IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP, HON.  JUSTICE J.T AGBADU FISHIM, JUDGE

DATE: 6th MAY, 2025                                                               

SUIT NO: NICN/YL/01/2024

BETWEEN:

AHMED A.T MOHAMMED-----------------------------------------------------------CLAIMANT

AND

UPPER BENUE RIVER BASIN DEVELOPMENT AUTHORITY.…………………DEFENDANT

 

REPRESENTATIONS:

M.O. Nwoye for the Claimant. With him is Kingsley Gabriel

Bello Bakari, for the Defendant. With him is Abubakar Suleman and A.I. Yahaya

 

JUDGMENT

INTRODUCTION AND CLAIM

1.      The Claimant is by a Complaint and Statement of Facts dated and filed the 18th of January, 2024 claiming against the Defendant the following reliefs:

a.      AN ORDER OF DECLARATION that the indefinite suspension of the Claimant without proper investigation from all the relevant agencies is null and void.

b.      AN ORDER OF DECLARATION that the suspension of the Claimant without consideration of his health challenge breaches his right to fairness and therefore ultra vires the powers of the Defendant.

c.      AN ORDER OF DECLARATION that the Claimant who is hospitalized in Modibbo Adama Teaching Hospital cannot be said to abscond from duty.

d.      AN ORDER OF DECLARATION that the indefinite suspension of the Claimant is illegal, oppressive thus null and void.

e.      AN ORDER directing the Defendant to reinstate the Claimant with his full status forthwith.

f.       AN ORDER directing the Defendant to pay to the Claimant forthwith, all such salaries, allowances and other entitlements that fell due and such incremental rates commensurate to his rank and promotions as at the January, 2023.

g.      N2,000,000.00 (Two Million Naira) as general damages against the Defendant.

h.      AN ORDER directing the Defendant to pay the Claimant costs and legal fees in the sum of One Million Five Hundred Thousand Naira (N1,500,000.00) or any such sum as might have accrued in the course of the commencement of this suit until judgment is delivered.

2.      The originating process is accompanied by the Claimant’s Witness Statement on Oath sworn on the 18th of January, 2024, the List of Documents, and frontloaded copies of documentary exhibits.

3.      On the 27th of June, 2024, the Claimant, opened his case and testified as CW1, he adopted his Witness Statement on Oath of 18th January, 2024 as his evidence-in-chief in this case and tendered in evidence Exhibits C1 to C12. Exhibit D1 was tendered in the course of cross examination of CW1 by the Defendant’s Counsel on the 27th of September, 2024. The Claimant closed his case and matter was adjourned for defence.

4.      Despite more than adequate opportunities and adjournments availed the Defendant to enter a proper defence to this Suit, the Defendant failed or neglected to so do, thus leading to the foreclosure of defence and this Honourable Court directed parties to file their respective Final Written Address.

5.      In compliance, the Claimant on the 17th of December, 2024 filed his Final Written Address, while the Defendant on the 6th of January, 2025 filed her Final Written Address dated 19th of December, 2024. The Claimant also on the 21st of January, 2025 filed a Reply on Points of Law dated same date.

6.      Surprisingly, on the very date of 6th of February, 2025 when the matter came up for adoption of final addresses of parties, the Defendant filed a Motion on Notice dated 3rd of January, 2025 seeking a vacation of the order of foreclosure of defence and an order giving the Defendant opportunity to defend the suit on the merit.

7.      Having noted that the Defendant has filed her Final Written Address since 6th of January, 2025 and obviously did not put in any proper and regular Statement of defence before this Court, more so that this application was prepared and dated 3rd of January, 2025, the Defendant chose to wait till the very date of 6th of February, 2025 slated for adoption of final address to file same, with a view to stultify, frustrate and stall the matter from going on, despite the fact of her failure to file a regular and proper defence to the Suit, this Honourable Court saw no merit in the application other than Defendant’s gimmicks and ploy and thus the Defendant’s application was declined and the respective Learned Counsel of M. O. Nwoye Esq. for the Claimant and Bello Bakari Esq. for the Defendant proceeded to adopt their respective final addresses accordingly.

8.      Thus, the Defendant has no pleading and evidence in defence of this case, though the Defendant filed and adopted Final Written Address.

CASE OF THE CLAIMANT

9.      By the uncontroverted averments of the Claimant’s Statement of Facts and unchallenged evidence led by CW1 in proof thereof, the case of the Claimant is thus:

10. The Defendant is an agency of the Federal Government with its headquarters in Yola within the jurisdiction of this Court. The Claimant was employed by the Defendant via a letter of offer of permanent and pensionable appointment dated 13th of May, 2011 as A.E.O (Admin) on Grade Level 06/2. He reported to work as demanded by the Defendant and was duly posted to where he resumed duty. His appointment was confirmed via a letter of confirmation of appointment dated 24th of July, 2013. Since he was employed under the Defendant, he has been diligent in the discharge of his duties and has never been found wanting in any way. He has been hardworking staff and the Defendant had always shown its happiness for the way the Claimant carried out his duties as a staff.

11. However, the Claimant in 2014 developed severe pains in his left hip joint which required surgery. This prompted the Claimant to appeal to the Defendant for financial assistance to enable him carry out the surgery in a private Hospital, Accord Surgery Orthopedic Hospital Kano. He presented the letter dated 5th of August, 2015. The Defendant through her former Managing Director rendered financial assistance to the Claimant. After the surgery, the Claimant was healthy and continued to carry out his duties in the Defendant service. As a result of his hard work, the Claimant was promoted to Grade Level 7/01 via a Notification of Promotion dated 17th of July, 2014.

12. However, in 2015, the Claimant started having severe pains on his left hip joint again and because there was no fund to carry out the surgery he continued to manage the situation as a result of which he was placed under heavy medical attention. In January, 2022, he was posted from the Defendant’s headquarters to Lower Taraba Irrigation Project (Gassol) where he was mandated to report to work not later than 4th of February, 2022. The Claimant wrote the Defendant in February, 2022 pleading with the Defendant to consider his health situation and allow him to remain in the Defendant’s Headquarters but the Defendant refused to consider his appeal and mandated the Claimant to report without further complain.

13. In spite of his health challenge, he reported as directed by the Defendant to the new Station which is Lower Taraba Irrigation Project (Gassol). Shortly after he reported, he took ill and as a result he went to Modibbo Adama University Teaching Hospital, Yola where he was attended to medically. He collapsed and went unconscious when the medical laboratory tests were going on. When he was resuscitated, he wanted to leave the Hospital but the medical personnel insisted that he was not fit to go but because of the fear of what the Defendant and his supervisors could say or do, the Hospital wrote a letter of “To Whom It May Concern” dated 18th of January, 2023 which was served on the Defendant as well as his other supervising heads.

14.  While still recovering and considering managing himself to resume work, he received a Query dated 13th of February, 2023 signed by his Project Manager of Lower Taraba Irrigation Project (Gassol) requesting him to within 24 hours explain in writing why disciplinary action should not be taken against him for being absent from duty. The Claimant in spite of his ailment managed and responded to the letter via a Reply dated 14th of February, 2023 stating his health challenge which has affected his two legs making it impossible for him to walk and which challenge he had brought to the knowledge of the Defendant. The severity of the ailment was much that the Claimant was forced to return to the Modibbo Adama University Teaching Hospital Yola where some further clinical examinations and test were carried out.

15. The Hospital wrote a letter dated 27th of February, 2023 to the Managing Director of the Defendant on the Claimant’s health situation and the required solution which require the Claimant to undergo a surgery on both left and right hip joints at the cost of N3,500,000 each.

16. In spite of all these evidence of the Claimant’s serious health challenge, the Defendant set up a Committee before which the Claimant appeared and proved that he had a serious health challenge. Yet, the Defendant, based on the findings and recommendation of the Committee, suspended the Claimant indefinitely till further directive from the Ministry, via letter dated 27th of October, 2023.

17. Claimant testified that aside the above, the Defendant had never found him wanting and was always happy with his hardwork and dedication and the Defendant considered him whenever he was due for promotion, hence he was promoted via Notice of Promotion dated 26th September, 2017 to Grade Level 8/01 and further promoted in 2021 via Notification of Promotion dated 14th February, 2021 to Grade Level 9/01.

18. Claimant was due for promotion in January, 2023 but was not promoted as the Defendant deliberately refused to consider him and shifted the promotion exercise to December, 2023 before which date the Claimant was given the indefinite suspension.

19. Claimant did all he could to make the Defendant investigate his health issue since the Defendant were not convinced with his physical appearance which had shown some disability but the Defendant refused to investigate or subject the Claimant’s health challenge to investigation. He requested the Defendant to go to the Hospital that attended to him for investigation or findings but the Defendant refused to go on the ground that they have no business with the Hospital.

20. Claimant testified that up till now the surgery has not been carried out and he has been relying on the prescribed drugs to manage his health as that is just to calm the pains but not cure, as the cure is the surgery.

