he then was) held that: “It is incumbent upon an applicant to place all the necessary materials before the court to enable the court exercise its discretion in his favour”

62. Counsel further submitted that in the instant case, the Defendants have controverted the lies of the Claimant and placed the relevant exhibits 2, 3, 4 and 5, before the court to enable the court exercise its discretion in favour of the defendants. Ordinarily, the Claimant ought to have exhibited exhibits 2, 3, 4 and 5, to his originating process but intentionally withheld them knowing that the exhibits worked against his lies.

63. In concluding his submission, counsel submitted that the Claimant committed the offence of gross misconduct; as he could not credibly defend himself of the allegation and was found guilty; Counsel urged the court to dismiss the originating summons of the Claimant.

64. On 25/10/2022, when this matter came up for hearing, the defendants moved their notice of preliminary objection, which was brought pursuant to section 16(1) (a) (b) (c) and (d) of the Federal Road Safety Commission (Establishment) Act, 2007 and under the inherent jurisdiction of the court. The objection prays that this suit is incompetent as the claimant has lost his right of action for failing to satisfy a condition which totally deactivates the jurisdiction of this Honourable court to hear the matter.

65. The grounds for the objection are as contained on the face of the notice of the preliminary objection.

66. The notice of preliminary objection is supported by a 9 paragraph affidavit sworn to by one Joseph Inokela a staff of the 1st defendant in the legal department. The salient deposition are to the effect that the pre-action notice which was issued and served on the defendants was statutorily supposed to last for 30 days before filing of the said action. The pre-action notice issued by the claimant was dated 18/2/2022, but was received at 2nd defendant’s office on 29/3/2022, while this suit was filed in the registry of this court on the 31/3/2021 instead of 30/4/2021. See exhibit A. this action was pre-manually filed, as it was not in compliance with the provisions of section 16(1) (a) (b) (c) and (d) of the Federal Road Safety Commission (Establishment) Act, 2007.

67. In the further and better affidavit filed on 12/10/2022, it was stated that the pre-action notice was received by the defendants on 29/3/2021 and not 18/2/2021, when it was posted as alleged. It was also stated the defendants are not branch of (EM EXPRESS) to possibly have knowledge of such notice before it was posted to the defendant/applicants office in Abuja F.C.T. the days between 29/3/2021 and 31/3/2021 are certainly not up to 30, 31 days as the case may be to ground the action as filed.

68. A written address was filed along with the notice of preliminary objection where a lone issue was submitted for determination, to wit:

‘’Whether having regards to section 16(1) (a) (b) (c) and (d) of the Federal Road Safety Commission (Establishment) Act, 2007, this suit is properly filed by the claimant/respondent before this Honourable court to be seized with the jurisdiction to entertain it.

69. In arguing the lone issue counsel submitted that it is purely unarguable that, in the case of Madukolu V Nkemdlim (1962) SCNLR 341, it was stated that for a court to have jurisdiction to entertain a matter before it, the following conditions must be present. They are:-

a.      That, the proper parties are before it

b.      That, the subject matter falls within the jurisdiction of the court

c.      That, the composition of the court as to members and qualifications is in place

d.      That, the said suit commenced by due process of law and upon fulfilment of any conditions precedent to assumption of jurisdiction. 

70. Reference was also made to the case of Ajao V Obele (2005) 5 NWLR (Pt.918) 400, where it was held that, these conditions operate in conjunctive order.

71. It is submitted that section 16(1) of the Road safety Commission (Establishment) Act, placed side by side with exhibit ‘A’ the pre-action notice which shows that the pre-action notice was received on 29/3/2021, will show that filing of this action on 31/3/2021, was contrary to the Act establishing the 1st defendant.

72. Counsel urged the court to strike out this suit for non-compliance with the condition precedent  as provided in section 16(1) (a) (b) (c) and (d) of the Federal Road Safety Commission (Establishment) Act, 2007, which automatically deactivates  the jurisdiction of this court to entertain this suit.

73. In reaction to the notice of preliminary objection the claimant filed an 8 paragraph counter affidavit wherein it was stated that this suit was filed on 31/3/2021 in accordance with the extant laws and in full compliance and fulfilment of all conditions precedent to instituting an action against the 1st defendant. It was also stated that before the filing of this suit, the counsel for the claimant had issued a pre-action notice dated 18/2/2021 and served on the 1st defendant via a courier service of Nigerian postal service (EM EXPRESS) on the 25/2/2021. The receipt from the Nigeria Postal Service is attached to the counter affidavit as exhibit ‘A’. The period from 25/2/2021 to 31/3/2021, when this suit was filed is more than 30 days required by law.

