IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

                        HOLDEN IN ABUJA

BEFORE HIS LORDSHIP:                                     

HON. JUSTICE O.O. OYEWUMI

DATE: 2ND MAY, 2023                              

SUIT NO: NICN/ABJ/57/2022

BETWEEN

ABUBAKAR SADIQ UMAR ……………………………………… CLAIMANT                                               

 

AND

1.     NIGERIAN CUSTOMS SERVICE BOARD

2.     NIGERIAN CUSTOMS SERVICE

3.     COMPTROLLER OF CUSTOMS GENERAL

4.     HON. MIN. OF FINANCE AND BUDGET……………...DEFENDANTS

 

                                                          JUDGMENT

 

1.      The claimant on the 22nd of February, 2022 took out a General Form of Complaint against the defendants and subsequently, amended same on the 17th of October, 2022 praying to the Court for the following reliefs;

 

A.    A DECLARATION that the purported suspension of the Claimant from the Nigerian Customs Service by the joint and several action of the defendants, conveyed vide letter with reference No. NCSB/ABI/DISC/VOL.11/149 dated 8th day of March, 2018 is in contravention of all the relevant provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Customs and Exercise Management Act, Public Service Rules, The African Charter on Human and Peoples Right, Labour Conventions and all known principles of natural justice, equity and good conscience. Consequently, the purported suspension of the Claimant is null, void and of no effect whatever.

B.      A DECLARATION that the purported Dismissal of the Claimant from the Nigerian Customs Service by the Joint and Several action of the defendants conveyed vide a letter with reference no. NCSB/ABJ/AP & D/94/S.3 VOL.XVI/46 dated 7th October, 2021 is in contravention of all the relevant provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Customs and Exercise Management Act, Public Service Rules, The African Charter on Human and Peoples Right, Labour Conventions and all known principles of natural justice, equity and good conscience. Consequently the purported Dismissal of the Claimant is null, void and of no effect whatever.

C.      AN ORDER of this Hon. Court setting aside the earlier purported suspension of the Claimant from the Nigerian Customs Service contained in a letter dated 8th March, 2018 with reference no. NCSB/ABI/DISC/VOL.11/149 as null, void and of no effect whatever.

D.     AN ORDER of this Court, setting aside the purported Dismissal of the Claimant from the Nigerian Customs Service contained in a letter dated 7th October, 2021 with reference no. NCSB/ABJ/ AP & D/94/S.3/VOL. XVI/46 as null, void and of no effect whatever.

E.      AN ORDER of this Hon. Court compelling the defendants to reinstate the Claimant as an Officer of the Nigerian Customs Service with all rights, privileges and pre requisites attendant of his status which the Claimant is entitled to wear (Chief Superintendent of Customs) and assume all its ramifications having regard to the promotion exercise.

F.       AN ORDER of this Hon. Court directing the Defendant to pay to the Claimant all his Salaries, Emoluments, Allowances, Benefits and/or privileges due to the Claimant effective from the date of the suspension of the Claimant from the Customs service (8th day of March, 2018) and to accord all such benefits as foretasted associated with the rank of Chief Superintendent of Customs to the date of determination of this suit and subsequent thereafter.

G.     AN ORDER of this Hon. Court mandating the Defendants to pay the Claimant the sum of One Hundred Million naira (N100, 000,000) being the general damages for the delay, embarrassment and pecuniary loss suffered by the Claimant as a result of the actions of the defendants.

H.     AN ORDER directing the defendants to settle the Cost of this Action.

 

2.      It is the claimant’s case vide his amended statement of facts that he was an employee of the 2nd defendant employed by the 1st defendant and that he rose through the ranks to the position of an Assistant Superintendent of Customs. That sometimes in the year 2017 while on duty at Apapa Command Lagos his supervising officer confronted him with an allegation that among the series of containers passed through his team with an intelligence report that two of the containers with numbers MAEU 8158495 and MRKU 5906120 were suspected to contain a concealed banned substance (tramadol). It is equally the averment of the claimant that he was an examination officer and that the examination team comprises of DSS, NDLEA, POLICE and NAFDAC. He further avers that his responsibility in the team representing Customs is to ensure that goods came in to the country is not banned items by the Nigerian Customs Circular, listed in import prohibition list. He went on to state that at the time his team examined the alleged two containers none of them has banned item. Continuing, the claimant avers that he was subsequently issued query alleging misconduct for improper examination of the two containers and that even before he was served with the query, a prepared letter for his suspension was ready in that while the query letter was dated 7th March 2018, suspension letter was dated 8th March 2018 thus his query and suspension took place in less than 24 hours noting that he was not given fair hearing neither was he given opportunity to sight or confirm the allegation contained in the two containers or to see the re-examination report on the said containers. Also, that he was suspended from the service of the 2nd defendant sometime in the month of March 2018 to October 2021 and also without committing any wrong by the Public Service Rule. Going further, it is the averment of the claimant that at the time when the incident happened that is, October /November 2017, the substance referred as banned tramadol was never in the import prohibition list or banned items in Nigeria.

 

3.      The defendants in opposition filed notice of preliminary objection challenging the jurisdiction of this Court to entertain this case and urged the Court to dismiss or strike out the suit in its entirety for want of jurisdiction.

 

The grounds upon which the application is brought is;

That this case is statute barred having regard to the provision of Section 2 of Public Officer’s Protection Act.

 

4.      Also, filed along the Notice of Preliminary Objection is a written address wherein learned counsel of behalf of the defendants formulated two issues for

1.         Whether in the circumstances of this case and the facts before this Honourable Court and having regards to the provisions of Section 2 of Public Officers Protection Act, the Plaintiff is not caught by the statute of limitation in bringing this action.