21. Claimant maintained that his suspension was done without fairness and proper investigation to all the relevant areas that needed to be investigated. That the indefinite suspension has occasioned untold hardship on him as he could not afford even the recommended drugs aimed at managing his situation pending when he will be able to raise the funds for the surgery. That if not for his health which has incapacitated him, he has been hardworking and dedicated staff who has never failed or absented himself from his duty post at any given time or whenever the duty calls.

22. Claimant then briefed his lawyer who wrote a letter to the Defendant as well as the Ministry of Water Resources, yet the Defendant could not consider the Claimant’s plight as well as his health challenges. The Defendant refused to pay the Claimant’s salaries from the month of November, 2023 till date. This has seriously affected the Claimant as he could barely walk and his diabetic condition is fluctuating and needed to be stabilized in order to live but lack of fund is an impediment to it.

23. That he has been exposed to the payment of legal fees to his lawyers in the prosecution of his interest because of the persistent refusal of the Defendant to act in fairness and justice. The Claimant prayed this Honourable Court to grant all his reliefs set out in his Claim before this Court.

24.  CW1 tendered the following documents which were admitted in evidence and marked thus:

Exhibit C1 – Claimant’s Original Letter of Offer of Permanent and Pensionable Appointment dated 13th May, 2011;

Exhibit C2 – Claimant’s original Confirmation of Appointment Letter dated 24th July, 2013;

Exhibit C3 – Original Medical Certificate titled “To Whom It May Concern” from Accord Surgery Orthopedic Hospital, Kano dated 5th August, 2015;

Exhibit C4 – Claimant’s original Notification of Promotion Letter dated 17th of July, 2014;

Exhibit C5 – Original Medical Certificate titled, “To Whom It May Concern” from Modibbo Adama Teaching Hospital, Yola dated 18th January, 2023;

Exhibit C6 – Original Query dated 13th February, 2023 issued by the Defendant’s Project Manager to the Claimant;

Exhibit C7 – Claimant’s Reply titled “Re: Query” and dated 14th February, 2023;

Exhibit C8 – Modibbo Adama University Teaching Hospital, Yola’s Medical Report titled “Re: Abdullahi Ahmed, 37 Years, Male, Hospital No. 011878” dated 27th February, 2023 written to the Managing Director of the Defendant;

Exhibit C9 – Original Letter of Suspension dated 27th October, 2023 issued to the Claimant;

Exhibit C10 – Claimant’s original Notification of Promotion dated 26th September, 2017;

Exhibit C11 – Claimant’s original Notification of Promotion dated 4th February, 2021; and  

Exhibit C12 – Claimant’s Original Posting Order dated 31st January, 2022.

25. In his cross examination, CW1 answered thus:

“My date of birth is 8th of February, 1986. As at January, 2023, I was 36 years. In August, 2015, I was 29 years. My name is Ahmed A. T. Mohammed. Yes, I was posted on 31st of January, 2023 to Taraba Lower Irrigation Project at Gassol. I see Exhibit C5 which I state under paragraphs 16 – 18 of my Statement on Oath. It is the Letter I referred thereto. Yes, I am a Senior Staff. Yes, my Salaries and emoluments come from the Defendant Headquarters. It is the Defendant that is responsible for my Salaries. I do not know whether Accord Surgery Orthopedics is one of the Hospitals retained by the Defendant. The Letter was addressed “To Whom It May Concern”. That is what they normally do. I have seen Exhibit C8 is a Letter from Modibbo Adama Teaching Hospital specifically addressed to the Defendant. This is Exhibit C7 is a Letter written by me. There is no sign that this Letter was received by the Defendant. Yes, there is evidence in the Defendant’s file that I reported to Gassol where I was posted to. Yes, I wrote a Complaint when I was issued a Suspension Letter. I wrote to the Defendant. Yes, this is the Letter which I wrote.”

26. The Complaint was tendered and admitted under protest and marked Exhibit D1 dated 8th November, 2023– written by Claimant’s Solicitors Samuel G. Udoh Chambers and titled, “Complaint about the Unlawful, Unfair, Mischievous and Unjustifiable Indefinite Suspension of Ahmed A. T. Mohammed by Engr. Abubakar H. Muazu, Managing Director of Upper Benue River Basin Development Authority and a Call for Review of the Suspension.” Addressed to the Hon. Minister, Federal Ministry of Water Resources and Sanitation, Abuja through the Permanent Secretary, FMWRS, Abuja.

27.  CW1 further answered thus:

“No evidence of payment to my lawyer but I paid my lawyer to come to Court for me. The witness statement is in the name of Mr. Nicholas Dopsal. It is not me that deposed it. Yes, I paid my lawyer N1,500,000.00 (One Million, Five Hundred Thousand Naira).”

28. It is upon the above oral and documentary evidence led on the pleadings that the Claimant has urged this Honourable Court to enter judgment in his favour and the Defendant is vehemently asking otherwise.

CLAIMANT’S FINAL WRITTEN ADDRESS

29. In the adopted Final Written Address, Claimant distilled two issues for determination thus:

1.      Whether the indefinite suspension of the Claimant contrary to the Federal Government Public Service Rules governing his condition of service is valid?

2.      Whether by the Federal Government Public Service Rules applicable to the parties in this Suit, the Claimant’s claim, his evidence and exhibits tendered, the Claimant has proved his case to be entitled to the judgment of this Hon. Court?

30. On Issue One, Claimant Learned Counsel submitted that the indefinite suspension of the Claimant by the Defendant was contrary to the Public Service Rules which governs the Claimant’s condition of service and thus invalid, unlawful, illegal, malicious and unconstitutional. Learned Counsel referred to the provision of the Public Service Rules PSR100406 under which the indefinite suspension was effected in Exhibit C9. Learned Counsel argued that the Defendant could not discredit or dislodge the evidence of the serious ill health challenge to the extent of collapsing while the medical tests were ongoing and the fact that the Claimant was placed under close monitoring and medication. Learned Counsel argued that this is a ground under which the Claimant ought to be excused from duty.

31. Learned Counsel relied on Bashir Alade Shitta-Bey v The Federal Public Service Commission (1981) LPELR – 3056 (SC) as well as Section 160 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to the effect that the Federal Government Public Service Rules 2021 has a constitutional force and must be adhered to by every employer governed by the Public Service Rules.

32. Claimant Learned Counsel argued that while the provision of PSR100406 relied on for the suspension states that an officer shall be suspended only if a prima facie case has been established against the officer and it is considered necessary in the interest of public that the officer should forthwith be prohibited from carrying out his duties, whereas the Exhibit C9 did not state that it is considered in the public interest that the Claimant be prohibited from carrying out his duties and thus the suspension is contrary to the above provision and therefore null and void. Learned Counsel referred to Federal Polytechnic Idah & Anor v Egbeke (2019) LPELR – 48727 (CA). Learned Counsel posited that it is a condition precedent for that opinion to be arrived at first and foremost and for it to be expressly stated in the letter of suspension for the suspension to be valid.

33. Learned Counsel also contended that the indefinite suspension violated the same PSR100406 in that it was unfair and not made pending investigation into the misconduct, as expressly required by the provision. Learned Counsel argued that the provision does not empower the Defendant to indefinitely suspend the Claimant and does not even recognize indefinite suspension. Learned Counsel pointed out that Exhibit C9 is indefinite and not pending investigation or any disciplinary action, as required by the PSR. Learned Counsel argued that the PSR does not give the Defendant any discretion outside the above provision to indefinitely suspend the Claimant until further directive from the Ministry as there is no room in the PSR for any Ministry to give directive as such but all what is required is to suspend the staff pending investigation into the misconduct and the Defendant cannot import anything outside this provision.

34. Learned Counsel pointed out that directive from Ministry and Investigation are two different things; that directive is not investigation. Learned Counsel argued that investigation as envisaged in PSR100406 is upon establishing a prima facie case pending further investigation. Learned Counsel reasoned that Exhibit C9 clearly showed that the Defendant had concluded that there is no need for further investigation. Learned Counsel argued that this was contrary to PSR100406 and the principle of natural justice.

35. On Issue Two, Claimant’s Learned Counsel submitted that the Claimant has proved his case to be entitled to the judgment of this Court. Learned Counsel argued that evidence proved ill health as the basis of the Claimant’s being absent from duty before the Claimant was queried and by Exhibit C7 in response to the Query Exhibit C6, the Defendant was further informed of the Claimant’s ill health and the medical treatment the Claimant was undergoing. Learned Counsel argued that the provision of PSR130301 recognizes as a genuine excuse for any officer who is sick to seek medical attention and notify his Ministry/Agency in writing or by any other means of communication. Learned Counsel argued that the Claimant fulfilled this condition in this case.