74. In the address filed along with further and better affidavit counsel submitted that paragraphs 5, 6, 7, 8 and 9 of the defendants/applicants of the affidavit in support of the NPO stands admitted. To buttress this submission counsel relied on the cases of Attorney General Plateau State V Attorney General of Nasarawa State (2005) ALL FWLR (Pt.266) 1227 SC; Adamu V COP Plateau State (2006) ALL FWLR (Pt.298) 1348 CA.; UNBIZ Ltd V CBL (Nigeria) Ltd (2005) 14 NWLR (Pt.944) 47 SC; S. T. Hons. Law of Evidence in Nigeria (2nd ed) (Port-Harcourt: Pearl Publishers, 2012.

75. It is also submitted that by section 16 of the Federal Road Safety Commission (Establishment) Act, service on the commission exclude service by (EM EXPRESS) 

76. A written address was filed along with the counter affidavit where a lone issue was formulated for resolution, to wit:-

‘’Whether the claimant/respondent did not comply with the provision of the extant law before the commencement of this action.

77. In arguing this issue counsel refers to the Supreme Court decision in NPA V S. E. S. Ltd (2016) 17 NWLR (Pt.1541) 191, where pre-action was defined as; ‘a notice by the plaintiff to the opponent of the reason why the plaintiff is instituting a legal action against the opponent, and the purport of it is to intimate the opponent of what to expect or confronted within the course of the legal proceedings.

78. It is also submitted that the claimant/respondent before instituting this action fully complied with the provisions of section 16(1) (a-d) of the Federal Road Safety Commission, (Establishment) Act 2007, as exhibit ‘A’ is a conclusive proof that the action was instituted more than thirty days after notice has been served.

79. It is also submitted that the date the defendant recipient choose to stamp on the pre-action notice is immaterial and cannot be taken to be the date of service. the defendants can as well choose to deny service in its entirety but the date of posting as in the instant case is what is taken into account provided it was not return to the sender. The intendment of pre-action notice is to give room for ADR and not to subvert justice and there are instances where pre-action notice can be declared unconstitutional. See NNPC V Evwori (2007) All FWLR (Pt.369) 134 @ 1340; Amadi V NNPC (2000) FWLR (Pt.9) 1527.

80. In concluding his submission counsel urged the court to dismiss the defendant’s application with cost as the claimant’s application is competent suit and the court has jurisdiction to entertain same. Counsel also urged the court to do substantial justice as era of technicality is over.

COURT’S DECISION:

81. On 25/10/2022, when this suit came up for hearing I took argument on the main suit and the notice of preliminary objection filed by the defendants challenging the competency of the suit on the ground that the claimant did not comply with the provision of section 16(1) of the Federal Road Safety Commission (establishment) Act 2007, which stipulate giving one month notice to the defendants before an action could be commenced in a court of law. After taking argument I reserved ruling till when the judgment in the substantive suit will be delivered. This was in line with Order 18 Rule 6 of the rules of this court.

82. In the circumstance I shall first deliver my ruling on the preliminary objection before delving into determination of the originating summons commencing this suit.

83. For the defendant the claimant’s action as it is presently constituted is incompetent and the court deprived of its jurisdiction to entertain this suit. According to counsel the pre-action notice given by the defendants did not comply with the provisions of section 16(1) of the Federal Road Safety (Establishment) Act, which requires one month pre-action notice to be given before an action can be commenced against the defendants. According to counsel the pre-action notice was received at the 2nd defendant’s office on 29/3/2021, while this action was commenced on 31/3/2021, this shows that the requisite notice required to be given by section 16(1) of the Federal Road Safety Commission (establishment) Act 2007, was not given as per exhibit ‘A’ the pre-action notice.

84. For the claimant, it is contended that there is compliance with the provisions of section 16(1) of the Federal Road Safety Commission (Establishment) Act 2007, in that the claimant through its counsel did serve the defendants with pre-action notice via courier service of the Postal services. The claimant attached a copy of the receipt issued to him by the Nigeria Postal Services to counter affidavit as exhibit ‘A’.

85. Now, section 16 (1) of the Federal Road Safety Commission (Establishment) Act 2007, provides;-

‘’No suit shall be commenced against the commission on or before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the commission or the corps by the intending plaintiff or his agent, and the notice shall clearly and explicitly state:-

a.      The cause of action

b.      The particulars of the claim

c.      The name and place of abode of the intending plaintiff, and

d.      The relief which he claims.