2.         Whether the plaintiff is entitled to the reliefs sought in this suit as presently constituted.

5.   On issue one learned counsel submitted that it is trite that limitation law is procedural, clearly setting out time which action must be brought against a public officer and that the cause of action in this suit arose on the 7th October 2021while the claimant instituted the suit on 23rd February 2022 after the statutory three months required by law to initiate the action against the defendant. He equally submitted that the holder of the office of the defendant in this suit is a public officer therefore an action against such an office or entity must commence within the stipulated three months when the cause of action arose. He cited in support Section 2 (a) of Public Officers Protection Act. It is equally the submission of counsel that the plaintiff’s claim is statute barred and that the Court lacks jurisdiction to entertain same. He cited in support of his assertion the case of Francis Ofili v. Civil Service Commission [2008] All FWLR (Pt. 4340) @ 1623; William O. Olagunju & Anor v. Power Holding Co. of Nig. Plc [2011] LPELR-2556 (SC); Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors [2007] SC 75; Kalogbor v. General Oil Ltd [2008] All FWLR Pt. 418 Page 303. He further stated that the jurisdiction of a Court is not inferred or imagined but statutory depending on the regime as Courts are set up under Constitution. That if the statutes do not grant jurisdiction to a Court, the Courts and parties cannot by consent endow it with jurisdiction. He cited in support the case Adesola v Abidoye [1999] 14 NWLR (Pt.637) 28; Lawal v. Oke [2001] 7 NWLR (Pt. 711) 88. He concluded by submitting that based on the authorities cited and the legal argument canvassed, the plaintiff is barred from instituting this action and a such the Court lacks requisite jurisdiction to adjudicate on the action as presently constituted. He urged the Court dismiss the suit along with the claims sought for want of jurisdiction.

6.   On issue two, counsel submitted that in a claim for declaratory relief the plaintiff is to establish his claim on the strength of his claim and not rely on the weakness of the defense if any. He cited in support the case of A. G Rivers State v. A.G Bayelsa [2013] 3 NWLR (Pt. 1340) @ 123.  He equally submitted that the law is trite that a claim for declaratory relief is an invitation to the Court to make pronouncement as to the legal position of the state of affairs and that it is accepted that the action for declaration is useful and is an important procedural method for ascertaining and determining the validity of orders or decisions of inferior Courts or Tribunals will be granted upon fulfilment of pre-conditions. He cited in support the case of Central Bank of Nigeria v. Jacob Oladele Amao & 2 Ors [2011] Vol. 201 LRCN. In conclusion it is the submission of learned counsel that from the totality of all the averments contained in the plaintiff’s affidavit and its written address, it is clear that the plaintiff is out to cause economic sabotage, frustrate effort of Federal Government of Nigeria in his positive investment drive from both local and foreign investors and cause mistrust/disaffection among the agencies of the government he has suit in this case. He urged the Court exercise its judicial power to strengthen the operations of the 2nd defendant by refusing the grant of this frivolous and vexatious application as presently constituted with cost against the plaintiff.

7.      Also, the Defendants in response filed their joint statement of defence on the 24th day of March, 2022 which was amended on the 29th day of June 2022 and subsequently amended on the 15th day of November 2022 wherein they averred that the claimant was an employee of the 2nd defendant employed by the 1st defendant and later promoted to Assistant Superintendent of Customs.  It is equally the averment of the defendants’ that the team of NCS, DSS, NDLEA, POLICE and NAFDAC normally conduct joint examination on containers, on the day of the alleged incident NAFDAC were on strike thus the claimant should not have passed the containers as pharmaceutical products are within the knowledge and or input of NAFDAC. The defendants reiterated the claimant cannot claim that the alleged containers were not carrying banned substance without the involvement and presence of NAFDAC. They further posited that the claimant was issued query and that his suspension was a legitimate administrative process to ensure that he does not have access to tamper with documentary evidence to be presented in Court/administrative tribunal. That the claimant was given opportunity to confirm and defend the allegation leveled against him by his testimony which he freely gave to the information conference (interrogation) set up by the defendant following a letter of complaint emanating from the office of the National Security adviser demanding an investigation into activities of the claimant and other officers. That the claimant in his testimony before the committee admitted he was the examiner and that the signature on the examination sheet were his, according to him the papers were signed before going for examination which the usual practice among examiners and that he was physically present at the examination bay stating that he only saw diclofenac however if he should see tramadol he does not know the allowable milligrams. The defendants equally averred that investigation revealed that the importation was fraught with procedural anomalies ranging from procurement to clearing and joint examination variously conducted on six containers but the document obtained from Terminal Operator shows that Customs has put all the containers on hold before similar action by NDLEA and NAFDAC. That investigation further revealed that out of the six containers, the claimant examined two containers and when re-examined tramadol were concealed in a higher milligrams allowed into the Country and that NAFDAC clearance was not obtained neither was NAFDAC number inscribed on any of the cartons. That the claimant was negligent in passing the containers when NAFDAC was on strike and that he did not give due diligence expected of him in examining the content of the containers and that he admitted before the committee that he erred in carrying his duty. They urged the Court to dismiss the claimant’s suit together with the reliefs as same is frivolous, vexatious and lacking in merit.

 

8.      In response to the defendants’ amended statement of defence filed a reply dated 27th day of June 2022 wherein he avers that the claimant was not the custom representative at the examination of the containers in issue and that the claimant did not render any significant role in either the examination or the release of the said containers. It is equally his averment that the claimant was issued query and suspension on a single day with no room for fair hearing. That the claimant never admitted examination or improper examining of banned item. He further posited that it is the duty of the releasing officer to authorize the clearance of a container not examination officer.

 

9.      On the 13th December 2022, claimant opened his case and testified for himself as CW by adopting his written statement on oath as his oral evidence. Documents tendered through him were admitted in evidence and marked as Exhibits A-A8. He was subsequently cross examined by the learned counsel on behalf of defendants. On the 13th December 2022 defendants equally opened their case and one B.K Ajibola testified as DW1 and adopted his witness statement on oath as his evidence. Documents were also tendered through him were admitted and marked Exhibit B-B10. He was cross examined by counsel on behalf of the claimant. The matter was adjourned for adoption of final written address.

 

10. On the 3rd day of January 2023, counsel on behalf of the defendants filed their final written address wherein he formulated three issues for the Court’s determination thus:

1.         Whether the claimant has proved his case to be entitled to the claims sought

2.         Whether it is not within the power of service to discipline an erring officer including the claimant.

3.         Whether the claimant can turn around to complain of lack of fair hearing even when he was queried, invited for interrogation, suspended and eventually dismissed from service through a process he participated in?