36. Learned Counsel referred to the CW1 testimony in paragraphs 9, 10 and 15 of the Witness Statement on Oath and also submitted that this evidence was never challenged by the Defendant in this case, and thus established that the Claimant informed the Defendant and the Defendant was aware of the Claimant’s ill health and much more, the Defendant rendered assistance to the Claimant. Learned Counsel also referred to Exhibit C5 from the Hospital to the Defendant as well as Exhibit C8.

37. Claimant Learned Counsel also contended that PSR130303 imposes a duty on any authorized healthcare provider to examine and treat any officer who presents himself for treatment and where necessary that a person will be absent from duty for a prolonged time as in this PSR130301, notify the employer of an employee of any such examination and treatment with a view to keeping his employer informed of the situation of the officer as a cover for his absence at work. Learned Counsel referred to Exhibit C5 and submitted that by this exhibit the Modibbo Adama University Teaching Hospital complied with paragraph C of the PSR130301 to justify the Claimant’s absence from duty, as it informed the Defendant as well as his supervising heads accordingly. Learned Counsel posited that this alone excused the Claimant from any disciplinary action for his absence.

38. Claimant Learned Counsel argued that the claim of the Defendant that they were not aware of the Claimant’s health condition leading to his absence cannot fly in the face of Exhibit C3 dated 5th August, 2015 which was served on the Defendant which clearly showed that the Defendant was aware and this was further given credence to by Exhibit C5 dated 18th January, 2023 and Exhibit C8 dated 27th February, 2023.

39. Claimant Learned Counsel also referred to the provision of PSR130310 which states that if an officer’s absence from duty is not explained by the officer within 24 hours, enquiry shall be made at the officer’s recorded address to ascertain the cause of absence. Learned Counsel argued that the Defendant did not comply with this requirement in this case. Learned Counsel argued that it is not enough for the Defendant to claim they were not aware but it is incumbent on the Defendant to make enquiry at the Claimant’s recorded address to ascertain the reasons for his absence, which obligation the Defendant failed to discharge in this case, despite being in receipt of Exhibit C5. The Defendant did not verify from the Hospital.

40. Claimant Learned Counsel also pointed out that the Defendant has no statement of defence and the law is trite that as such, the Defendant is deemed to have admitted the averments of the Claimant’s Statement of Facts. Reliance was placed on Oke & Ors v Aiyedun (1986) LPELR – 2427 (SC). Learned Counsel thus submitted that by virtue of Order 38 Rule 2(1) of the Rules of Court, this Honourable Court has the powers to enter judgment for the Claimant. Learned Counsel argued that the CW1 testimony of his ill health was not discredited under cross examination and this Court on the authority of State v Oladotun (2011) 10 NWLR (Pt 1256) 542 Ratio 6 can rely on it.

41. Learned Counsel also referred to the decided case of Wachukwu v Owunwanne (2011) Vol 25 WRN 1 at 9 Ratio 6 to the effect that this Court has the duty to weigh the evidence presented by parties on imaginary scale and decide on preponderance of evidence. Learned Counsel argued that the pendulum tilts in favour of the Claimant in this case and the Claimant is entitled to judgment accordingly.

DEFENDANT’S FINAL WRITTEN ADDRESS

42. Defendant’s Learned Counsel on her part submitted two issues for determination in her adopted Defendant’s Final Written Address, viz:

1.      Whether this Court can assume jurisdiction over this matter in the light of the Claimant’s deliberate refusal to exhaust the internal mechanism/condition precedent for approaching courts by an employee of the Defendant?

2.      Whether failure to abide by the Public Service Rules by the employee is not fatal to his case?

43. Defendant’s Learned Counsel objected to the assumption of jurisdiction by this Court and submitted on Issue 1 that the Claimant having not exhausted the internal mechanism which is a condition precedent before approaching the Court, this Honourable Court cannot assume jurisdiction over this case because until this condition precedent is complied with, the jurisdiction of Court is yet to be activated. Reliance was placed on Madukolu v Nkemdilim (1962) 2 SCNLR 341.

44. Learned Counsel referred to PSR030307 and PSR030308 of the Public Service Rules 2023 which are the same as PSR110101 and PSR110201 of the Public Service Rules 2021 and contended that these Rules provide for mandatory framework for addressing grievances arising from disciplinary measures including suspension under PSR100406, as it specifically provide that appeal from an aggrieved officer shall be handled and concluded within 6 months and that without prejudice to constitutional rights, officers should as much as possible exhaust all avenues provided in the Public Service Rules and circulars for redress before proceeding to Courts, and additionally to obtain permission of the Head of Service of the Federation before proceeding to Court.

45. Learned Counsel argued that in the instant case, the suspension was approved on the 27th of October, 2023 and the Claimant rushed to Court on the 18th of January, 2024 which is less than 3 months without exhausting the appeal window provided by the PSR. Learned Counsel made a synopsis on the doctrine of exhaustion of remedies and cited the judicial authorities of Oguntuwase v University of Lagos (2014) LPELR – 23273 (CA); UNILORIN v Ayodeji Abegunde (2015) LPELR – 24562 (SC); Kekong v Akwa Ibom State University (2013) LPELR – 22375; Shell Petroleum v Emehuru (2007) 5 NWLR (Pt 1027) 347; Ekeocha v Civil Service Commission, Imo State (2014) LPELR – 24118.

46. Learned Counsel argued that the Claimant’s failure to exhaust this internal dispute resolution mechanism before coming to this Court undermines the administrative process and violates the rules designed to resolve employment disputes internally. Learned Counsel opined that allowing employees to bypass these mechanisms undermines the administrative hierarchy and wastes judicial resources. She referred to PSR090201.

47. Learned Counsel listed the internal process as itemized in PSR 2023, from Rules 030401 – 030406; 030401 – Officers have the right to appeal disciplinary decisions to high authorities within the public service hierarchy. 030402 – Appeals must be lodged within a specified timeframe, usually 21 days from the date of the disciplinary decision. 030403 – Administrative reviews are conducted to ensure that proper procedures were followed. 030404 – Employees are mandated to exhaust all internal remedies before seeking judicial intervention. 030406 – The Federal Civil Service Commission is the final arbiter in unresolved disciplinary cases.

48. Learned Counsel argued that the only instances where a bypass is allowed are exceptional circumstances that can justify immediate resort to the Court which include: futility – where the administrative process is inherently biased or ineffective; breach of fundamental rights – if the suspension violates constitutional rights of fair hearing; or irreparable harm – where the Claimant faces imminent and irreparable harm that necessitates urgent judicial intervention. Learned Counsel cited and relied on Tukur v Government of Gongola State (1989) 4 NWLR (Pt 117) 517 amongst others.

49. Learned Counsel argued that the case of the Claimant did not come under any of these exceptions. Learned Counsel contended that apart from the Exhibit D1 - Complaint written to the Minister of Water Resources after the suspension, the Claimant did nothing at all, not even writing to the Defendant for the Appeal Committee of the Federal Ministry of Water Resources which handles such complaints from affiliated parastatals such as the Defendant.

50. Learned Counsel thus urged this Honourable Court to strike out this Suit for this failure of the Claimant to exhaust this appeal mechanism.

51. Learned Counsel also referred to the authorities of Governor of Kwara State v Ojibara (2006) 18 NWLR (Pt 1012) 645; Ene v Asikpo (2010) LPELR – 4074 (CA); and Longe v FBN Plc (2010) 6 NWLR (Pt 1189) 1 (SC) to the effect that it is settled that employee’s suspension does not constitute a breach of fundamental rights if carried out in accordance with laid-down procedures and does not impose irreparable harm; it is a temporary administrative measure which does not amount to denial of fair hearing, especially when the employee has an opportunity to respond or appeal; and finally it does not terminate an employee’s rights or employment but merely a temporary step to allow for investigation or disciplinary proceedings.

52. Learned Counsel referred to the dictum of the Court in Akinyanju v University of Ilorin (2005) 7 NWLR (Pt 923) 87 (SC) to the effect that it is settled law that suspension does not constitute irreparable harm because it is temporary, reversible and the employee can be reinstated with full benefits if exonerated. Learned Counsel thus urged this Honourable Court to strike out this Suit and direct the Claimant to exhaust the internal mechanism which the Claimant had even commenced via Exhibit D1.

53. On Issue 2, Defendant’s Learned Counsel argued that the failure of the Claimant to abide by the Public Service Rules is fatal to his case. Learned Counsel referred to PSR130301 which provides that an officer who is receiving medical treatment within or outside the location of his duty post shall report to his employer within 48 hours and if an officer is ill and unable to report for duty, he shall notify his Ministry/Agency in writing or by any other means of communication, any prolonged absence from duty on ground of illness should be supported with any of the following – a) excuse duty certificate, (b) light duty certificate, (c) medical certificate of treatment.

54. Learned Counsel argued that the Claimant failed to comply with the above provisions and thus this Suit is liable to be dismissed for being incompetent, asides the fact that it is premature for failure to exhaust internal dispute resolution mechanism.