86. A pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by person who is under legal duty to put on notice the person to be notified before the commencement of any legal action against such a person. The effect of non-compliance with service of pre-action notice amounts to an irregularity. Where the objection to jurisdiction is founded on non-compliance with the requirement of a pre-action notice, it does not abrogate the right of a claimant to approach the court or defeat his cause of action. Therefore, if the subject-matter is within the jurisdiction of the court, the failure of the claimant to serve the pre-action notice on the defendant gives the defendant a right to insist on such notice to be given. See Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76; Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910); Nigercare Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt. 1093) 498; Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348; Ministry of Education, Anambra State v. Asikpo (2014) 14 NWLR (Pt. 1427) 351; Ede v. Access Bank Plc (2020) 4 NWLR (Pt. 1715) 417.

87. The rationale behind the jurisprudence of pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to adjudication by the court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties. See Nigercare Development Company Ltd V Adamawa State Water Board (2005) LPELR-1997(SC).

88. A pre-action notice is a mandatory notice that has to be given by a plaintiff in required cases before his action can be competent. It is a pre-condition that must be complied with. Any action commenced in breach of this requirement would be incompetent. See Niger-care Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt. 1093) 498.

89. It is clear from the reaction to the notice of preliminary objection that the defendants are not claiming non-service of pre-action notice, what the defendants are disputing is the inadequacy of the notice as according to them they were given only two days’ notice. As according to the defendants filing of this action on 31/3/2021, when the service of the pre-action notice was made on 29/3/2021, as evidenced by the received stamp of the 2nd defendant, means that this action was filed before expiration of one month notice as required by law. The defendants’ position is that the pre-action notice was served on the defendants on 29/3/2021 and this action was filed on 31/3/2021, which means the defendants were not given the month notice stipulated by the law. The claimant disputed this claim by stating that the pre action notice was served on 25/2/2021, when the said pre action notice was delivered to the official of the postal service for onward delivery to the defendants. The claimant relied on exhibit ‘A’ to support his claim. The defendants insisted that the law contemplated service to be effected directly on the defendants and not through any other means such as (EM EXPRESS) i.e by post.

90. Now, what is to be resolve is the status of the pre-action notice served on the defendants on 25/2/2021, through the postal services as shown by exhibit ‘A’ attached to the counter affidavit of the claimant filed to controvert the deposition of the claimant in the affidavit in support of the notice of preliminary objection.

91. By virtue of section 64(3) of the Nigerian postal Service Act, the delivery of an article in any of the following ways shall be deemed to be proper delivery to the addressee, that is: the placing or delivery of an article in any receiving box for the deposit of postal article; or the delivery of an article to an officer of the postal Service in the course of his duties; or the delivery of a postal article at the house or office, private mail bag, and private letter box of the addressee or to the addressee (or to his servant or agent or other person considered to be authorized to receive the article according to the usual manner of service.

92. The law guiding transmission of articles by post is the Nigerian postal Service Act. This means that the provisions of section 16(1) of the Federal Road Safety Commission (Establishment), 2007, on pre-action notice must be read in conjunction with the provisions of the Nigerian postal Service Act. In the circumstances, service of the pre-action notice on the defendants  through the postal service as shown on exhibit ‘A’ attached to the counter affidavit means that the defendants were by law deemed to have been served on 25/2/2021 when the said pre-action notice was delivered to the official of the postal service.

93. This also means that the submission of counsel for the defendants that service of pre-action as required by law must be direct service on the defendant which according to counsel should be 29/3/2021, when the said pre-action notice was served at the defendants’ office by postal service. The date of delivery of the pre-action notice to the postal official is the date to be reckoned with when there is dispute as to the date of service as in this case. See Citi Bank (Nig.) Ltd. v. Ikediashi (2020) 13 NWLR (Pt. 1741) 337, SC.