11. Learned counsel before delving into the issues formulated address the Court in respect of the objection of the defendants on Exhibits E, G and H. It is his contention that the said documents are Public documents wherein only the Certified True Copy is admissible. He cited in support of his assertion Section 102 and 104 of Evidence Act, 2011.  He went further to state that failure of the claimant to subpoenaed a witness who has the custody of the documents or tender a Certified True Copy is vital to the admissibility of the documents as such he urged the Court to expunge same from the list of documents admitted.

12. On issue one it is the submission of learned counsel that the law places the burden of proof in civil matters on the plaintiff/claimant to satisfy the Court by leading concrete, cogent, valid and compelling evidence with a view to establishing his claim. He cited in support of his assertion the case Oredola  Okeya v. B.C.C.T [2014] 57 NSCQR 230 @ Page 244-255. Counsel equally submitted that pleadings are pillars upon which party’s case is founded and as such parties are bound by their pleadings to the extent that any piece of evidence during the trial does not emanate from the pleadings goes to no issue. He cited in support the case of Nwokorobia v. Nwogu [2009] 10 NWLR (Pt. 1150) P. 553. He further posited that it is assertion of the claimant he was given query for a work done since done in 2017 in march 2018 almost a year however all through his pleadings he never stated that he was on investigation which later led the said query that was served on him and subsequently suspended in line with the Public Service Rules, 2009. That the grouse of the matter is not the fact that tramadol was a banned product or not but the fact that claimant failed woefully to carry out his job as expected and because of the fact that the action of the claimant was the one done in prejudice to security of the state and to sabotage the effort of the Government through the service, the claimant not been someone who has deep knowledge of pharmaceutical products went ahead in the absence NAFDAC  the agency that specializes in that regard examined the product and report same even though he did not know the allowable milligrams. He went on to state that a declaratory relief is not granted as a matter of course, once the claimant has failed to prove his case independent of the defendant’s defence, such a claim most fail. He cited in support of his assertion the case of Ehinle v Ikorudu Local Govt. [2021] 1 NWLR (PT. 1757) P. 279 @ P. 342 Paras. A-B. Learned counsel also submitted that by the provision Public Service Rules 2009 it is the duty of the defendant to give query to the claimant but there is no any time within which suspension could be communicated so far there is prima facie case made against him in the report and he urged the Court to hold.

13. On issue two learned counsel submitted that it is the duty of the defendant to discipline to the claimant which was what was rightly done and same was reiterated by DW1 that the procedures stipulated in the Public Service Rules was duly complied with and that the claimant was given the opportunity to defend himself by making a representation during the proceeding at investigation/interrogation unit in which DW1 was a member.

14. On issue three, counsel submitted that fair hearing is not a sword but a shield and as such the Court will not allow itself to be dragged into the voyage of technicality to render null void every action that comes before it. Going on, he contended that it is the requirement of Public Service Rules 2009 that a query be given and the erring officer be invited for interrogation before dismissal from service and that the said procedure was duly adhered to leading to dismissal of the claimant from service because of his inability to exonerate himself. That it is not non acceptance of the defence of the claimant that ripen into lack of fair hearing as the claimant is portraying it before the Court as fair hearing is a situation where a party is not given any opportunity at to defend himself. He cited the case of C.B.N v Dinneh [2021] 15 NWLR (Pt. 1798) P. 91 @ 129-130. That the basic criteria and attributes of fair hearing have been outlined in case law and the rationale is that it imposes a standard of justice in which the Court must be fair on both sides of the conflicts. He cited in support the case of Ndu v. The State [1990] 7 NWLR (Pt.164) 550, 578 Ogundoyin v. Adeyemi [2001] 33 WRN 1, 13-14 [2001] 13 NWLR (PT. 730) 403. He went on to submit further that the claimant during cross examination admitted that he appeared before the investigation panel and answer questions put to him and that he was never foreclosed from asking questions. That in addition, the sole witness of the defendant also testified before the Court the claimant was given ample opportunity to defend himself at all the stages of the process. On the whole he urge the Court to dismiss the claim of the claimant against the defendant as same is not supported by credible and relevant evidence upon which the Court can base its judgment in his favour.

 

15. The Learned Counsel on behalf of the claimant equally filed his final written address on the 16th day of January 2023 wherein he distilled only one issue for determination; which is whether upon the proper evaluation of evidences led the claimant has proved his case to be entitled to the claims sought??

 

16. Addressing that issue learned counsel submitted that it is not true that the allegation of the defendants against the claimant is not on examination of banned substance known as tramadol. He cited in support of his assertion exhibit A2 and further stated that it is clear from that the allegation against the claimant is examination of banned substance (tramadol). He equally stated that DW1 responding to question during cross examination stated that tramadol is not a banned substance but a controlled drug upon which the claimant was issued query and subsequently dismissed. He went on to submit that it is clear from the above that the allegation against the claimant is wrong, faulty, void abnitio. He cited in support the case of Chief Olabode George v. Federal Republic of Nigeria 2014] 5 NWLR (Pt. 1399) 1 @ 22 Para A. On fair hearing counsel submitted that assuming but not conceding that the claimant had committed a wrong contrary to a written law or policy of the Nigerian Customs Service? It is the contention of learned counsel that DW1 told the Court that the disciplinary procedure adopted at Nigerian Customs is Public Service Rules. That the said mandatory disciplinary procedure has not been followed by the defendants. He cited Rules   030403, 030302 to 030306 of Public Service Rules. He equally went further to state that considering the period between the query and suspension which is less than 24 hours it is certain that the claimant was not given adequate opportunity to defend himself. He cited in support the case of Eze V. FRN [2017] LPELR-42097 (SC). In conclusion counsel submitted that the deliberate failure of the defendants to give the claimant a fair hearing faulted their punishment against the claimant. He urged the Court to so hold.

