IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 28TH SEPTEMBER, 2021                   SUIT NO: NICN/IB/19/2016

 

BETWEEN

 Ogunjinmi Busola  Adebisi                              -                       -                       Claimant

 

AND

1,        Board of Inland Revenue, Oyo State

2.        Civil Service Commission, Oyo State

3.        The Attorney General, Oyo State        -                       -                  Defendants

 

REPRESENTATION

Oladapo Ajisegiri with Ayo Omitola for the Claimant

Adeola Ige Adeleke for the Defendants

 

 

JUDGMENT

1.        Introduction & Claims

1.        The Claimant commenced this suit via his General Form of Complaint, Statement of facts, witness deposition and list and copies of documents to be relied upon at trial all dated and filed on 16/2/16. Claimant sought the following reliefs against the Defendants –

 

1.        A Declaration that the dismissal of the Claimant by the 1st Defendant through the letter referenced BIR/Vol. 1l621l43 and dated 16/11/2015 but served on the Claimant on 17/11/2015 is illegal, unlawful, null void and of no effect, being contrary to the Civil Service Commission Regulations, Laws of Oyo State of Nigeria, 2000.

2.        A Declaration that the dismissal of the Claimant is unreasonable, unjustifiable, mala fide and an unfair labour practice.

3.        A Declaration that the Defendant’s letter dated 28l8l2015 with reference number BIR/Vol. IU50/325 promotion the Claimant remains valid and subsist.

4.        An Order setting aside the 1st Defendant letter with reference number BIR/Vol. 621/43 dated 16/11/2015, through which the Claimant was dismissed as Clerical Officer GL. 04.

5.        An Order reinstating the Claimant as Clerical Officer GL. 04 to the Pensionable establishment of the Board of Internal Revenue, without any loss of employment rights, including promotion.

6.        An Order for the payment of the full salaries, allowances, fringe benefits and all other outstanding entitlement accruable to the Claimant from the month of February 2016 (when this suit was instituted) till the determination of this suit as if she was never dismissed.

7.        An Order for the payment of all earned backlogs of salaries and allowances amounting to =N=235,967.00 (Two Hundred and Thirty Five Thousand, Nine Hundred and Sixty Seven Naira) comprising of the following:-

 

i.          Payment of =N=114, 323.20 (One Hundred and Fourteen Thousand Three Hundred and Twenty Three Naira Twenty Kobo) being arrears of salaries from September 2015 till January 2016 at the rate of =N=22,864.64 (Twenty Two Thousand, Eight Hundred and Sixty Four Naira Sixty Four Kobo) per month.

ii          Payment of =N=26, 400 (Twenty Six Thousand Four Hundred Naira) being annual leave bonus for the year 2014 and 2015, at the rate of =N=13,200 per month.

iii.       Payment of =N=95, 244.00 (at the rate of =N=3, 968.5 per month for 24 months for the period December 2014 till January 2016) being share of between 3% and 5% of revenue generated’ (also called cost of collection) by the 1st Defendant, on the conventional average of between =N=3,000 to =N=5,000 per month, depending on what is arbitrarily declared by the 1st Defendant.

8.     An Order for the payment of 10 percent interest per annum on unpaid salaries and allowance from September 2015 till the determination of this Suit.

9.     General Damages against the Defendant for wrongful and unlawful dismissal of the Claimant in the sum of =N=1, 000, 000. 00 (One Million Naira Only).

10.                        Cost of this suit in the sum of =N=1, 250, 000 (One Million Two Hundred and Fifty Thousand Naira) only.

 

2.        Defence and Counter Claim

2.        On 9/8/17, the Defendants filed their statement of defence, witnesses’ depositions along with list and copies of documents to be relied upon at the trial. They also counterclaimed against the Claimant as follows –

1.     A Declaration that the dismissal of the Claimant by the 1st Defendant through letter referenced BIR/VOL. 1/62:1./ 43 dated 16/11/15 is valid and lawful.

2.      An Order for payment of the sum of =N=454,234.00 (Four Hundred and Fifty Four Thousand, Two Hundred and Thirty Four Naira).