94. By posting rule at common law once a letter or article for posting has been put in the control of the post office, or one of its employees authorized to receive letters, there is a presumption that it will reach the addressee and the onus is not on the addressor to ensure either that it was not lost or was in fact delivered. The posting rule has been enacted into section 64(3) of the Nigeria postal Service Act, Cap. N127, Laws of Federation of Nigeria, 2004 (NIPOST Act). In the instant case, by the posting rule, the pre-action notice posted or dispatched by the claimant on 25/2/2021, which conveyed to the defendants the pre-action notice, was deemed to have been delivery to the respondent upon the same being delivered to the NIPOST for delivery to the defendant, at the address furnished. Therefore, in view of section 64(3) of the NIPOST Act, read together with section 16(1) of the Federal Road Safety Commission, (Establishment) Act, 2007, there is service on the defendants on 25/2/2021, when the letter containing the pre-action notice was delivered to the official of the postal service for onward transmission to the defendants. See WASA V Kalla (1978) 3 SC 21; Akintunde v. Ojekiere (1971) NMLR 91; Salawu Ajide v. Kadiri Kelani (1985) 3 NWLR (Pt. 12) 248; Ogbuanyinya v. Okudo and Ors.No. 2 (1990) 4 NWLR (Pt. 146) 551; Daily Times (Nig.) Plc. v. Amaizu (1999) 12 NWLR (Pt. 630) 242; Jinadu v. Esurombi-Aro (2005) 14 NWLR (Pt. 944) 142; Citi Bank (Nig.) Ltd. v. Ikediashi (2020) 13 NWLR (Pt. 1741) 337, SC.

95. It is clear to me from the case law above that the service of pre-action notice on the defendant was on 25/2/2021 when the said pre-action notice was delivered and put in the care of the postal service. This means the claimant has satisfied the requirement of giving one month pre-action when this suit was filed on 31/3/2021. In view of this finding the preliminary objection failed and same is hereby dismissed.

96. I now turn to determination of the substantive suit.

97. I wish to observe that the claimant’s written address failed to argue the eleven (11) questions submitted for answers in the originating summons, and the claimant formulating issues distinct from those submitted in the originating summons for determination, this may translate to the claimant abandoning questions in the origination summons.

98. A careful perusal of the entire content of the provisions of Order 3 and in particular Rule 16(1) & (2), 17(1)(a), (b) and (C) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, it will revealed that Originating Summons is one of the processes meant for commencement of action before the court for any person claiming to be interested under an enactment, constitution, agreement or any other written instrument, may by originating summons apply to the Court for the determination of any question of construction arising from the instrument and for a declaration of the rights of the person(s) interested, in so far as such question of construction arises from a subject matter over which the Court has jurisdiction.

99. A party activating the interpretative jurisdiction of the Court shall indicate with sufficient particularity the provisions or part of the document sought to be interpreted. The rules of court clearly envisaged that the originating summons must contain question or questions of construction arising under the instrument involved and a declaration of rights of a person's interest. The declaration of rights depends on the answers to the questions formulated for determination in the application by way of originating summons. A claimant intending to benefit from the time and effort saving procedure of originating summons in Order 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, must raise the question or questions for determination on which he seeks the determination of the court. This means the real issues placed before the court for adjudication were those raised in the originating summons and those are the issues this court will have to address. The choice of counsel to formulate distinct questions different from questions submitted in the originating summons and arguing the distinct questions is wrong. This court will have no business considering questions that are different from the questions submitted in the originating summons.  

100.                     Where an issue is not properly raised before the court, it has no business whatsoever to deal with it. A court must confine itself to the issues raised by the claimant in the originating summons. In the instant case, it was the questions and the accompanying reliefs or prayers that the claimant raised that embody the issues for determination in the action commenced by this originating summons. See Shoboyede v. Min. of Lands and Housing, W. N. (1974).5 SC 13; Obasanya v. Babafemi (2000) 15 NWLR (Pt.689) 1.

101.                     In view of the foregoing, this court’s duty is to resolve the dispute on the questions submitted in the originating summons. The claimant’s decision to formulate four distinct questions for determination will show that the claimant opted not to address the court on the questions formulated in the Originating Summons. This choice cannot in any way vitiate the Originating summons. However, the court’s business is to consider the questions formulated in the originating summons and not those issues coined from the eleven (11) issues submitted in the originating summons.

102.                     From the reliefs being sought and the questions posed for resolution, the claimant is contesting the validity of termination of his employment by the defendants in that the defendants did not give notice of termination or paid him salary in lieu of notice, as required by section 11(1) of the labour Act which provides that either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. There is also non-compliance with paragraph ‘A’ of the letter of employment of the claimant which requires notice to be given for termination or payment of salary in lieu of notice.

103.                     However, it is to be noted that termination by notice is provided for under the Act for contracts of employment regulated by it. The pertinent question to be resolved is to find out if the employment of the claimant is the type that is governed by the Labour Act to make the provision of section 11(1) of the Labour Act applicable to the case of the claimant.