 

17. Claimant on reply to the defendants’ written address submitted that Exhibit G which is list of prohibited items as 2017 referred to by the defendant is admitted along with certificate of compliance in line with Section 84 of Evidence Act 2011 thus is proper before the Court. He went on to submit that the argument of the defendants to the effect that failure of the claimant to subpoenaed a witness who has the custody of Exhibit E g and H rendered the documents admitted worthless thus urging the Court to expunge same is misleading, wrong and contrary to the Rules of this Court. That on Exhibit E and H or any public document and May also chose to demand the document through the counsel to the defendant by serving him a notice to produce the document. Or the Court sou motu can order any party to produce a document within his custody in the interest of justice in the matter. He cited in support Order 44 Rule 1 of the Civil Procedure Rules of Civil Procedure Rules 2017. He urged the Court to grant the reliefs sought by the Claimant having proven his case.

 

18. Upon a careful consideration of the Originating process filed by the Claimant, the defendants’ Notice of Preliminary objection, the defendants defence, the written address in opposition and the submissions and authorities cited by learned counsel to both parties in their final written addresses and reply of the claimant. It is my humble view that the issues for the just determination of this suit are

1.     Whether or not this Court is vested with the jurisdiction to entertain this suit and if the answer is in the affirmative.

2.     Whether the claimant is entitled to the reliefs sought

 

19. Respecting issue one, the claimant vide his reply to the defendants Preliminary objection is contending that the Preliminary objection is incompetent and same be struck out on the ground that it was supported by an affidavit setting out the facts and circumstances upon which the application is predicated. The Apex Court in the case of Karshi v. Gwagwa [2022] 9 NWLR (Pt. 1834) 139 held that generally to determine if an action is statute barred, it is the originating process that the Court should look at to find out the date that the cause of action occurred but where an objection that the suit is statute-barred is considered and determined after the conclusion of evidence  as in the instant, all processes and evidence before the Court must be considered especially where the objection is determined as part of or along with the final judgment on merit of the dispute in the case like is done in this instance. The Court went further at page 162, Paras A-D to hold that the general rule that it is the originating process that should be considered limits the Court from considering the processes filed by the defendants in response to the originating process, even when objection was determined by trial Court in its final judgment after the conclusion of evidence. In such cases, the Courts ignore other evidence in the case that disclose the actual cause of action and pretend that it does not exist and such approach violates the fundamental principle of fair hearing that requires the Court to consider all evidence on a point in determining that point. The Court held that since the preliminary objection was determined along with the Originating Summons, the trial Court was bound to look at all the processes before it for consideration. It is in the light of the above that I will consider all the processes and evidence in this case in the determination of the objection raised by the defendants. Consequent upon the above stated supra, Claimant’s objection is discountenanced.

 

20. Learned counsel for the defence in his Preliminary objection contended that the action is statute barred having been filed outside the statutory period of three months provided in Section 2 (a) of POPA and thus rubs the Court of the requisite jurisdiction to entertain the matter. Jurisdiction is the authority of the court to adjudicate over the questions which gave rise to the cause of action. Jurisdiction is the life blood and bedrock of all trials without which the trial will amount to a nullity. It is the life blood on which all trials thrive. See the following cases; Odom v. P.D.P [2015]6NWLR (Pt 1456)527@548, Paras C-D; Okolonwamu v. Okolonwamu [2019]9 NWLR (Pt 1676)1@21, Para A and; GTB v. Toyed (Nig.) Ltd & Anor [2016] LPELR-4181 (CA.). By virtue of Section 2 of the Public Officers Protection Act, where any action/prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority; the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof.  The above is a limitation law that restricts the right of litigant to access the Court. The overriding purpose of limitation laws is expressed in the latin maxim “interest rei publicae ut sit finis litium” which is to the effect that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits. The Courts have held that laws like limitation laws which takes away citizen’s right to access the Court must be construed strictly. See Nigerian Army v. Yakubu [2013]8 NWLR (Pt 1355)1@17, Paras E-F; Nwosu v. Imo State Environ. San. Auth [1990]2 NWLR (Pt 135)688@7323, Paras E-H.

 

21. It is worthy of note that the rule created by Section 2 of the POPA that the period of limitation in Section 2 (a) of POPA is not absolute and as such will not apply in certain situations such as cases of breach of contract; recovery of land; claims for work and labour done and continuing injury. See the cases of Radiographers Reg. Board, Nig v. M.& H.W.U.N[2021]8NWLR (Pt 1777)149; Roe Limited v. University of Nigeria [2018] LPELR- 43855 (SC)1@21 Paras D-G and; National Insurance Commission v. Shehu Aminu & Anor [2011] LPELR-19751(CA); Abba Aji  JSC;  in the case of Idachaba v. University of Agriculture, Makurdi [2021]11 NWLR (Pt 1787)209; held that Section 2(a) of POPA applied to the case which was founded on employment/contract of service. That decision was a departure from the earlier decision of the apex Court in the case of National Revenue Mobilization and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 @ 269-271, Paras H-; that Section 2 of POPA does not apply to cases founded on contracts which includes contracts of service and for a while became the state of law as to the application of Section 2 of POPA to cases founded on contracts including contract of employment. Interestingly, the learned jurist Abba Aji JSC was the same person who in the case of Rahamaniya United Nig Ltd v. Min., FCT. [2021]17 NWLR (Pt 1806)481@497, Para H, decided two months after Idachaba’s case, supra while delivering the lead judgment quoted with approval the dictum of Galinje JSC in ROE v. UNN 2018] LPELR-43855(SC)21-22, Paras D-A, [2018]6 NWLR (Pt 1616)420 that; “The Public Officers Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done” (Emphasis mine). The state of the law as to the application of Section 2 of POPA to cases founded on contracts which includes contract of service became uncertain given the above decisions. However, it is worthy of note that this conflict has been laid to rest by the Supreme Court in one of in its recent decision in Oluremi Obasanjo & Anor v. Wuro Bogga Nig Ltd & Ors unreported appeal no SC.82/2010 delivered on the 17th day of June, 2022 wherein the apex Court held that the provision of Section 2(a) POPA is not absolute and without its limitations. Such limitations are cases predicated on cases of recovery of land, breach of contract or claims for work and labour done- CIL Risk and Asset Management v. Ekiti State Government & Ors [2020] LPELR-9565(SC). The provisions of Section 2(a) of thse Public Officers (Protection) Act do not apply, for the purpose of limitations of actions, to actions predicated on contracts or for recovery of land- Osun State State Government v. Danlami [2007]9 NWLR (Pt 1038)66; NPA v. Lotus Plastics [2005]24 NSCQR, 56; CBN v. Adedeji 2004]13 NWLR (Pt 890)226 and Rahamaniya United (Nig) Ltd v. Minister of FCT & Ors [2021] LPELR-55633(SC). The Supreme Court by the above decision made it clear that the provisions of Section 2(a) for the purpose of limitation does not apply to cases predicated on contracts amongst other things. It is thus clear from the above that the protection offered public officers by Section 2 (a) of POPA permits certain exceptions which are; cases of breach of contract; recovery of land; claims for work and labour done; claims on continued damage/injury amongst others. The Court before now have said one or two things about the categories of contracts that are covered by this exception. The Supreme Court have before now decided that such contracts to which Section 2(a) of POPA will not apply to  includes contract of service when in the case of National Revenue Mobilization and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Orssupra; per Ariwoola JSC (now CJN) held thus; “Ordinarily, the purpose of the public officers protection law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of…There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construction General, Farsura Cagefar Spa & Anor [1974] All NLR (PT. 2) 463; Osun State Government v. Danlami Nig. Ltd [2007] 9 NWLR (PT. 1038) 66; [2007] 3 SC (PT. 1) 131; [2007] 6 SCM 145; [2007] LPELR-2817.”… I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred. In sum, I hold that the learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents. The issue is accordingly resolved against the appellants” [Emphasis mine] It is therefore now clear beyond any shadow of doubt that cases founded on contracts including contract of service/ employment are not limited by the provisions of Section 2 (a) of POPA. A perusal of Claimant’s statement of facts evinces that Claimant’s claim is predicated on contract of service and claims for continuing damage/injury. I therefore, find that the period of limitation in Section 2(a) of POPA is not applicable to this case. I so hold.