CLAIMANT’S REPLY ON POINTS OF LAW

55. Replying on points of law raised by the Defendant’s Final Written Address, the Claimant’s Counsel posited on the issue of exhaustion of internal mechanism raised by the Defendant, that though issue of jurisdiction can be raised at any time, the law requires certain objections to jurisdiction with respect to condition precedent or special defence to be specifically pleaded before same can be raised, and one of such is exhaustion of internal mechanism, a condition imposed by law which is not ex facie apparent from the Complaint and must be specifically pleaded, as it is a question of fact which must be proved by evidence.

56. Learned Counsel referred to Order 30 Rules 7 and 8(1) & (2) of the Rules of Court and placed reliance on the pronouncements of the Court in Ede v Access Bank & Anor (2019) LPELR – 48479 (CA); Nonye v Anyichie & Ors (2005) LPELR – 2061 (SC).

57. Learned Counsel thus posited that the Defendant having not raised the issue of exhaustion of internal mechanism by pleading, cannot raise it at this address stage.

58. Claimant Learned Counsel also contended that even if it was taken that the Defendant properly raised the issue of exhaustion of internal mechanism, it is in evidence by Exhibit D1 that the Claimant has complied with the procedure for appeals, since by Exhibit C9 the suspension is made until further directives from the Ministry, which is the authority the Claimant then directed his appeal.

59. Learned Counsel argued that the Defendant who has gone outside the PSR to make the suspension “until further directive from the Ministry” rather than “pending investigation into the misconduct”, is estopped from denying or raising otherwise. Learned Counsel cited Section 169 of the Evidence Act, 2011 (as amended) and submitted that the Claimant has addressed his appeal, Exhibit D1, to the authority indicated in Exhibit C9, the Suspension Letter.

60. Claimant Learned Counsel also pointed out that the Claimant was not suspended pending investigation as to warrant the Claimant following the procedures of Appeals as provided by the PSR, since the Claimant was suspended pending directive from the Ministry which procedure is unknown to the PSR, and thus the Claimant cannot appeal to any authority other than the Ministry on whom the Defendant has tied the Claimant’s fate.

61. Claimant Learned Counsel also referred to PSR100307(xiii) of PSR 2021 to the effect that every disciplinary action must be concluded within 60 days except where it involves criminal cases. Learned Counsel argued that the Claimant in this case is not accused of criminal act and as such the disciplinary action must be concluded within 60 days. Learned Counsel pointed out that upon Exhibit C9, the suspension issued against the Claimant, the Claimant wrote Exhibit D1 to appeal to the Ministry from whom the directives regarding the case of absence from duty is expected but till date no response as to the Appeal and no directives have been received from the Ministry; and as such the Claimant cannot wait ad infinitum but has the right to approach this Court in that circumstance. Learned Counsel argued that the Defendant cannot accuse the Claimant of jumping the gun in this case.

62. Moreover, the Claimant Counsel contended that the Public Service Rules only places a duty on the Appeal authority to conclude every appeal within 6 months and does not place any obligation on the Claimant to wait for 6 months before instituting action, more so when that procedure is only envisaged where the suspension is made pending investigation and not as in the instant case where it is made pending directive from the Ministry, which procedure is alien to the Public Service Rules.

63. Learned Counsel also contended that even if the objection on ground of exhaustion of internal mechanism was to be considered, the case of the Claimant is an exception to it because the suspension in this case is not done in line with the law, PSR, as it was not made “pending investigation into the misconduct” as required by PSR100406. It is also indefinite suspension. Learned Counsel argued that by PSR100403, a strict compliance is required and in this instance the Defendant’s departure from the PSR rendered the action taken illegal, a breach of the Claimant’s rights and for this reason alone, the Claimant can safely on the authority of Governor of Kwara State v Ojibara (Supra) approach the Court without necessarily submitting to internal mechanism.

64. Claimant Learned Counsel also urged the Court to note that this indefinite suspension, that was not made pending disciplinary action or investigation but until further directives of the Ministry which never came, is nothing short of constructive dismissal. Learned Counsel argued that disciplinary action must be concluded within 60 days and in this case, 60 days after the Suspension, nothing was done and till date, nothing has been done. Learned Counsel argued that constructive dismissal is illegal, especially in this employment with statutory flavor, and a violation of the right of employee which amount to irreparable harm on the Claimant who is left to wallow ad infinitum. Learned Counsel argued that this also meet an exception to exhaustion of internal mechanism.

65. Thirdly, Counsel to the Claimant argued that the failure of the Defendant to consider the health status of the Claimant in disciplining the Claimant, even when the Defendant were aware of and even rendered assistance to the Claimant, amounts to bias and evidence that the Defendant was out to achieve a predetermined ill motives. Learned Counsel argued that this also satisfied an exception to exhaustion of internal mechanism.

66. Claimant Learned Counsel also pointed out that above all, all these authorities on exhaustion of internal mechanism cited and relied on by the Defendant were decisions made based on the provisions of the statutes of those institutions which employ the mandatory word, “SHALL” unlike the Public Service Rules which only employs the word, “SHOULD” which is a word of encouragement, not meant to bar the Claimant from approaching the Court.

67. Claimant Learned Counsel also urged the Court to discountenance the Defendant’s contention that the Claimant did not communicate his ill health to the Defendant. Learned Counsel referred to his argument on Issue Two

COURT’S DECISION

68.  Upon my painstaking perusal of the pleadings and the available evidence adduced before this Honourable Court and having waded through the Final Written Addresses as well as the Claimant’s Reply on Points of Law, particularly noting that not only is evidence one-sided, thus the case is not defended by the Defendant, and having noted the issues for determination donated by the respective parties, the two issues for determination which  in my view address all the issues distilled by parties and which will guide the consideration and resolution of the disputation between parties in this case are thus:

1.      Whether the Claimant’s Suit is incompetent for failure of condition precedent to exhaust internal mechanism?

2.      Whether the Claimant has proved his case as required by law to warrant entering Judgment in his favour?

69. On Issue 1, the Defendant objected to the jurisdiction of this Court on ground of failure of exhaustion of internal dispute resolution mechanism of the Defendant by the Claimant.

70. The Claimant Counsel is of the view that it is too late in the day for the Defendant who has no pleading before the Court to now raise exhaustion of internal mechanism in the Defendant’s Final Address. To do justice to the above contention, I shall without much ado referred to the position of the law enunciated by the no less Supreme Court of Nigeria in the decided case of A/G Kwara State & Anor v Adeyemo & Ors (2016) LPELR – 41147 (SC) where failure to exhaust statutory line of steps before approaching the trial Court was raised without leave of Supreme Court for the first time. The contention against the raising of the issue in that manner was also that such issue ought to have been pleaded and proved by facts at the trial Court aside the fact that it requires leave for such issue not raised at the trial court to be raise on appeal.  However, the apex Court resolved as follows:

“The issue asks the question whether the Courts below, particularly the trial Court had the jurisdictional competence to entertain the case of the 1st – 3rd claimants/respondents in the absence of compliance by them with Section 3(3) of the Chiefs (Appointment and Deposition) Law. Jurisdiction is the authority given to the Court by the Constitution, legislation to decide matters that come before it. Jurisdiction is a threshold issue. So once raised it must be resolved quickly. It is so fundamental in that if a Court hears a case in which it has no jurisdiction, no matter how well the case was conducted and decided, it would be declared a nullity…. Jurisdiction is so fundamental and so it may be raised in the trial Court or Court of Appeal or in the Supreme Court for the first time…. Jurisdiction is a question of law. There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former…. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction…. The position of the law is that where a statute gives a party a benefit he may waive it, thereby conferring jurisdiction on the Court to hear the matter. Put in another way, conditions contained in a statute for the benefit of a person or class of persons can be waived by the person/s to benefit from it…. On the other hand where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived…. I shall now address the merits of this issue. This issue on jurisdiction is a fresh issue and the appellants’ in SC.650A/2013 did not seek leave of this Court to raise it. The long settled position of the law is that a fresh issue can only be raised on appeal after leave (i.e. permission) is asked for and obtained, but there is an exception to this position of the law. Due to the fundamental nature of jurisdiction, once the issue is on jurisdiction, leave is not required before it is raised in this Court… In view of the above, the appellants in SC.650A/2013 were correct to raise the issue of jurisdiction before this Court for the first time without obtaining leave.”

71. In the light of the above, this Honourable Court is of the view that this issue of statutory condition precedent raised by the Defendant should be entertained for whatever it is worth in this case.

72. Where a party in a suit complains that there was non-compliance with provision of a statute, in this case PSR110201 of the Public Service Rules 2021, the interpretation of the provision becomes an issue and it is the duty of the Court to examine relevant evidence to see if there was compliance or non-compliance and whether the non-compliance falls under any exemptions permissible under the circumstance.