104.                     There is no dispute between the parties that the employment of the claimant is one that enjoyed statutory flavour, in which, the procedure for employment and discipline including termination and dismissal of an employee are clearly spelt out. The settled position in such employment is that it must be terminated in the way and manner prescribed by the relevant statute. That position follows from a general rule that when a statute directs that a certain procedure be followed before a person can be deprived of a right, such a procedure must be strictly followed otherwise the court will declare void any act done not in accordance with the prescribed procedure.

105.                     In the case of determination, any other manner of termination inconsistent therewith is null and void and of no effect. Compared to other cases governed by common law or agreement of parties, in which termination of appointment or dismissal should also be in the form agreed to. But failure in form connotes only wrongful termination or dismissal and cannot result to the declaration of such termination or dismissal as null and void. See UBN V Ogboh (1995) 2 NWLR (Pt.380) 647 Imolome V WAEC (199) 12 SC (pt1) 82; (1992) NWLR (Pt.265) 303; (1992) 11-12 SCNJ 121.

106.                     The Labour Act for its purposes, has vide section 91(1) of the Labour Act defines a contract of employment as “any agreement, whether oral or written, express or implied whereby one person agrees to employ another as a worker and that other agrees to serve the employer as a worker.” This definition, is apparently seems to be wide and would have included virtually every employment situation in the non-technical sense. But that would be only if it is considered in isolation. The definition to say the least begs for the definition of the terms “employer” and “worker)’. Although, one is usually the converse of the other, the same section defines the two terms.

107.                     The term “employer” is stated to mean “any person, who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person and includes the agent, manager, or factor of that first mentioned person and the personal representatives of a deceased employer.  And further, a “worker” is said to mean “any person who has entered into or works under a contract with an employer whether the contract is for manual labour or clerical work, or is expressed or implied or oral or written and whether it is a contract of service or a contract personally to execute any work or labour, but does not include:

a)     Any person employed otherwise than for the purposes of the employer’s business; or

b)    any person exercising administrative, executive, technical or professional functions as public officers or otherwise; or

c)     members of the employer’s family; or

d)    the representatives, agents and commercial travellers in so far as their work is carried on outside the permanent work place of the employer’s establishment; or

e)     any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired, or adopted for sale In his own home or on other premises not under the control or management of the person who gave out the articles or the material; or

f)      any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply.

108.                     It is clear that the definition of contract of employment under the section is qualified by the meanings attached to the key words “employee “and “worker as ‘all must be read together to ascertain the contextual import of the expression ‘contract of employment’.

109.                     The definition of “employer” is remarkable as the term is rarely defined and where attempted it is usually the converse of the “employee” or ‘worker”. The concentration is always on either of the latter terms that are commonly used. Therefore, it is still the definition of “worker” that actually serves to delimit the focus. ‘Worker’ as defined categorically made specific exclusions from the otherwise wide import that could have been possibly read into the contract of employment.

110.                     Applying the above provisions of the labour Act to the case at hand, it will be correct to state that the claimant’s employment being a staff of the Road Safety Commission is excluded from the application of Labour Act. The reason being that there is exclusion of any person exercising administrative, executive, technical or professional functions as public officers or otherwise from the definition of worker.. The direct result is that the Act does not apply to workers of such ranks and for the purposes such workers are not employees, servants or workers. The Act as such would not apply to such category of workers to which claimant being a public officer belongs. See Evans Bros.(Nig.) Publishers Ltd. V Fakiyel (2003) 13 NWLR (Pt.838) 564.

111.                     The claimant being a public officer and a person exercising executive functions did not qualify to be described as a worker under the Act. For this category of workers are excluded by the definition under the Act. Therefore, the employment of the claimant is not governed by Labour Act and its provisions. The claimant is wrong to assert that the defendants in terminating his employment did follow the provisions of section 11(1) of the Labour Act, as that provision is not applicable to the case of the claimant i.e the case at hand.

112.                     As point out earlier in this judgment the employment of the claimant is one with statutory flavour. Which means the concerned employee is said, either to hold office-conferring status or is vested with status by statute thus acquiring special legal status beyond the ordinary master and servant relationship and that may override the existence or contents of their contracts of employment. See the case of Idoniboye-Obu v Nigerian National Petroleum Corporation (2003) 1 SC (Pt.1) 40, where the Supreme Court reviewed authorities on this point and held that:

a.      Where an employment is governed by rules and regulations backed by statute such as the Civil Service Rules, as to how the employment is made and determined, a person who claims to be a public servant and seeks the protection of those rules and regulations must show that he was employed subject to those rules and regulations otherwise he cannot rely on them as protecting his employment,

b.      the fact that an organization or authority which is an employer is a statutory body does not mean that the conditions of service of its employees must be of special character which makes the employment one with statutory flavour and giving protection to the employees.