3.      An Order for the payment of 10 percent interest of the said indebtedness pending the determination of this suit.

4.      General  Damages  against  the  Claimant  for  gross misconduct  and  failure  to  remit  outstanding indebtedness within the stipulated 3 months.

3.        Case of the Claimant

3.        Claimant opened her case on 3/4/19 and testified in chief as CW1. CW1 adopted her witness depositions of 16/2/16 and 14/11/17 as her evidence in chief and tendered 13 documents as exhibits. The documents were admitted in evidence and marked as Exh. BA1 – Exh. BA13 respectively.

 

4.        The summary of the case of the Claimant is that her dismissal based on unproven allegation of embezzlement of public funds and without affording her any opportunity of fair hearing was illegal, unlawful, wrongful, null, void and of no effect. It is her case that the Defendants did not give her any opportunity to attend any inquiry or investigation panel and/or proceedings after the service on  her of query dated 16/9/15 through which she was asked to forward an exculpating statement on why disciplinary action should not be taken against her.

5.        Under cross examination on 19/11/19, Claimant testified that she was not employed by the Civil Service Commission but by the 1st Defendant; that her employment was confirmed on 5/10/09; that she received an invitation to appear before a Panel in 2015; that she was invited there to defend herself; that in November 2014 she started work as AutoReg Processor; that before then she was a Clerk and Tax Agent and that she was not trained as AutoReg Processor.

6.        Claimant testified further that she had an account in her name as AutoReg Processor; that she normally paid  whatever money she received into Government account; that she submitted a defence to the Panel after the query given to her; that there more than 40 employees invited to the Panel; that she appeared before the Panel the very day she was called; that she received salary till August, 2015; that there is what is called Cost of Collection usually given to the staff by the 1st Defendant; that she was arrested in respect of money meant to be remitted; that she was subsequently released pursuant to an undertaking and that she did not promise to pay any money meant to be remitted.

 

7.        The witness added that she is aware of the 2nd Panel but constituted of the same people; that she told the first Panel that she remitted all the money in her custody to the 1st Defendant; that she signed a Verification Form at the Panel and that it was what she presented at the Panel as her defence.

8.        On 17/3/2020, the Defendants opened their defence and called a lone witness in person of Mustapha Lukman Adebayo a Senior Inspector of Taxes. The witness adopted his witness deposition of 30/8/17 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1 – Exh. D5 respectively.

 

4.        Case of the Defendants

9.        To the Defendants, Claimant was employed and issued with Offer of Appointment letter by the 1st Defendant dated 5th day of October 2009 as a Clerical Assistant on salary scale GL 03; that the said letter tendered as Exhibit during the course of the trial contains conditions attached to the appointment; that by a letter dated 20th June 2012, with Ref number: BIR/ Vol. II/35/54 the 1st Defendant confirmed the Appointment of the Claimant with effect from 2nd day of October 2011 and that subsequently while the Claimant was a staff of the 1st Defendant between January 2013 to February 2015, she was queried, suspended and dismissed for her failure to remit the sum of =N=454,34.00 (Four Hundred Fifty-Four Thousand, Two Hundred and Thirty-Four Naira) only to the 1st Defendant which is a public fund.

 

10.      Under cross examination on 11/1/21, witness testified that he agreed that Claimant’s employment is made subject to Government regulations and instructions; that he Claimant was arrested and released on 16/9/15 the same day she was queried; that Claimant was never invited to face any Panel between the time she was queried and the time she was dismissed and that there is no document before the Court to support the assertion that she agreed to refund money allegedly fraudulently taken.

 

4.        Final Written Addresses of Counsel

11.      At the conclusion of trial and pursuant to the direction by the Court learned Counsel on either side filed their final written addresses.