73. The said internal mechanism is the Appeal procedure prescribed in PSR110201 of Public Service Rules 2021, which provides thus:

 “(i) Appeal from an aggrieved Officer shall be handled and concluded within six months. (ii) Without prejudice to their constitutional rights, Officers should as much as possible exhaust all avenues provided in the Public Service Rules and Circulars for redress before proceeding to Courts. This is also in addition to obtaining the permission of the Head of the Civil Service of the Federation before proceeding to court.”

74. While the Defendant posited that this provision creates a mandatory legal requirement, a condition precedent, the Claimant is of the view that it is merely an encouragement and not mandatory. The clause that calls for interpretation is “Without prejudice to their constitutional rights, Officers should as much as possible exhaust all avenues…” Starting with the first phrase, “Without prejudice”, the penultimate Court in Acmel Nigeria Ltd & Anor v FBN Plc & Ors (2014) LPELR – 22444 (CA) construed the phrase to mean, “without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.”

75. The next is the modal verb, “SHOULD” which signifies advice, recommendation, probability, expectation and less strong than must/shall, depending on the context in which it is used. It is advisory or precatory, indicating a recommendation or moral obligation rather than a legal requirement. This is contrasts with “SHALL” which is mandatory or obligatory in legal contexts. See Black’s Law Dictionary.

76. Then what does the phrase “as much as possible” mean? It means to the highest degree or greatest extent that is allowed, achievable, feasible or practicable in a given situation. It implies there are limitations or constraints but the goal is to reach the highest achievable point within those constraints. It suggests making the maximum effort within limits.

77. The combination of “SHOULD” and “AS MUCH AS POSSIBLE” means that the thing is recommended or advised to be done to the greatest extent that is practicable or achievable. It combines the advice from “should” with the limit or effort from “as much as possible”.

78. Taking the hint from the above definition and literal interpretation of the words and phrases above, it is my view that the above provision is not mandatory but advisory, recommendation and not a condition, most particularly when the phrase “without prejudice to their constitutional rights” is also used to qualify the provision. Access to Court is one of the constitutional rights of an employee. Thus, the provision is saying, without loss of your right to go to Court, it is desirable, advised or recommended or expected that you exhaust the internal mechanism to the greatest extent feasible, practicable, achievable in your given situation. Your right to go to Court is preserved.

79. In the light of the above construction of the provision, it is my view that the above provision is not mandatory on the employee and is not mandatory condition precedent constituting any clog to the right of the Claimant to approach the Court. The Claimant possess the right to do as much as possible and what is as much as possible depends on the capability and peculiar circumstances of the Claimant. It is not an objective but subjective yardstick depending on the fact and circumstances of each employee. I so hold.

80. Going further, I am in agreement with the submission of the Defendant Counsel that in cases requiring exhaustion of internal dispute resolution mechanism, such condition can only be bypassed where administrative process is inherently bias or ineffective; where there is breach of fundamental right of fair hearing; or where waiting to exhaust such internal mechanism will occasion irreparable damage. However, the Defendant Counsel is of the view that this Claimant’s scenario did not fall within any of these permissible exceptions. The Claimant’s Counsel viewed otherwise.

81. In the determination of whether the Court has jurisdiction, it is the Claimant’s pleading that the Court will examine. I have seen in the pleading of the Claimant in the Statement of Facts that the major grouse is that the suspension was not carried out in accordance with laid down procedure and as such constituted a violation and that the process is biased against him for not conducting relevant investigation and for not considering evidence of his ill-health which is a ground of excuse from duty and that the suspension is not temporary but indefinite in a manner that is unfair. See paragraphs 26, 27, 29 and 30 of the Claimant’s Statement of Facts. These averments are not denied by the Defendant. They are deemed admitted.

82. All these in my view constitute exceptions to exhaustion of internal mechanism which allow this Honourable Court to assume jurisdiction even where the internal mechanism is mandatory. I so hold.

83. In view of the foregoing findings and holdings, coupled with the dilated judicial interpretation of the concerned provision, the objection of the Defendant to this Court’s jurisdiction is misconceived and hereby overruled. This Honourable Court hereby hold that it rightly assumed jurisdiction and there is no impediment to assuming jurisdiction over this matter in this instance. I so hold. This issue is resolved against the Defendant.

84. On Issue 2, the law is immutable and sacrosanct that in civil cases like this instant case, the onus probandi lies on the Claimant to establish by credible, cogent and compelling evidence his claims before the Court. The Claimant bears this legal burden which is also pontificated in Section 131 to 134 of the Evidence Act, 2011 (as amended). See APC & Anor v Obaseki & Ors (2021) LPELR – 55004 (SC); Nduul v Wayo & Ors (2018) LPELR – 45151 (SC).

85. In line with the above principle of evidence law, the Claimant who seeks declaratory reliefs in this case must prove his entitlement to same. The Claimant must have to succeed only on the strength of his case, as those declaratory reliefs cannot be granted on speculation or guesswork or reliance on want or lack of defence, weakness of defence or even upon admission by the Defendant. The Claimant shoulders the burden to adduce credible and cogent proof to satisfy the court to grant the declaratory relief. See Nzurike v Obioha & Anor (2011) LPELR-4661(CA); Ndu v Unudike Properties Ltd (2008) 10 NWLR (Pt 1094) 24 at 29 para G (SC).

86. As such, the Claimant who wants this Honourable Court to declare that the indefinite suspension of the Claimant without proper investigation from all the relevant agencies is null and void; that the suspension was without consideration of his health challenge and thus breached his right to fairness and therefore ultra vires the powers of the Defendant for being made pending directive from the Ministry; that the Claimant who is hospitalized in Modibbo Adama Teaching Hospital cannot be said to abscond from duty; that the indefinite suspension is illegal, oppressive thus null and void for being in violation of Public Service Rules; must adduce credible and cogent evidence of the laid down rules and procedure that the Defendant is bound to follow to indefinitely suspend the Claimant and establish the Defendant’s non-compliance thereto.

87. Notwithstanding the above, it is now settled beyond peradventure that where a case is not defended, the case will be established on a minimal of proof. In Baba v Nigerian Civil Aviation Training Centre (1991) LPELR – 692 (SC), the Infallible Court dilated in this regard thus:

“…whenever on an issue, evidence comes from one side and this is unchallenged and uncontradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it. So, when evidence goes one way, the onus of proof is discharged on a minimal of proof. This is the result of all the decided cases including NICON v Power & Ind. Engineering Co. Ltd (1986) 1 NWLR (Pt 14) 1 p.27; Nwabuoku v Ottih (1961) 2 SCNLR 232; Nigerian Maritime Service Ltd v Afolabi (1978) 2 SC 79.” See also Ojigho v NBA (2019) All FWLR (Pt 1002) 871 at 891 paras E – F (SC); Bue v Dauda (2003) FWLR (Pt 172) 1892 at 1911 – 1912 (SC).

88. Before going further, it is pertinent to address the issue of the heading of the Claimant’s Witness Statement on Oath which was adopted as the Claimant evidence-in-chief without any iota of objection and upon clear and unequivocal response of the CW1 that he swore the Statement before the Commissioner for Oath at the Registry of this Honourable Court. The Defendant’s Counsel elicited under cross examination of CW1 that the heading of the adopted Witness Statement on Oath of the Claimant contains another person’s name.

89. I have noted the heading is captioned thus, “WRITTEN STATEMENT ON OATH OF MR. NICHOLAS DOPSAL”, while the body contains, “I, AHMED A.T MOHAMMED, Male, Adult, Muslim, Citizen Nigerian of Yola, Adamawa State, do hereby make oath and state as follows:”, and same was duly signed by the CW1. The Written Statement on Oath also bears the passport photograph of the CW1.

90. Does the above error vitiate the CW1 Written Statement on Oath in this case? I shall quickly make a recourse to the Oath Act and visit the repository of judicial precedents for proper aid. Section 4(2) & (3) of the Oath Act is apt in this regard. It provides thus:

 “(2) No irregularity in the form in which an oath or affirmation is administer or taken shall – (a) invalidate the performance of official duties; or (b) invalidate proceedings in any court; or (c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. (3) The failure to take an oath or make an affirmation, and any irregularity as to the form of oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth.”

91. Going by the above provisions, it has been the position of the law that upon the adoption of a witness statement on oath in the open court at a trial or hearing, after swearing the witness on oath right before the Court, whatever irregularity is noted on the witness statement on oath, so long as it does not go to the root of substance, it is cured by the adoption under oath before the Court. See Aliyu v Bulaki (2019) LPELR – 46513 (CA), Orji & Anor v INEC & Ors (2020) LPELR – 49525 (CA); Demrowl International Co. Ltd v GTB Plc (2019) LPELR – 48967 (CA).