113.                     The Court further held that conditions of service, which will give statutory flavour to a contract of service, cannot be a matter of inference. They must be conditions, which are expressly set out in the statute or statutory regulations made under a subsidiary regulation, such as the Civil Service Rules. Thus, a regulation with statutory flavour must be enacted by the Parliament or any Law-making body as a Schedule to an Act or law or as a subsidiary legislation. In the instant case, the provision of the Road Safety Commission Act in section 5, has conferred on the Board the power to make regulation governing employment of the employees of the 1st defendant. Therefore, the 1st defendant’s 2018 regulation governed the employment of the staff of the 1st defendant including the claimant In this case.

114.                     This class of employees portends intriguingly fascinating features and results worth noting. One peculiar feature is that most of the powers, duties, terms and conditions of the contract of employment are regulated by, conditioned and or predicated upon particular relevant statutes thus conferring the special legal status on the employees involved. Implicit in that position is the fact that the parties cannot lawfully take any action incompatible or inconsistent with the statute neither can they act beyond it. This has far reaching implications on the general nature of the contract since when a contract is confirmed or reinforced by statute, it becomes binding as a statutory provision. The general principles of the law of contract will hence be irrelevant to the extent to which the statute provides and to the extent of any inconsistency will be destitute of legal value.

115.                     The foregoing features mark this class out of the others, particularly as regards the rules of engagement, termination and dismissal, all of which evince special and peculiar results deserving especial attention.

116.                     In Mobil Producing Nigeria Unlinked v Okon Johnson & 14 Ors. (2018) See also Adeniyi v Governing Council of Yabatech (1993) 6 NWLR (Part426) 461;Olaniyan v University of Lagos (1985) 1 SC Reprint 199; (1985) 2 NWLR (Pt.3) 599; (1985) All NLR 363; Olufeagba v Abdul-Raheem (2001) 18 NWLR(Pt.1173) 384 SC the court after observing that “it is now accepted that where the contract of service is governed by the provisions of a statute or where the conditions of service are contained in regulation derived from statutory provision, they invest the employee with a legal status higher than the ordinary master and servant: further emphasized that “it needs be said that where a statute has prescribed the manner of carrying out or the doing of anything, nothing short of that prescription will suffice.

117.                     It is clear that from the nature of claimant’s employment and with the confirmation of claimant’s employment the letter of provisional offer of appointment has been rendered redundant in that the employment of claimant shall be governed by the regulations which made the claimant’s employment have statutory flavour. The letter of employment will be relevant only where it is not in conflict with regulations and there are provisions which are not in the regulations.   

118.                     The facts as disclosed from the processes filed are straightforward and not complicated. The claimant was employed by the 1st defendant his appointment was confirmed and he was also promoted. According to the claimant since his employment has been confirmed as a permanent and pensionable employee, his appointment cannot be terminated summarily on the ground of no service required when he was neither queried and refused to answer or refused to face disciplinary proceedings.

119.                     Vide exhibit 2, a complaint was received against the claimant from one Mr.Patrick Arinze Okafor, wherein it was alleged that the claimant had collected the sum of N150,000.00 (One Hundred and Fifty Thousand Naira), for him to secure employment for Mr. Patrick Arinze Okafor’s sister by name Nawacha Chekwube Cybthia, with the 1st defendant. The claimant could not secure the employment and did not refund the N150,000.00 (One Hundred and Fifty Thousand Naira).

120.                     Consequently, vide exhibit 3, the claimant was queried and his answer to the query was attached to the counter affidavit as exhibit 4. In his reaction to the complaint against him the claimant admitted receiving the N150,000.00 (One Hundred and Fifty Thousand Naira), from Mr. Patrick Arinze Okafor, but stated that it was a loan for him to buy a plot of Land at Nteje.

121.                     However, dissatisfied with the answer to the query, the matter was referred to the 1st defendant’s disciplinary panel FDP to investigate the allegation of misconduct levelled against the claimant. The panel conducted its proceeding with the claimant and the complainant in attendance. The complainant and his two witnesses testified at the proceedings and they were cross examined by the claimant. The claimant also testified in his defence. At the end of the hearing the panel found the claimant wanting and recommended termination of his employment. see exhibit 5. The claimant had his employment terminated vide exhibit 3, Letter dated 18/12/2020.