 

12.      On 9/3/21, the Defendants filed a joint final written address of 31 pages. In it learned Counsel first raised issue bordering on the jurisdiction of this Court to hear and determine this case. The argument of Counsel is that the General Form of Complaint filed by the Claimant was incompetent same having been signed by a non-existent person in law since the name of Counsel who signed same was not indicated on it citing Section. 2(1), Legal Practitioners Act, Laws of the Federation of Nigeria, 2004. Counsel submitted that the import of the section cited is that Court processes cannot be signed by any person not recognized as Legal Practitioner and that such a person cannot practice Law as such filing or signing Court processes citing Okafor v. Nweke (2007)10 NWLR (Pt. 1043) 521 at 533 & SBL Consortiun v. NNPC (2016)9 NWLR (Pt. 1252) at 317. The Defendants submitted further that the Statement of Facts alleged to have been signed by one Itorobong Michael Umoren was also incompetent as same was accompanied by the Seal belonging to one Oreifa Adekunle Zakariyu citing Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007. Counsel prayed the Court on these grounds to dismiss the case of the Claimant.

13.      Counsel later set down these 3 issues for the just determination of this case -

1.        Having regard to the facts and circumstances of this case, whether the Claimant is entitled to the reliefs sought and likewise whether the Counter-cIaimants are entitled to their counterclaims.

2.        Whether the appointment of the Claimant enjoys statutory flavour that could birth the order of reinstatement prayed for by the claimant.

3.        Whether a Court must have convicted the Claimant accused of financial misconduct as in the case with the 1st Defendant before she could have been properly DISMISSED

 

14.      Arguing these issues, Counsel submitted that by Claimant’s admission under cross examination, he was not employed by the Civil Service Commission that is the 2nd Defendant but was employed by the 1st Defendant and that the 1st Defendant had power to employ staff as the Claimant citing Section 7(i)(j) & (k), Oyo State Internal Revenue Board Law Cap. 106, 2000. Counsel prayed the Court to hold that the appointment of the Claimant was done solely by the 1st Defendant and that same had nothing to do with the 2nd Defendant.

 

15.      On whether the appointment of the Claimant enjoys statutory flavor to birth the order of reinstatement as sought, Counsel submitted that for an employment to enjoy statutory flavor it must be protected statute or a statute laid down the regulations made to govern the procedure for employment and discipline of an employee citing F.M.C, Ido Ekiti & Ors. v. Alabi (2012)2 NWLR (Pt. 411); that the fact that an organization is a statutory body does not mean its employees are protected by the statute citing Galadima v. Governor of Yobe State & Ors. (2018) LPELR-47172 (CA). Counsel submitted that the appointment of the Claimant has no statutory flavor and prayed the Court to so hold.

 

16.      On the legality of the dismissal of the Claimant, Counsel submitted that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded him to be heard even if the accusation involves commission of crime citing U.B.A Plc v. Oranuba (2014)2 NWLR (Pt. 1390) 1. Learned Counsel submitted that by Claimant’s evidence under cross examination, she was invited to appear before a Panel on 20/5/15; that the letter was an invitation to defend herself against the allegations; that he submitted a Verification Form and that he was given a query 5 months after in September 2015. Counsel submitted further that Claimant was afforded opportunity to defend herself and that she could be summarily dismissed without recourse to the Court of law citing Olarewaju v. Afribank Nigeria Plc 2001) LPELR-2573 (SC). Counsel urged the Court to hold as such.

 

17.      Learned Counsel added further that in a private employment, the employer can dismiss in all cases of gross misconduct citing the decision of the apex Court in Yusuf v. Union Bank of Nigeria (1996)6 NWLR (Pt. 457) 214-215 and that the conduct of an employee which constitutes gross misconduct, without much ado, attracts summary dismissal citing U.B.N Plc. v. Soares (2012)11 NWLR (Pt. 1390) 1.

 

18.      On the claim for aggravated damages, learned Counsel submitted that the Claimant is not entitled to any such damages having failed to show by credible evidence how her right was trampled upon by the Defendants and that Claimant has not proved the quantum of damages, if any, suffered by her citing International Messengers Nigeria Limited v. Engr. David Nwachukwu (2004) 6-7 SC 88 at 98-100.