92. Flowing from the above statutory and judicial authorities, it is my view that the error in the heading of CW1 Written Statement on Oath is a mere irregularity and the CW1 after being sworn on oath again in the witness box in Court, adopted the Witness Statement on Oath which bears his passport photograph and signature, this has cured this defect and the erroneously inserted name in the heading is by order of this Honourable Court deleted accordingly. This Honourable Court hereby hold that the irregularity is cured and it does not vitiate the adopted Claimant Witness Statement on Oath. I so hold.

93.  Now to the merit of the case, I have seen the untraversed pleading of the Claimant and thoroughly evaluated and examined the unchallenged evidence led thereon.

94.  I have read through Exhibit C1 – the Offer of Permanent and Pensionable Appointment, particularly paragraph (vi) thereof which states that,

“vi. That you will be subject, in all respects, to all conditions of service stipulated in the Federal Civil Service Rules and other regulations and instructions of the Authority.”

I have also seen Exhibit C2 – Confirmation of Appointment after the probationary period. This documentary exhibits are unchallenged by the Defendant. This piece of evidence has laid to rest any question as to whether the Claimant is an employee of the Defendant and whether the employment is regulated by statute, the Public Service Rules in this instance.

95. I have equally seen Exhibit C4 dated 17th July, 2014 that Claimant was promoted with effect from 1st January, 2014 based on merit and satisfactory performance. I have also seen in Exhibit C10 dated 26th September, 2017 that the Claimant was equally promoted with effect from 1st January, 2017 purely based on merit and satisfactory performance and by Exhibit C11 dated 4th February, 2021, the Claimant was further promoted to the rank of Senior Exe. Officer (Admin) on GL 09/2 i.e. N960,604.00 per annum with effect from 1st January, 2020 and the Defendant in that Notification of Promotion stated that the promotion was as a result of the Claimant’s hard work and dedication to duty.

96. I have seen Exhibit C12 – Posting Order dated 31st January, 2022 by which the Defendant posted the Claimant from its Headquarters to his last station, Lower Taraba Irrigation Project (Gassol) and directed the Claimant to report to the new station not later than 4th February, 2022.

97. It was the subsequent absence of the Claimant from duty after he had resumed at his new Station that brought about his suspension by the Defendant. This suspension is now the crux of the dispute between parties.

98. The Defendant argued that they were not aware of the Claimant’s ill-health. Defendant also argued that the Claimant did not notify and report his case as required by Public Service Rules, particularly PSR130301 which requires an officer who is receiving medical treatment within or outside the location of his duty post to report to his employer within 48 hours and if an officer is ill and unable to report for duty, he shall notify his Ministry/Agency in writing or by any other means of communication, and any prolonged absence from duty on ground of illness should be supported with any of the following – (a) excuse duty certificate, (b) light duty certificate, (c) medical certificate of treatment. The Defendant sought to justify the indefinite suspension until further directive from the Ministry on the ground of the alleged failure of the Claimant to obey the above provisions.

99. The Claimant contended that he complied with the above provisions. The Claimant pointed out that the Modibbo Adama University Hospital also complied. Furthermore, the Claimant said it was even the Defendant that failed to comply with Rule 130310.

100.         It is therefore apposite to look at the above referenced provisions of the Public Service Rules. Rule 130301 provides that,

 “If an officer is ill and unable to report for duty, he/she shall notify his/her Ministry/Agency in writing or by any other means of communication. Any prolonged absence from duty on ground of illness should be supported with any of the following documents: (a) Excuse Duty Certificate; (b) Light Duty Certificate; (c) Medical Certificate of Treatment duly authorized by the Health Care Provider.”

101.         While Rule 130302 states that:

“An Officer who is receiving medical treatment within or outside the location of his duty post shall report to his employer within 48 hours,” Rule 130303 also states that, “When an officer presents himself/herself to duly authorized Health Care Provider for medical examination, the letter shall examine and treat him/her and if necessary, give him/her either of the Certificates listed in Rule 130301 and if he/she is admitted as an in-patient, the Health Care Provider shall issue a medical certificate of treatment to the officer.”

102.         Whereas Rule 130310 places an obligation on an employer thus:

“If an officer’s absence from duty is not explained by him/her within 24 hours, enquiry shall be made at his recorded address to ascertain the cause of absence.”

103.         In the instant case, the undisputed evidence before me is that upon the absence of the Claimant from duty, though being aware and of the know of the absence on ground of illness, the Defendant still issued the Query and to which the Claimant responded within 24 hours. See Exhibits C5 & C8 as well as Exhibits C6 and C7. The above Rule 130310 requires that if the absence is not explained within 24 hours, the employer shall make enquiry at the employee’s recorded address to ascertain the cause of absence. It is in evidence that the Defendant actually set up a Committee to investigate the case of absence from duty. However, avalanche of evidences made available to the Committee which even refused to enquire from the relevant Hospital to ascertain the truth.

104.         Moreover, there is no evidence that the Defendant ascertain from the recorded address the cause of the absence. In the face of Exhibit C5 and Exhibit C8, which were in the receipt of the Defendant, it is proved that the Health Care Provider complied with the above provisions and the Claimant also complied but the Defendant chose to look away from all these and still went ahead to suspend the Claimant indefinitely. I so find.

105.         Notwithstanding the above, the question is whether this Honourable Court can even ascribe any probative value to the contention contain in the Final Address of the Defendant that they were not informed or aware of the ill health status of the Claimant and that the Claimant did not notify as required by the above provisions of the Public Service Rules when the Defendant has failed or neglected to file pleading in defence and equally failed to lead any evidence in rebuttal of the case of Claimant?

106.         This Honourable Court is tempted to accord the above argument of the Defendant’s Counsel in the Final Address some value but upon realization that the Defendant failed to lead any evidence in proof of those assertions, it is trite law that the address of the Defendant’s Counsel, no matter how brilliantly canvassed and alluring, can never take the place of evidence or legal proof. See Ucha & Anor v Elechi & Ors (2012) LPELR – 7823 (SC); Andrew & Anor v INEC & Ors (2017) LPELR – 48518 (SC); and Auto Import Export v Adebayo & Ors (2005) LPELR – 642 (SC).

107.         The Defendant is not only expected to plead these facts in a Statement of Defence but also to lead evidence in proof of averments. The Defendant’s Counsel, rather than doing this, has constituted her Final Written Address as an avenue to adduce evidence. Unfortunately, this Court can only take evidence from witnesses on oath or affirmation and not in final address.

108.         In view of the above, I hereby discountenance the address of the Defendant Counsel on the fact of whether the Defendant was informed or not and the counsel’s challenge against the evidence of the Claimant’s compliance with PSR130301 in the absence of any evidence in rebuttal of the testimony of CW1 to the effect that the Defendant was informed and necessary communication from the Claimant and the Health Care Provider were made to the Defendant. I so hold.

109.         Notwithstanding the above, in the evaluation of the evidence adduced by the Claimant, I have seen Exhibit C3 which predated the Query. Exhibit C3 – Medical Certificate dated 05-08-2015 by Accord Surgery Orthopedics wherein the undersigned thereof Dr. A.R. Garuba (Medical Director) reported thus:

“To Whom It May Concern. Dear Sir/Madam, Re-Medical Report AHMAD A.T. MOHAMMED (ASH. NO.33463). The above named twenty-six years old man was seen in this Hospital on 4/3/2014 with 10-15years history of pains in his left hip joint. Clinical/Radiological examinations revealed a very tender left hip with destruction of the head of femur and the acetabulum. There were also arthritic changes. He was counselled for Girdlestone arthroplasty and full implications of the surgery were explained to him. On 6/3/2014, he had the surgery done. Patient did well post operatively and was discharged home from the hospital two weeks after the surgery to be seen on outpatient bases. He came for follow-up two times and during his last visit on 20/4/2015; a year after the operation, he complained of some pains in the same hip. He was placed on Tabs. Diclofenac and multivitamins. He has requested for a medical report and this has been obliged. Thanks.”

110.         The above showed that the Defendant was aware of the health condition of the Claimant as far back as 2015. After that treatment, the Claimant continued in the service of the Defendant and still performed excellently as clearly attested to by the Defendant in those Notifications of Promotion, Exhibits C10 and C11.

111.         The Query was issued on 13th February, 2023 after the existence of Exhibit C5. I have seen Exhibit C5 dated 18th January, 2023, a Medical Report from Modibbo Adama University Teaching Hospital, Yola wherein the undersigned Dr. B.R. Chama reported thus:

“TO WHOM IT MAY CONCERN. RE: AHMED ABDULLAHI T. MOHAMMED, HOSP. NO: 011878. Dear sir/Madam, the above named person is 36yrs old man, who is a known diabetic, hypertensive patient on medication more so with post-operative pains which he had in 2013 for Girdlestone arthroplasty. He is currently on close monitoring for his condition as he is being noticed to have irregular sleeping pattern with fluctuation of sugar level, he is being planned for regular follow up. I request your cooperation to grant him stay in close proximity to the health care center for optimum and prompt care. Thank you.”