 

22. Before proceeding to the merit of this suit, it is germane for me to consider objection of learned defence counsel to some documents tendered by the Claimant. He contended in his final written address that exhibits E, G and H tendered by the Claimant, (which are Circular banning tramadol substance, and import prohibition list as at 2017 on the ground that they are public documents that can only be tendered vide subpoenaed witness or certified true copy. Claimant in response to the objection of the defendants submitted that the entirety of the defendants’ argument is misconceived and untenable. That exhibit G (List of Prohibited items as at 2017) is computer-generated evidence tendered together with certificate of compliance in line with Section 84 of evidence Act 2011. He further argued that exhibit E and H or any public document the claimant is at liberty to subpoena the maker of the document, demand through counsel by serving notice to produce the document or the Court can order suo motu as provided by Order 44 Rule 1 of Civil Procedure Rules 2017(hereinafter referred to as NIC Rules). The Claimant in support of his assertion as can clearly be seen at page 96 gave the defendants a notice to produced those documents and page 229 of the record of this case again gave notice to produce the documents objected to by the defenants and same acknowledged by the 2nd defendant vide its stamp on the 20th day of June 2022. It is pertinent at this point to correct learned defence counsel on the nomenclature given to the exhibits referred to in his objection as exhibits E, G and H, Exhibits tendered during trial are Exhibits ‘A’ series tendered by the Claimant and ‘B’ series tendered by the defendants. That said, it is apparent that learned counsel is referring to exhibit A4 (which is circular banning tramadol substance) dated 3rd February, 2020, Exhibit A6 (which is import prohibition list). Obviously, he got the Claimant’s counsel to follow the rhythm of his song when he equally referred to the exhibits as connoted by the defence. One thing is sure and that is the fact that G.F. Kolawole Esq who wrote the final written address for the defendants is referring to the circular for the prohibition of tramadol and the import prohibition list which in this case are exhibits A4 and A6 respectively. Now, the notorious position of the law is that service of notice to produce entitles a party who gave the notice to adduce secondary evidence of the documents in question. See Section 91 of Evidence Act 2011 and cases of Eweje v. O.M.Oil Ind. Ltd [2021]4 NWLR (Pt. 1765) 117 SC, Kwara State Teaching Service Comm. V. G.T.B Plc [2021] 9 NWLR (Pt. 1782) 530 CA, Nweke v. State [2017] 15 NWLR (Pt. 1587) 120 SC. It is equally noteworthy that the Claimant attached to the import prohibition list an affidavit in compliance with Section 84(4) of the Evidence Act. The argument of the defendants that the Claimant ought to have subpoenaed a witness of the defendant to tender it is misconceived. The essence of the issuance of the notice to produce is to ensure that either an officer of the defendants would produce the documents personally in Court or hand them over to their counsel to give the Claimant as requested, but the defendants failed/refused to produce these documents, which means they have something to hide, the covered face of justice, does not foreclose the inner eyes of justice from seeing and according justice to all parties. The main essence of giving notice to produce a public document to the Public Officer or Office concerned is to ensure authenticity of the document. The defendants in this case are not doubting the authenticity of the documents but their grouse is the manner in which the documents were tendered by the Claimant and that is what the law, i.e. the Evidence Act has taking care of, by accepting a copy tendered by the claimant upon the failure of the defendants to produce the original copies. That requirement of law has been fulfilled by the Claimant when it tendered copies of the two documents he has in his custody and stated in the attached affidavit of compliance how he got them. Olorunmola of counsel for the defendants equally objected to the admissibility of the acknowledged copy of the letter of dismissal tendered by the Claimant and admitted as Exhibit A8, his contention is that the document ought to have been in custody of the 1st defendant and being a Public document the Claimant ought to have certified it. The response on Claimant under cross examination respecting this document was that he acknowledged the copy given to him and he photocopied it. I have carefully perused the original copy of the letter of dismissal id est Exhibit A5 and compared same with the acknowledged copy Exhibit A8, I find both to be one and the same in content and in all ramification. They are both dated 7th October, both backdated the Claimant’s dismissal to be effective from 14th September, 2021 and both signed by one and the same person L.E. Oyama. It is thus obvious that the letters are one and the same and both emanated from the same source. There is therefore, no doubt as to its authenticity. The law is that relevancy is a precursor of admissibility. The letter of dismissal is relevant to the fact in issue, the crux of Claimant’s suit hinges on his dismissal that makes the dismissal letter a very relevant document. The defendants are not denying that it dismissed the Claimant. I also place reliance on Section 12(2) (b) of the National Industrial Act 2006 which allows me to depart from the strict compliance with the Evidence Act in the interest of justice and hold that the documents are relevant to the justice of this case and thus admissible. It is in the light of the above stated supra that I discountenance the objection to the admissibility of the documents for being unmeritorious. Consequently, Exhibits A4, A6 and A8 already admitted stand admitted and forms part of the record of this Court.