 

19.      Counsel prayed the Court to dismiss the case of the Claimant and hold the counter claims proved by the evidence led and exhibits tendered by the Defendants. Counsel urged the Court to grant all the heads of counterclaims as sought.

 

20.      Claimant filed a 27-page final written address on 15/6/21. It was dated 29/3/21. Counsel first reacted to the preliminary issues raised by the Defendants. Counsel submitted that in the instant case a registered legal practitioner signed the General Form of Complaint as opposed registered law firm in the cases of Okafor v. Nweke & SBL Consortium v. NNPC cited by the Defendants and that the two cases have no relevance to the present case.

 

21.      On affixing the Stamp of a Counsel different from the Counsel who signed the process, learned Counsel submitted that what is required within the meaning of Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners is simply an NBA approved Stamp. Counsel prayed the Court to hold as such. Counsel argued further that the rationale for the Stamp, citing CAR Limited v. LASACO Ass.Plc & Anor. (2016)LPELR-41260, is to checkmate quacks in the legal profession and to ensure that Legal Practitioners fulfill their financial obligations to the NBA and that to hold that the issue vitiate the process or the proceedings would amount to enthroning technicality at the expense of substantial justice citing Nyesom v. Peterside (2016)7 NWLR (Pt. 1512) 452 at 512. Learned Counsel urged the Court to discountenance the argument proffered by the Defendants against the General Form of Complaint of the Claimant.

 

22.      The Claimant set down four main issues for the just determination of this suit as follows –

1.     Whether Exh. D1 (1-30) an undated “Minutes of the meeting of the Junior Staff Disciplinary Committee on the non-remittance of accruable revenue on renewal of harmonized vehicular documents by staff of board of internal revenue”, has any evidential value in law and can be relied upon by the Honourable Court.

2.     Whether by the Appointment letters both dated 5/10/2009 (Exhibits BA1 and BA2), Exhibit BA3, (confirmation of appointment), letter of promotion (Exhibit BA4) and Exhibit D2 (the query dated 16/9/2015),the claimant’s appointment, promotion, discipline, and other conditions of service were not subject to civil service Rules, General Order and other Government Regulations and instructions all made pursuant to the Constitution of the Federal Republic of Nigeria, 1999, as amended, and whether the Claimant’s appointment is not statutory.

3.     Whether the Defendants proved the allegation in Exh. D2 (the query dated 16/9/2015) of embezzlement of government fund to the tune of =N=454, 234.00 “punishable under the Public Service Rules, Vol. 1, Section 4 {030402 (L) of January 2013”.

4.     Whether the Defendants are allowed to dismiss Claimant Retrospectively.

23.      On issue 1, learned Counsel argued that Exh. D1  is an undated document with no evidential or probative value citing Visinoni v. Brahams & Anor. (2015) LPELR-40405 (CA). Counsel urged the Court to hold in favor of the Claimant.

 

24.      On issue 2, Counsel submitted that Exh. BA1 stipulates that the Claimant’s employment is subject in all respects to all conditions of service stipulated from time to time in General Order and other Government regulations and instructions; that Exh. BA2 reiterates the appointment of the Claimant as a Public Officer; that Exh. BA3 states that Claimant’s appointment has been confirmed by the Executive Chairman of the 1st Defendant while Exh. D2 was brought under Public Service Rules, Vol.1, section 4 (030402) (L) of January 2013 and that as the Court of Appeal held in Rasheed Busari v. Osun State Water Corporation & Anor. (2007) LPELR-9036 (CA). 

 

25.      On issue 3, Counsel submitted that the Defendants did not prove the allegation of embezzlement of the sum of =N=454,234.00 contained in Exh. D2; that the Defendants did not comply with the procedures under Section 4 particularly Rule 030402 of the Public Service Rules especially respecting notification of offence in writing, stating the ground rules, the rule, regulation broken, the likely penalty, access to documents or access to reports against the officer, opportunity for written defence, the setting up of a Board of Inquiry without the Head of the affected Officer being a member of the Board, requirement to appear before the Board to defend himself/herself, the requirement of opportunity to cross examine the witnesses of the accusers, no documentary evidence to be used against the affected officer without being previously supplied to the officer and the requirement of the Board making a report to the Civil Service Commission which report shall be considered by the Civil Service Commission. Counsel urged the Court to resolve issue 3 in favor of the Claimant and against the Defendants.