112.         CW1 in his oral testimony stated that this Exhibit C5 was served on the Defendant. Under cross examination, the Defendant Counsel elicited via CW1 that there is nothing on Exhibit C5 to show that the Defendant was in receipt of the document, as same did not contain endorsement of acknowledgment of receipt. Notwithstanding this, the Defendant did not deny being in receipt of Exhibit C5 and this fact is therefore not in issue. It is elementary law that facts not disputed are taken as admitted and established and no longer require proof. See Aderonpe v Eleran & Ors (2018) LPELR – 46308 (SC); Adelusola & Ors v Akinde & Ors (2004) LPELR – 120 (SC).

113.         Notwithstanding the above, I have seen in evidence that not only did the Claimant respond to the Query, Exhibit C6 dated 13th February, 2023, wherein the Claimant was queried thus:

“It has been observed that you have absent yourself from work for quite a long time without permission. In view of the above, I am directed to demand from you in writing, within 24 hours why disciplinary action will not be taken against you for absent from duty.”

114.         In Exhibit C7 dated 14th February, 2023, Claimant’s reply to the Query, wherein the Claimant explained thus:

“Your query become to me as a surprise because you are fully aware of my health condition and it is with your express permission that I am out of station for medical purpose. However, to remind you my health challenges I attached a letter from Modibbo Adama University Teaching Hospital Yola to confirm to you my health status. However, if you are in doubt you can visit the Hospital for confirmation via my Hospital No. 11878 AHMED ABDULLAHI. In view of the foregoing, I hope you will officially consider the letter from my Hospital and my Health Status. I remain yours faithfully.”

115.         In addition to this response by the Claimant, the Modibbo Adama University Hospital also wrote the Defendant via Exhibit C8, medical report dated 27th February, 2023 signed by the two undersign Dr. Ahmed B. Umar for: Dr. Fashe Joseph (Consultant: Orthopedic & Trauma) and the Chairman, Medical Advisory Committee. It reads thus:

“RE: ABDULLAHI AHMED, 37YEARS, MALE, HOSPITAL NO. 011878. The above patient presented to us in Clinic with complaint of pains in the left hips and difficulty to use for 22years. He had left Girdlestone arthroplasty in private Hospital in Kano. He is evaluated to have severe Bilateral Osteoarthritis of both Hip Joints, he is currently counseled for Total Hip replacement of both hip joint. Surgery Fee will cost N3,500,000.00 (Three Million Five Hundred Thousand Naira Only) for each Hip a Total of N7,000,000.00 (Seven Million Naira Only) for both hips. Kindly render him all necessary support. Thank you.”

116.         In the light of the above available uncontroverted oral and documentary evidence placed in the face of this Court, I am unable to see the basis of the contention of the Defendant’s Counsel that the Defendant was not aware or informed of the Claimant’s ailment.

117.         This Honourable Court is of the view that the Claimant’s evidence has substantially satisfied the condition of PSR130301 which requires an officer who is receiving medical treatment within or outside the location of his duty post to report to his employer within 48 hours. The oral testimony of CW1 coupled with Exhibit C8 – a medical certificate of treatment, has substantially satisfied the requirement of notification. I therefore discountenance the contention of the Defendant on this score and hold that the Claimant substantially complied with PSR130301. I so find and hold.

118.         It is the contention of the Claimant that despite this evidence of ill-health and knowledge of the Defendant of same, the Defendant still went on to suspend him indefinitely until further directive of the Ministry, which directive till date has failed to arrive in spite of the fact that the Claimant complained against the Indefinite Suspension vide Exhibit D1, and since the suspension till date, his salaries had been stopped or withheld by the Defendant.

119.         I have seen Exhibit C9 – Letter of Suspension dated 27th October, 2023 by which the Defendant indefinitely suspended the Claimant, thus:

“Sequel to your appearance before an investigation committee and its subsequent report to the Management which found you guilty of an Act of Serious Misconduct (PSR 100402), I am directed to inform you that Management has approved your suspension indefinitely (PSR 100406) for abscondment from duty without leave until further directive from the Ministry.”

120.         It is not in dispute that the Claimant was issued Query and he replied. It is not also in dispute that a Committee was set up to investigate the case of absence from duty and the Claimant also appeared before a Committee. The Claimant admitted these facts. Claimant contends that for not considering his health condition, the suspension breached his right to fairness, and for not conducting proper investigation at relevant agencies, the suspension is null and void; and thirdly for being made pending further directive from the Ministry which procedure is not known to the Public Service Rules for suspension, the suspension is ultra vires the power of the Defendant and also unlawful. Expectedly, the Defendant has contended otherwise.

121.         In order to do justice to the above contention, it is very important to state that the issue here is indefinite suspension of an employee and it is crucial to lay bare the provisions of the Public Service Rules on suspension and understand the nature and effect of suspension as well as when suspension can be held to be unlawful, in order to come to the resolution of who between the parties is right in this case.

122.         The provision which governs the parties is not strange to both parties. Both parties relied on the same provision.  For this purpose, I will make use of Public Service Rules 2021 which is in pari materia with the same provisions in Public Service Rules 2023. Rule 100102 states that,

“The power to dismiss and to exercise disciplinary control over Officers in the Federal Civil Service is vested in the Federal Civil Service Commission.” While Rule 100103 states that, “The Federal Civil Service Commission has delegated full disciplinary powers to Permanent Secretaries and Heads of Extra-Ministerial Offices in respect of Officers on G.L. 13 and below with the exception of the power of dismissal which has been delegated only from G.L. 06 and below.”

123.         Rule 100402 at paragraph (e) lists absence from duty without leave as an act of serious misconduct. Rule 100403 provides that, “Disciplinary procedure for serious misconduct shall be strictly adhered to in accordance with Rules 100302 to 100306.”

124.         Rule 100302 requires Query to be issued by the superior officer and response to be made to same by the affected employee, and particularly where the superior officer is of the view that the officer has not exculpated himself and deserves some punishment, Rule 100304 shall apply.

125.         Rule 100304 prescribes that

“(a) It shall be the duty of every Officer to report any case of misconduct that comes to his notice to an Officer superior to the Officer involved. (b) When an Officer’s misconduct is brought to the notice of his Superior Officer, it shall be the duty of that Superior Officer to report it through his HOD to the Director, Human Resource without delay. If the Director, Human Resource consider it necessary that the Officer should be interdicted, such recommendations shall be made in the report. (c) On receiving the report, the Permanent Secretary/Head of Extra-Ministerial Office shall take action in accordance with Rules 100302 – 100306 as appropriate and, if necessary, shall interdict the Officer. (d) At the appropriate point in the investigation, the Officer may be suspended in accordance with Rule 100406.”

126.         Rule 100305 provides that,

“If it is presented to the Federal Civil Service Commission that an Officer has been found guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 100307 with a view to dismissal, it may cause an investigation to be made into the matter in such a manner as it considers proper. The Officer shall be entitled to know the whole case made against him, and shall have adequate opportunity of making his defense. If as a request the Commission decides that the allegation is proved, it may impose any other punishment upon the officer such as reduction in rank, withholding or deferment of increment or otherwise.”

In the instant case, the matter has not gotten to the above stage. The matter is at the stage of suspension.

127.         The main bone of contention is Rule 100406 on suspension which provides that:

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

128.         Rule 100307 at paragraph (xiii) requires that, “All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.”

129.         The above provisions of the Public Service Rules are clear and not ambiguous and as such, this Honourable Court shall give it plain meaning. All disciplinary procedures are to be completed within 60 days except where it involves criminal cases. The instant case of absence from duty is not a criminal case. As such, it is expected to have been concluded within 60 days. Suspension is to apply where a prima facie case of serious nature has been established against an officer and it is considered necessary in the public interest to prohibit the officer from carrying out his duties.

130.         Moreover, when shall this suspension be imposed? The same provision answers thus: Pending investigation into the misconduct, the authority that has the power to suspend the officer shall forthwith suspend him from the exercise of the powers and functions of his Office and from the enjoyment of his emolument.

131.         Suspension means to defer, interfere, interrupt, lay aside, temporize or hold in abeyance. It does not mean terminate, extinguish, or bring to an end. It means a temporary privation or deprivation or stoppage of privileges and rights of a person. It is a disciplinary procedure that can be for a fixed or indefinite period. Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. An employer has no implied power to punish an employee by suspending him. The power to use suspension as punishment must be express and must be exercised in accordance with the laid down procedure. Also, merely suspending an employee from performing his duties without stating whether it is with pay or without pay, renders the employer liable for paying the employee’s salary during the period of suspension. Also where the suspension is wrongful or unlawful, the employer cannot escape liability for payment of salary for the suspension period. See Mobil Producing Nig. Unltd v Udo (2008) LPELR – 8440 (CA); Mobil Producing (Nig) Unltd v Effiong (2011) LPELR – 9055 (CA), Longe v FBN Plc (2010) LPELR – 1793 (SC); Federal Polytechnic Idah & Anor v Egbeke (2019) LPELR -  48727 (CA).