122.                     There is consensus that the claimant’s employment has statutory flavour which means in taking disciplinary action against the claimant there must be strict compliance with the statutory provisions governing the employment. there is also no dispute that any disciplinary action to be taken must be in line with the provisions of the Federal Road Safety Commission Regulations on Discipline 2018, which is exhibit 1 in the counter affidavit of the defendants.

123.                     The defendants have insisted in their defence that the claimant was accused of misconduct contrary to Rule 31 of the Federal Road Safety Commission Regulations 2018, see exhibit 3 query issued to the claimant and his response exhibit 4. It is as a result of the query and answer to the query which was not satisfactory thus why the claimant appeared before the disciplinary investigation Panel FDP to defend himself. At the end of the hearing the panel found the claimant culpable of the charge of misconduct levelled against him and recommended termination of his employment. The recommendation was given effect as per exhibit 4 attached to the claimant’s affidavit in support of the Originating Summons. Following this procedure the defendants insisted that due process was followed in terminating the claimant’s employment and there is no breach of claimant’s right to fair hearing.

124.                     The provisions of Regulations 52, 53, 54, 56, 59, 60, 61 and 62 of the Regulations on Discipline 2018, have made ample provisions to be followed in taking disciplinary action against a member of staff of the 1st defendant.

125.                     The defendants have following receipt of complaint against the claimant caused a query to be issued to the claimant see exhibit 3. The claimant response to the query is as contained in exhibit 4.  A hearing was conducted where the complainant and the claimant were in attendance. At the conclusion of the hearing the FDP found the claimant liable as charged and recommended termination of claimant’s appointment. See exhibit 5.

126.                     Having regards to the provisions of the procedure for discipline stated in above regulations it will be correct to say that there seems to be compliance with the laid down procedure for discipline in the proceeding for investigation of the claimant on gross misconduct contrary to regulation 31. And there cannot be said to be breach of any right to fair hearing as claimant has given ample opportunity to defend himself as evidence by exhibit 5 the claimant had cross examined witnesses at the hearing and he also testified in his defence.

127.                     However, the punishment of termination imposed on the claimant seems to be harsher than what the regulation has provided. This is notwithstanding the provisions of Regulation 31 of the Regulations on Discipline 2018, which provides:-

‘’Any member of the corps who behaves in a scandalous manner commits a gross misconduct and shall be liable to termination of employment.’’

128.                     Although, the provision of Regulation 31 of the Regulations on Discipline 2018, quoted above has stated punishment for this misconduct to be termination, the proviso to Regulation 50 (1) (a – k), has whittled down the punishment of termination in case where the misconduct occasion any financial loss or damage of property, in which case the punishment shall be full payment of the money lost or replacement of the said lost or damaged property within three months of award of the punishment. It is only when the there is failure to pay the lost money that punishment of termination of appointment will be imposed.

129.                     Exhibit 5 which contained the report of the FDP has nothing to indicate that the punishment of full payment of the money lost as envisaged by the proviso to Regulation 50 (1) (a-k), was awarded by the FDP against the claimant and he did not pay the lost money within three Months. This finding clearly shows that the FDP did not award the appropriate punishment against the claimant.

130.                     In the circumstances the termination of claimant’s appointment having not complied with provision of Regulation 50(1) (a-k) cannot stand.

131.                     The defendants have through their counsel argued that the depositions in paragraphs 15, 16, 17, 18 and 23 of the affidavit in support are in conflict with the depositions of the defendants in paragraphs 10, 11, 12, 13 and 17 of the counter affidavit. Counsel contended that contrary to the depositions that claimant was not given query or invited to defend himself of any allegation before the defendant’s vide exhibits 2, 3, 4 and 5 attached to the counter affidavit, the claimant was queried, he replied the query, a panel of investigation was set up where he appeared and defended himself.

132.                     Counsel contended that the claimant lied on oath when he stated that he was never issued with any query and was never issued with any query and was never invited to defend himself of any allegation before the defendants’ panel. With this counsel asserted that the claimant is not witness of truth in view of exhibits 2, 3, 4 and 5 attached to counter affidavit.

133.                     I have had a hard look at the claimant’s depositions in support of the Originating Summons there is nothing therein to revealed any conflict or lies, my understanding of the depositions in paragraphs 17 and 18 of the affidavit in support is that the claimant is saying that he was never served with any query and refused to answer to warrant termination of appointment or that there was no time he was invited to appear and defend any allegation before defendant’s panel  and he failed defend or neglected to attend to answer the issues alleged against him. This clearly shows that clamant

134.                     In effect what the claimant is saying is that he has answered query issued to him satisfactorily and appeared and defended himself before the defendant’s panel. Therefore, there is no basis for termination of his employment. This does not in any way conflict with defendants’ assertions in their defence nor amount to lies. However, it is to be noted that this court is not sitting on appeal on the case that was tried at the disciplinary hearing.