 

26.      On issue 4, learned Counsel submitted that the law is trite that termination or dismissal cannot be retrospective citing Underwater Eng. Co. Limited v. Dubefon (1995)6 NWLR (Pt. 400) 156 (SC) and that Claimant was dismissed by Exh. BA6 dated 16/11/15, received by the Claimant on 17/11/15 effective from 1/9/15. Counsel prayed the Court to hold that the retrospective dismissal was unlawful and null and void. Learned Counsel then urged the Court to grant all the reliefs sought by the Claimant.

 

5.        Decision

27.      I have read and clearly understood all the processes filed by learned Counsel on either side. I heard the testimonies of the witnesses called, watched their demeanor and carefully evaluated all the exhibits tendered and admitted at trial. Having done all this, I set the following issues down for the just determination of this case –

1.                 Whether the originating processes of the Claimant are valid as filed.

2.                 Whether the employment of the Claimant is one protected by the statute.

3.                 Whether the 1st Defendant complied with the procedure as contained in the Public Service Rules of Oyo State.

4.                 Whether Claimant is entitled to some or all the reliefs sought against the Defendants.

5.                 Whether the Defendants have proved their counter claims to be entitled to some or all of them.

28.      I start off the consideration of this case by an examination of the exhibits tendered and admitted at trial. Exh. C7 was not signed. Its author could not be determined. A document to be admissible must be signed. The rationale behind this rule is to determine both the source and the authenticity of the document upon which the Court is moved to act in resolving the issues and controversies at hand. Where a document as in the instant case is unsigned, there is a long line of judicial authorities to the effect that such a document has no evidential utility and is indeed a worthless piece of paper. See Haruna v. University of Agriculture Makurdi & Anor. (2004) LPELR-5899(CA). Exh. D1 on the other hand is undated. Again, the state of Exh. D1 raises the question as to when it was made. Was it made before or after the commencement of this case? If it was made after the commencement of this case, then it stands of no assistance to this case. See Visinoni v. Brahams & Anor.(2015) LPELR-40405(CA) The exhibit is undated. It is of no evidential weight. The same fate that be fell Exh. C7 also befalls Exh. D1. Both Exh. C7 & Exh. D1 are therefore discountenanced and are accordingly expunged from the records of this case.

 

29.      The first issue for determination is whether the originating processes of the Claimant are valid as filed. The consideration of this issue has become imperative taking cognizance of the quantum of energy invested by the learned Counsel to the Defendants. Counsel to the Defendants had urged the Court to hold both the General Form of Complaint as well as the Statement of Facts incompetent. The argument being that the former was signed by a non-existent individual while the latter though signed by a known individual was accompanied by an NBA Stamp of another person entirely. The argument of the Defendants here are rather two-prong. I take the first which was to the effect that the General Form of Complaint was signed by a non- existent person. I have perused the said process of the Claimant. I found as a fact the argument is bereft of truth. On page 3 of the record of this Court is the signature of the Counsel to the Claimant. Immediately after it is the following words –

 

“This Complaint was issued by Itorobong Michael Umoren Esq, (Legal Practitioner) of ABOPE Chambers, whose address for service is 6, Olukuewu Close, Off Liberty Road, Ibadan, agent for the said Claimant, OGUNJIMI BUSOLA ADEBISI, of Amukoko, Akanran Area, Ibadan, Oyo State”.

 

30.      In the light of the above revelation, can it be argued and correctly too that the Claimant’s Counsel who endorsed the General Form of Complaint is a non-existent individual? I answer in the negative.

 

31.      The second leg of the learned Counsel to the Defendants’ contention is that it was not the NBA Stamp of the Counsel who signed the Statement of Facts that was affixed to the process. Let me reiterate here that the argument is not that an NBA Stamp was not affixed as required. Now what is the state of the law respecting this issue?