 

23. Next is issue two framed, the claimant’s case is that he was in the employ of the defendants until he was alleged to have improperly examined two containers suspected to contain concealed banned substance (tramadol) which according to him were not banned substance as at the time he was alleged to have committed the offence. That tramadol was not on import prohibition list or banned items in Nigeria until sometime in 2019 when the 2nd defendant was served with a Federal Government circular setting some control in clearing tramadol in to Nigeria not banning it in totality which is two years after the incidence he was queried and suspended occurred and that because of emergence of the circular, the 1st defendant amended the allegation against him from misconduct to serious misconduct which attracts dismissal as punishment and served him another query termed amended query and dismissed him. The defendants on the other hand admitted that the Claimant was in their employment but however contended that claimant should not have passed pharmaceutical product. They equally stated that Claimant was issued query and suspended to ensure that he does not have access to tamper with documentary evidence to be presented in Court/administrative tribunal and that the Claimant was given opportunity to confirm and defend the allegation leveled against him by his testimony wherein he admitted being examiner and signed. The defendants further posited that the Claimant was negligent in passing the containers when NAFDAC was on strike and that he did not give due diligence expected of him in examining the content of the containers and that he admitted before the committee that he erred in carrying his duty.

 

 

24. It is not in contention that Claimant’s employment is one laced with statutory flavour. This is an employment regulated by the provisions of statute or regulation made thereunder. The employer and employee are also bound by the terms and conditions stipulated in the provisions of the law or statute that govern and regulate the employment. A breach, violation or noncompliance with the provisions by any of them would be unlawful because it is against the law or statute that governs and regulate the employment. A breach of any of the provision of the law that regulates the employment would be declared null, void and of no effect. See the cases of NEPA v. Adesaaji [2002] 17 NWLR (PT. 797) 578CA; Olaniyan v. Lagos University [1985] 2NWLR (Pt. 9)599SC; Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 1934) 162, UNTHMB v. Nnoli [1994] 8 NWLR (Pt. 363), 176. In this instant case, it is noteworthy to say that the defendants are public officers established by an Act of the National Assembly, also a cursory look at the documents before this Court reveals clearly without any shadow of doubt vide exhibits A (letter of appointment, paragraph 2 thereof );  Exhibit A2 (Query) and exhibit A3/B10 (letter of suspension from service) that the terms and conditions of employment regulating the relationship between the parties is the Public Service Rules (hereinafter referred to as PSR) and other regulations of the Board, though none was tendered by any of the parties but the Court takes judicial notice of the PSR, which clearly is the document the  defendants used in the process leading to his dismissal.

 

25. Claimant vide reliefs ‘a’ and ‘c’ is seeking the Court to declare that his purported suspension vide letter dated 8th day of March 2018 contravenes Constitution of the Federal Republic of Nigeria, Customs and Exercise Management Act. The African Charter on Human and Peoples Right and Labour Conventions and all known principles of natural justice Equity and good conscience thus it should be declared null void and of no effect and set aside. The PSR did infact, provides for such a situation where a parastatal or government agency as in this instance has no internal regulations or rules, the PSR applies. Specifically, Chapter 16 Rule 160103 of the PSR provides thus; “Parastatals are to retain and improve existing rules, procedures and practices in their establishments and ensure that there are no deviation from the general principles contained in the Public Service Rules. However, in the absence of internal provisions the Public Service Rules shall apply” (Emphasis mine)

 