135.                     The claimant is also asking for payment of all financial benefits accrued to the claimant from the month of the purported termination of his employment till date. From the way the relief was couched it is a clam for special damages which by law is required to be specially pleaded and strictly proved. See NNPC v CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174, where the Supreme Court, aptly held that special damages are never inferred from the nature of the act complained of. See also UNILORIN TEACHING HOSPITAL v ABEGUNDE (2013) LPELR 21375 (CA); ARAB CONSTRUCTION LTD & ANOR v ISAAC (2012) LPELR 9787 (CA).

136.                     The law has always been that parties must succeed or fail on the strength of their case as presented before the Court. It is a well-established principle of law that special damages claimed by a party must be strictly proved. See  Dumez v. Ogboli   (1972) 3 SC 196 and Agunwa v. Onukwue (1962) 1 All NLR 537. Whenever special damages are claimed, the party so claiming has an uphill task of a strict proof. In effect the rule requires anyone asking for special damages to prove strictly that he suffered such special damages as he claimed. Thus, the claimant should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to an award under that head. The general law of evidence as to proof by preponderance in civil cases operates in discharging such burden of proof. In the instant case, the claimants failed to prove special damages. The failure to particularize and strictly prove special damages by qualitative and credible evidence renders the claim for special damages liable to be dismissed.

137.                     The law is well settled that for a party to be awarded any relief by a court of law, that party must not only plead with particularity but also prove by credible and convincing evidence that he is indeed entitled to the relief he seeks. A court of law has no jurisdiction to grant to a party a vague relief. The way the claim for financial benefits accrued to the claimant was couched is vague and uncertain. This means the claim cannot be granted due to uncertainty. See University of Jos V Dr. M. C. Ikegwuoha (2013) 8 NWLR (PT.1360) 478, @ Pp. 498, paras. C-G; 505, paras. G-H; 506, A-B, where the Supreme Court has this to say on vague relief:-

‘’A claim that is vague and lacks certainty is no claim at all. In the instant case, in paragraph 13(b) of the respondent’s statement of claim, he sought an order directing the appellant to confirm him as a lecturer in the Department of Political Science of the University of Jos with effect from 27th January 1995 “with all my promotions, allowances and entitlements”. The respondent did not state with certainty what his allowances and entitlements were and how he earned his promotion from one grade to another grade and for which period. These vital facts were not backed by any evidence. All the reliefs regarding promotions, allowances and entitlements were vague, uncertain, unascertainable and lacking in particulars and proof by evidence. All the reliefs pertaining to promotions, allowances and entitlements being reliefs that were vague, uncertain and lacking in particulars and proof by evidence must fail.’’

138.                     The relief on financial benefits must fail as this court is not allowed in law to make an order in vain or an order which is incapable of enforcement. The claimant did not help matters by not disclosing what those financial benefits are and the quantum and how he came about the quantum.

139.                     From the analysis of the facts and evidence in this case the claimant succeed only in part as stated below:-

                               I.            The punishment of termination of claimant’s appointment is hereby set aside in view of violation of the proviso to Regulation 50(1) (a-K) of the Federal Road Safety Commission Regulations on Discipline 2018, made pursuant to section 5 of the Federal Road safety commission (Establishment) Act 2007.

                            II.            The punishment of full payment of the lost money in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) is substituted for termination of appointment as per exhibit 3 of the affidavit in support of the Originating Summons.

                         III.            The claimant is to pay the full money in the sum of N150,000.00 (one Hundred and Fifty Thousand naira) within three months from the date of this judgment. Failing which the claimant’s appointment stands terminated.

                          IV.            Evidence of payment of the lost money shall be submitted to the Registrar of this court.

                             V.            The defendants are hereby ordered to reinstate the claimant back to his post in the employment of the 1st defendant with immediate effect. However, if the claimant failed to pay in full the lost money within three months from the date of this judgment his appointment shall stands terminated.

140.                     I make no order as to cost.

141.                     Judgment is entered accordingly.

 

 

 

Sansi Kado,

Judge.

REPRESENTATION:

Oliver A. Osang, Esq; for the claimant

Chinwe C. Ngbebor, Esq; for the defendants, holding brief of Otawa Joseph, Esq;