 

32.      The Rules of Professional Conduct for Legal Practitioners, 2007 are germane here. It provides in Rules 10(1) thereof that –

 

"A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department or Ministry of any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association."

 

33.      The requirement of this Rule is affixing of an approved Stamp of the NBA. It appears to me that there is merit in the argument of the learned Counsel to the Claimant that indeed the Stamp required need not be that of the particular Counsel who endorsed the process. That was also the position taken by the Court of Appeal in Mainstreet Bank & Ors v. Hammed (2018) LPELR-45557(CA) relying on the decision of the Supreme Court in Senator Bello Sarakin Yaki (Rtd.) & Anor v. Senator Atiku Abubakar Bagudu & Ors. (2015) LPELR-25721 (SC) said thus -

 

“The import of this Rule when read together with Order 10 (2) & (3) of the Rules of Professional Conduct, 2007 is that documents and processes filed by a legal practitioner must bear the Nigerian Bar Association (NBA) approved stamp and seal of the legal practitioner, or of one of the legal practitioners listed on such document or process”.

 

34.      Counsel to the Defendants has not argued that the Stamp of the Nigerian Bar Association affixed to the said Statement of Facts is not one of a Legal Practitioner. I resolve this issue in favor of the Claimant and against the Defendants. I hold that the processes of the Claimant are validly filed and the jurisdiction of this Court to hear and determine this case is not in any way negatively affected for incompetence.

 

35.      The second issue for determination is whether the employment of the Claimant is one protected by the statute. Claimant is a relatively junior staff in the employment of the Defendants. Now is the status or grade level of an employee a determinant or an important determinant on whether the employment is one protected by the statute?

 

36.      Kekere Ekun JSC in Kwara State Judicial Service Commission & Ors v. Tolani (2019) LPELR-47539(SC) relying on C.B.N v. Igwillo (2007) 4-5 SC 154  at 172 brought to the fore the three main categories of contracts of employment that is (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavor. See also Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599.

 

37.      His lordship was to later explain an employment with statutory flavor to mean “when the employment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee”. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant. See also Imoloame v. WAEC (1992) 9 NWLR (Pt 265) 303 & Shitta-Bey v. University of Lagos (1981) 1 SC 40. Where the procedure for employment and discipline is clearly spelt out in the relevant statute, the employer is under an obligation to comply strictly with its provisions in dismissing its employee or terminating his employment. That was the purport of the decision in Comptroller General of Customs & Ors.  v. Gusau (2017) 4 SC (Pt.II) 128 and Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) 290. Now was the employment relationship between the parties in this case one created by the statute to take Claimant’s employment away from the confine of Master/Servant?

 

38.      By Exh. BA1, Claimant was employed by the 1st Defendant. That exhibit was titled or headed Offer of Appointment to the Pensionable Establishment. In its paragraph f the exhibit states that –

 

“That you will be subject in all respects to all conditions of service stipulated from time to time in General Order and other Government regulations and instructions”.

 

39.      In a Declaration the Claimant made along with Exh. BA2 she stated that she realized that failure to keep those promises contained in the Declaration would contravene the provisions of General Orders and would make her liable for prosecution under the Official Secrets Law, Cap. 85 and the Official Secrets Act, 162, No. 29 of 1962. On 17/9/15, Claimant was issued a letter of suspension, Exh. BA5, from work for 2 months in the first instance effective from the same day. That letter of suspension, Exh. BA5 was said to be in line with Section 46(2) of the Public Service Commission Regulation of 1978. Finally, the dismissal of the Claimant from the service of the 1st Defendant with effect from 1st September, 2015 was said to be “in line with Section 55(a) of the Public Service Commission Regulation of 1978”. Indeed, in the only Query ever issued to the Claimant (Exh. D2) dated 16/9/15 the paragraph 2 of same stated thus –

 

“As a result of this attitude of yours which amounts to serious misconduct punishable under the Public Service Rules, Vol. 1, Section 4 030402 (L) of January, 2013. …”.