26. It is apparent from the above captured provision of the PSR, that the case of the Claimant may be determined pursuant to the provision of the PSR respecting his dismissal. Specifically Rule 160502 of the PSR provides that the provisions of Sections 2 to 6 in chapter 3 of the Rules shall guide all parastatals including the defendants in addressing disciplinary matters. See FMC, Ido Ekiti v. Alabi [2012] 2 NWLR (PT. 1285) 411 CA. The provision of the PSR is given a Constitutional flavor having derived its authority from the Constitution. It is thus said to be a bye law/subsidiary legislation to the Constitution that has to be strictly construed and complied with. This is the position of the Court in the case of Comptroller General of Customs V Gusau [2017] LPELR 42081 (SC). The Court went on to hold that the PSR has been made with the main object and intention of protecting officers particularly those holding pensionable employment in the Public Service of the Federation. The duty imposed on this Court at this stage is to interpret the relevant provision of the PSR to give effect to its intention respecting the procedure for dismissal of an Officer. Having held supra that PSR is the applicable terms and condition guiding the employment relationship of the parties. It is pertinent to consider whether disciplinary measures meted against the claimant was in line with the provisions of the PSR. By the provision of Rules 030302 of PSR A Superior Officer has power to discipline an erring officer by first issuing query where he becomes dissatisfied with the behavior in writing giving him/her to reply within a specified period to exculpate himself from disciplinary action, where such an officer exculpated himself he shall be informed of no further necessary action but where he failed and it finds that he deserves some punishment Rule 030304 would be applicable. Which is where a tribunal of inquiry makes recommendations of the disciplinary nature of an officer the Federal Civil Service commission or the 1st defendant saddled with that responsibility, shall not act on it until it has called upon the affected officer to reply to the allegations levelled against him/her, if the officer refuses to or neglects to reply the Federal Civil Service Commission shall proceed to accept and enforce the recommendations of the tribunal. Rule 030304 (d) went further to provide that the officer may be suspended. The law is that employer has the power to investigate any allegation of impropriety or misconduct leveled against his employee this may lead to suspension pending investigation. In the case of Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142 at 144, Uwaifo, J.S.C. in his contribution agreed with the lead judgment delivered by Belgore, J.S.C. and stated thus: "The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower Court has decided that such a scenario is not appropriate for asserting breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights". It is without doubt that an employer has the unfettered right to discipline its employee which action includes suspension. See the case of Union Bank v. Salaudeen [2017] LPELR-43415(CA) 16-18, Para D and Maiphen v. UniJos Consultancy Ltd [2013] LPELR-21904(CA) 33-34, Para G; Longe v. First Bank.[2010] 6 NWLR (PT. 1189)1 SC. `Suspension by Longe’s case supra is a temporary privation of or deprivation, cessation or stoppage from the privileges and rights of a person. However, can the claimant’s suspension continue in perpetuity or differently put, indefinitely? It is trite that suspension does not entail demolition of the rights of the employee. See the case of Foluso v. Enterprise Bank Ltd [2019] LPELR-48030(CA) and Bamisile v. NJC & Ors [2012] LPELR-8381(CA) 55-57, Para E. It is only a suspension from the performance of his duties. Claimant in this case was suspended on the 8th of March, 2018 for an alleged act of misconduct, he was earlier on the 7th of March, 2018 given a query and was given 48 hours to answer the query, which means his suspension precedes the time afforded him to answer to the query. He was subsequently given another query on the 14th May 2020 about 2 years two months from the date he was suspended and issued the first query. It is clear from the above provisions of PSR that a query may be issued to the Claimant by the Senior officer stating the alleged offence committed by an erring officer, however, it is so unlawful for an employer under statute to stretch the disciplinary procedure of any erring Officer as in this instant for more than 60 days, to do otherwise contravenes the provisions of Rule 030307 (xiii) of the PSR. The Claimant in this case was suspended from 8th March, 2018 till his dismissal October, 2021, which is 3 years and 7 months. This is clearly in flagrant breach of the condition of his service. I say so in view of the fact that the disciplinary procedure extended the period allowed by law, aside this, the queries issued to the Claimant was alleging the same offence of improperly examining two containers but was queried under different rules, id est Rule 030301 (h) and the second query dated 14th May, 2020 was alleged of the same offence but under Rule 030402 and 030401. The first query alleged that his act of improper examination of the two containers was a misconduct, while the second query which also alleged that he improperly examined two containers is an act of serious misconduct. It seems so clear as crystal that the defendants are confused as to the offence the Claimant committed, hence in a breath they alleged that his act was a misconduct and, in another breath, he was alleged to have committed a serious misconduct. Parties are not allowed to speak from the two sides of their mouth, this is because a spring cannot produce two types of water at the same time. Both allegations carry different punishment by the PSR, Misconduct carries a punishment of termination or Retirement while serious misconduct carries a punishment of dismissal. From the foregoing, it has become plain that the defendants were confused. It is in the light of the foregoing that I find that the Claimant’s suspension for 3 years 7 months is unlawful and in breach of his condition of service, it is thus declared null, void and thus set aside. Accordingly, relief ‘a’ and ‘c’ succeed.  

 

27. Claimant by his reliefs ‘b’ and ‘d’ wants the Court to declare his dismissal vide a letter dated 7th October 2021 unlawful, to declare it null, void and of no effect. The Claimant by paragraphs 22, 23, 24 and 25 of his amended statement of facts averred that as at October/November 2017 when he was alleged to have committed an offence of improper examination of two containers tramadol was never in the import prohibited list or banned items in any Nigerian Government circular until 2019 when some control in clearing was introduced not banning in totality leading to the amendment of query earlier issued to him and subsequently issued a letter of dismissal. Defendants in response vide paragraphs 15 and 16 of their joint amended statement of defence posited that claimant was negligent in passing the containers and that he failed to exercise due diligence expected of him in examining the containers. Rule 030402 (w) of PSR which the defendants alleged in their query letter issued to the claimant indicating breach of conditions of service went further to provide vide Rule 030403 of PSR the disciplinary procedure shall be in accordance with Rules 030302 to 030306. Rules 030302 provides that when a Superior Officer is dissatisfied with the behavior of any Officer subordinate to him/her, it shall be his/her duty to inform the Officer in writing and call upon him to make his representation within a specified period of time to exculpate himself/herself. After considering the written representation the Superior Officer shall decide if the officer exculpate himself/herself he/she shall be so informed in writing but where he/she fails to exculpate himself,  but it is considered he/she shall not be punish in which case the appropriate formal letter of advice shall be issued to him/her and receipt of same be acknowledged, if he/she failed to exculpate him/herself and deserve to be punished, Rule 030304 shall apply that is it shall be the duty of the Superior Officer to report any case of misconduct that comes to his/her notice to a Officer Superior to the officer involved then the Superior Officer shall in turn report the Officer to the Permanent Secretary/Head of Ministerial office without delay who shall take action in accordance with Rule 030307 as appropriate. Rule 030306 (i) provides that the Officer shall be notified in writing of the grounds of the proposed discipline, the query should be precise and to the point stating the circumstance of the offence, the rule and regulation breached and likely penalty. In serious cases which is likely to result in dismissal the Officer shall be given access to any documents that would be used in the case and asked to state his/her defence specifying any grounds upon which he/she relies to exculpate himself/herself. If the Officer submits his/her representation and Federal Civil Service Commission or in this case the 1st defendant is not satisfied that he/she has exculpate himself/herself and considers that the Officer be dismissed it shall take such action accordingly, however if it decides that the Officer does not deserve to be dismissed but some other punishment it shall impose on the officer such punishment as appropriate, it went further to state vide sub rule (xiii) that all disciplinary procedure commence and be complete within the period of 60 days as I have stated supra, except where it involves criminal cases. The trite position of the law is that an employer must follow strictly the provisions of the PSR before it could dismiss an erring employee. I have indepthly, considered the provisions of the PSR captured supra vis a vis the procedure adopted by the defendants herein for dismissing the Claimant on the ground of serious misconduct and the circumstances of this case, it discloses that the process followed by the defendants in dismissing the Claimant is fundamentally fraught with errors. Let me explain why? First, the Claimant was given two different queries in a space of 3 years 7 months as reasoned earlier in this judgment, secondly, as rightly averred by the Claimant the offence for which he was alleged to have committed was non-existent at the time he was alleged to have committed the alleged infraction. This is in view of the letter dated 3rd February, 2020 Exhibit A4 written by the 2nd defendant referencing a letter written by NAFDAC dated 17th December, 2019, while the Claimant was queried in March, 2018 a year before the alleged circular banning tramadol 120mg, 220mg and 250mg. Thus, allowing the use and importation of 50mg and 100mg respectively. The law is that offences are not given retrospective effect. In other words, the alleged infraction must be an offence or misconduct as at the time the alleged offence was committed. It is trite that law cannot apply retrospectively except it is so made by clear and express terms. See the case of Gusau v. APC (2019) 7 NWLR (Pt.1670) 183 SC. Thirdly, the Claimant as averred was not given fair hearing. Exhibits B3 and B4 are what is titled interim report dated 20th February, 2018. Which preceded the date the Claimant was queried. In the report the Claimant and others were alleged to have appeared before an investigating panel and admitted that he was the examiner of the containers and that he stated that he only saw Diclofenac and not tramadol and that he cannot recognize tramadol even if he sees it. There is nothing in the report to evince that the type of tramadol found in the two containers examined by the Claimant are the specifically prohibited ones. i.e. 120mg, 220mg and 250mg. The purported report did not state the names of those who investigated the Claimant, their rank and positions as required by the PSR. It was only signed by one Tanko S.M, DC. Obviously, Tanko alone cannot investigate the alleged infraction against the Claimant. DW admitted on record that he was a member of the panel that interrogated Claimant and that he was given another query after 4 years of the first query. There is nothing before the Court to also evince that the defendants had followed the disciplinary procedure stipulated in the PSR. The step-by-step procedure in the PSR is not for a window dressing but is to ensure that the audi alterem partem rule is complied with. I find it apparent that the defendants were in a hurry to dismiss the Claimant from its employ, hence they blatantly, failed or refused to comply with the provisions of the PSR that regulates his employment. It is in the light of the foregoing coupled with the backdating of the dismissal of the Claimant to 14th September, 2021, that I find that Claimant has succeeded in proven that his dismissal is unlawful, it is consequently, declared null, void and of no effect, and thus set aside. According, I resolved Claimant’s relief ‘b’ and ‘d’ in his favour.