132.         In Bamisile v NJC & Ors (2012) LPELR – 8381 (CA) the Court categorically held that,

“Suspension of an employee from work only means suspension from duties assigned to him by virtue of his office…. Such suspension will not deny him of payment of his salaries where the suspension was not specifically stated to be without salary or on half salary. Where no such specification is made, the suspended officer is entitled to his salary and other emoluments during the period of the suspension.”

133.         Suspension is therefore not a demotion and does not entail a diminution of the rights of the employee given to him under the law.

134.         Another point of law to note is that suspension cannot amount to breach of fundamental rights, as at that stage of suspension, there is no obligation on the employer to give fair hearing or any hearing at all. It is only where suspension is used as punishment after investigation and disciplinary proceeding has been concluded that natural justice will be obligated. Suspension pending investigation is for the purpose of protecting the business interest of the employer. Suspension can be imposed before or in the course of disciplinary proceedings. See Ayewa v UNIJOS (1999) LPELR – 674 (SC).

135.         All that is required is that the suspension must be done in line with the express agreed laid down procedure, if any, between the parties. It is when it is not done in accordance with the agreed laid down procedure, that it will be wrongful and if it is in employment with statutory flavor, such suspension will be unlawful, illegal, null and void for violation of statute. See Bamisile v NJC & Ors (Supra); Federal Polytechnic Idah & Anor v Egbeke (Supra).

136.         In the light of the above clear provisions of PSR100406, two conjunctive conditions are set out thus: (1) A prima facie case of serious nature has been established against an officer (2) It is considered necessary in the public interest to prohibit the officer from carrying out his duties. If these two elements have been fulfilled, then the next is that the suspension is to be imposed pending investigation into the misconduct.

137.         In the instant case, I have looked at the Suspension Letter. There is no evidence by the suspending authority indicating that it was considered necessary in the public interest that the Claimant be prohibited from his duties. I have also seen that the indefinite suspension of the Claimant was not made pending investigation into the misconduct but until further directive from the Ministry. This is to my view a violation of the above cited provision, and thus unlawful, illegal, null and void. I so hold.

138.         I also agree in totality with the Claimant that the manner in which the suspension is made indefinite and not paying his salary till date as well as until further directive from the Ministry which till date has never been given, is tantamount to constructive dismissal. My reason is not farfetched. Suspension by the provision of Public Service Rules is to be made pending investigation or disciplinary action. The time frame for all disciplinary procedure is 60 days by the provision of Rule 100307(xiii). In the instant case, the Defendant has chosen to suspend the Claimant indefinitely without paying his salaries and till date nothing has been done. This is nothing short of constructive dismissal and an unfair labour practice. See Akinyanju v UNILORIN (2005) 7 NWLR (Pt 923) 87; Mr Emeka Onyema v Diamond Bank (Unreported Suit No. NICN/LA/326/2014). Mr Adelabu Patrick Olasumbo v Ecobank Nigeria Limited Suit No. NICN/LA/257/2016 unreported decision delivered on the 10th of May 2017 per B. B. Kanyip, J.

139.         Whichever way one looks at it, in the light of the above findings coupled with the dilated judicial precedents and bound by the position of the law applicable in this case, I cannot but hold that the Claimant’s indefinite suspension without pay and not made pending any disciplinary action or investigative action but until further directive from the Ministry, is null and void.

140.         Having held that the suspension in this instance is a violation of the Public Service Rules and thus null and void, the Claimant in this employment with statutory flavor is entitled to be recalled and reinstated as sought. See Kwara State v Ojibara (2006) 18 NWLR (Pt 1012) 645; Odibo v FBN Plc (2018) LCN 12072 (CA).

141.         The Claimant is seeking an order directing the Defendant to pay to the Claimant forthwith, all such salaries, allowances and other entitlements that fell due and such incremental rates commensurate to his rank as at the January, 2023. These are special damages which must be specially pleaded and particularized and specifically and strictly proved by cogent and credible evidence before it can be honoured and granted by the Court. See Incar (Nig) Ltd v Benson Transport Ltd (1975) LPELR – 1512 (SC); NARINDEX Trust Ltd & Anor v NICMB Ltd (2001) LPELR – 1939 (SC).

142.         Has the Claimant been able to discharge the onus of proof of this special damages in this case? I have seen that Exhibit C9 is silent about whether the Claimant’s salaries were being paid during the suspension or not. It is however the unrebutted evidence of CW1 that since the suspension, the Defendant has ceased paying the Claimant’s salaries. It is also in evidence by Exhibit C11 that the Claimant is on the rank of Senior Exe. Officer (Admin) on GL 09/2 i.e. N960,604.00 per annum with effect from 1st January, 2020. The Claimant has averred and proved that he was not paid while the suspension subsists indefinitely. There is no denial of this averment and evidence by the Defendant.

143.         The Defendant’s Counsel has rightly canvassed the position of the law that suspension, whether constructive or formal is not a termination or dismissal from service and that while it subsists, the entitlements of the employee is not defeated. I totally agree with the submission of the Defendant’s Counsel on this score.

144.         Going by the dictate of the above dilated judicial precedents, it is my view that the Claimant is entitled to be paid all his entitlement as a staff while on suspension. See Bamisile v NJC & Ors (Supra); Kwara State v Ojibara (Supra).

145.         Moreover, having held that the Indefinite suspension of the Claimant by the Defendant without pay in this manner is a constructive dismissal, this Honourable Court hereby set same aside as an unfair labour practice which this Honourable Court can in its discretion penalize in addition to any other damages already awarded to the Claimant. See Board of Management of FMC, Makurdi v Kwembe (2015) LPELR – 40486 (CA), Mogaji v Benue State University (2022) LPELR – 56727 (CA).

146.         In light of the above, it is my view that the Claimant has rightly claimed general damages in this case. The Claimant asked for (Two Million Naira) as general damages against the Defendant. It is my view that this is an appropriate case where the general damages should be granted in consideration of the unfair labour practice by way of indefinite suspension practiced on the Claimant by the Defendant in this case.

147.         The Claimant’s claim for an order directing the Defendant to pay the Claimant costs and legal fees in the sum of One Million Five Hundred Thousand Naira (N1,500,000.00) or any such sum as might have accrued in the course of the commencement of this suit until judgment is delivered. This Honourable Court has enormous discretion and powers to award cost of action by the provision of Section 40 of its enabling Act. This is in tandem with the principle that a successful party in litigation is entitled to be indemnified of the cost and expenses he was put through as a result of the litigation by the opposing party. Under cross examination, the CW1 confirmed that asides other expenses he paid his lawyer N1,500,000.00 as legal fee. There is no contrary evidence before the Court. The Claimant is entitled to be indemnified of the cost and expenses he was put through as a result of this litigation.

148.         Flowing from all my findings and holdings above, the second issue donated by this Honourable Court is also resolved against the Defendant.

149.         In conclusion, the two issues for determination formulated by this Court are hereby resolved against the Defendant and in favour of the Claimant and for sake of clarity, this Honourable Court hereby enter judgment in favour of the Claimant and declare and order as follows:

a.      THAT the indefinite suspension of the Claimant in violation of the Public Service Rules 2021 is unlawful, ultra vires the powers of the Defendant and null and void.

b.     THAT the Claimant who is hospitalized in Modibbo Adama University Teaching Hospital to the knowledge of the Defendant cannot be said to abscond from duty.

c.      THAT the Defendant is by order of this Honourable Court directed to reinstate the Claimant with his full status forthwith.

d.     THAT the Defendant is by order of this Honourable Court directed to pay to the Claimant forthwith, all such salaries, allowances and other entitlements that fell due and such incremental rates commensurate to his rank as at the date of the unlawful suspension, starting from the date of suspension till this date of Judgment.

e.      N2,000,000.00 (Two Million Naira) is by order of this Honourable Court awarded as general damages against the Defendant.

f.       THAT a sum of One Million, Five Hundred Thousand Naira (N1,500,000.00) is by order of this Honourable Court assessed and awarded against the Defendant as cost of this action in favour of the Claimant.

g.      THAT the Defendant shall within 14 days of this Judgment comply with the orders granted in this Judgment, failing which the provisions of Order 47 Rule 7 of the Civil Procedure Rules 2017 of this Court is automatically and immediately invoked and the total judgment sum shall attract annual interest at the rate of 10% till the full and final liquidation of the Judgment Sum.

150.                     This is my Judgment. Judgment read and delivered in open Court.

 

 

                                                                                                    _____________________________________

                                                                              HON. JUSTICE J.T. AGBADU-FISHIM PhD

                                                                        PRESIDING JUDGE

                                                                      6/05/2025