 

28. Respecting reliefs ‘e’ and ‘f’ taking together, Claimant is seeking an order of this Court compelling the defendants to reinstate him with all rights and all his entitlements, privileges and pre requisites attendant to his status from the date of suspension. Claimant vide his Amended Statement of Facts stated that he was promoted to Assistant Superintendent of customs vide a letter dated 7th April 2017 which was admitted by the defendants vide paragraph 4 of their amended statement of defence. It is trite that in contracts of employment with statutory flavour like in the instant case, where dismissal or termination is found to be unlawful and nullified, the Court may order specific performance of the contract and order for reinstatement. See the case of Oforishe v. NGC Ltd [2018]2 NWLR (Pt 1602). It is equally well established, that upon reinstatement, the reinstated officer is entitled to be paid all his arrears of salaries and emoluments including fringe benefits from the date of dismissal up to the time of reinstatement and thereafter as and when due and payable. See the case of Ekeagwu v. Nigerian Army [2010]16 NWLR (Pt 1220)419@429-430, Paras F-A. In such situations, the employee does not need to prove any special circumstances to entitle him to the consequential relief of reinstatement and payment of salaries during the period in which the employment was unlawfully determined. See the case of Omidiora v. FCSC [2007]14 NWLR (Pt 1053)17, Para E-A. Thus, the said dismissed employee or whose employment is terminated must automatically be reinstated as if he has never left his employment. See the case of Tolani v. Kwara State Judicial Service Comm and others [2019] 7 NWLR (Pt. 1671)382 SC. I find from all stated supra that the Claimant is entitled to be reinstated back to the employment of the 2nd defendant, and all his salary arrears and allowances due to him be paid from the stoppage of his salary when he was suspended on 8th March, 2018 till he is reinstated and continue to pay his salary as an employee of the 2nd defendant. I so hold.

 

29. Regarding relief ‘g’ claimant is asking this Court to mandate the defendants to pay him a general damage of One Hundred Million (100,000,000.00) for delay, embarrassment and pecuniary loss suffered as a result of their actions. Having declared the acts of the defendants a nullity, ordered for reinstatement of the Claimant and payment of all his salaries and other entitlements, that in itself qualifies as damages, thus granting relief ‘g’ will amount to double compensation, which is not allowed in law. It in consequence that I refuse relief ‘g’ and discountenance it.

 

30. Claimant vide relief ‘h’ is asking for cost of action. A successful party in an action unless he misconducts himself, is entitled to cost as of right. This position of the law is premised on the principle that cost follows event, and that a successful party in a litigation is entitled to be indemnified for all the reasonable expenses incurred in the prosecution of the matter up to judgment. See the case of Ezennaka v. C.O.P., Cross River State [2022]18 NWLR (Pt. 1862) 369 @ 420 Paras. D-F SC, Coppa and Dalberto (Nig)Plc v. NDIC [2019] 9 NWLR (Pt. 1780)1 @14 Paras G-H. It is equally trite that the award or refusal of costs is at the discretion of Court provided it is exercised judicially and judiciously. See the case of Yakubu v. Min Housing & Environment, Bauchi State [2021]12 NWLR (Pt. 1791) 465 CA. This Court by the provisions of Order 55 empowers this Court to grant costs at its own discretion. In the instant suit, there is nothing on record showing that the claimant has misconducted himself, there is equally no any circumstance shown disentitling him from cost. It is in line with the above stated supra that I find that he is entitled to a cost. Accordingly, I award the sum of N250,000.00 to the Claimant as cost of action.

 

31. This judgment is to be complied with within 30 days from today.

 

32. Judgment is accordingly entered.

 

Hon. Justice Oyebiola Oyewumi

Presiding Judge.