 

40.      I have deliberately brought to the fore the contents of some of the exhibits tendered and admitted in this case. The intention is to bring to context the necessary intention of the employer of the Claimant. It is a clear and unambiguous intention of the employer of the Claimant that she would be bound by and subject to Government Regulations, General Orders and the Public Service Rules, Vol. 1, Section 4 030402 (L) of January, 2013 in particular. It is therefore not surprising that from the moment of her employment to the point of her dismissal from service all was done or allegedly done in accordance with the Public Service Rules of Oyo State. The Defendants made the Public Service Rules. Claimant had no input into same. Indeed, the Public Service Rules were more or less forced or foisted on the impoverished Claimant just like any other employees of the Defendants who had no choice than to comply with whatever the Defendants desired. Having therefore intended that the Claimant be bound by and subjected to the Public Service Rules, it is certainly not open to them to desire to resile from same.

 

41.      The intervention of the Public Service Rules in the instant has taken the case of the Claimant outside the purview of Master/Servant to the realm of an employment protected by the statute. Their Lordships of Ibadan Judicial Division of the Court of Appeal when confronted with a situation similar to this case in Busari v. Osun State Water Corporation & Anor. (2007) LPELR-9036(CA) held as follows -

 

“The defendants were the ones who first invoked the Civil Service Commission Regulations to suspend the plaintiff and they cannot now resile from that position by treating the contract as a mere servant and master relationship. If the defendants were convinced right from the start that the contract lacked any statutory flavour, they should have relieved him of his appointment without first subjecting him to any disciplinary measures. Since the plaintiffs appointment was confirmed and he was subsequently suspended from his employment in accordance with the Civil Service Regulations, the logical conclusion which can be drawn on the nature of his employment is that it was not an ordinary contract which could be terminated at will but must follow the laid down procedure as stipulated in the Civil Service Rules”.

 

42.      I hold that the combined reading of Exh. BA1, Exh. BA2, Exh. BA5 & Exh. D2 point to an irresistible conclusion that the employment of the Claimant is one with statutory flavor. I so hold. I thus resolve issue 2 in favor of the Claimant and against the Defendants.

 

43.      The third issue for determination is whether the 1st Defendant complied with the procedure enshrined in the Public Service Rules, Vol. 1, Section 4 030402 (L) of January, 2013 in dismissing Claimant from its employment. Section 4 of the Public Service Rules Vol. 1 of January 2013 deals with Serious Misconduct. Rule 030402(L) pursuant to which the Claimant was dismissed relates to Embezzlement. Rule 030403 provides that disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306.

44.      Under Rule 030302 a superior officer who is dissatisfied with the behavior of any of his/her subordinate is duty bound to inform the officer in writing of the unsatisfactory behavior and call on him to submit a written representation. If the written representation does not exculpate the subordinate officer and deserves some punishment, Rule 030304 shall apply.

 

45.      When the misconduct of an officer is brought to the notice of his superior officer, Rule 030304 directs that the latter must report it to the Permanent Secretary or Head of Extra-Ministerial and may recommend interdiction if he considers it necessary. The Permanent Secretary on receiving the report shall take action in accordance with Rule 030306 and if necessary interdict the officer and at the appropriate point in the investigation the officer concerned may be suspended in accordance with Rule 030405.

 

46.      Under Rule 030305 if it is represented to the Civil Service Commission that an Officer has been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceeding under Rule 030306, with a view to dismissal, it may cause an investigation to be made into the matter in such a manner as it considers proper and the Officer shall be entitled to know the whole case against him/her and shall have adequate opportunity of making his/her defence. If as a result, the Commission decides that the allegation is proved, it may inflict any other punishment upon the Officer such as reduction in rank, withholding or deferment of increment or otherwise.

 

47.      The procedure under the Public Service Rules of Oyo State is of two main layers. A Query is anticipated in Rule 030302 from the Superior Officer to the affected officer for a written representation on why a disciplinary action should not be taken against the Officer. Secondly, immediately after a Tribunal of Inquiry makes recommendation of a disciplinary nature on an officer, the Civil Service Commission shall not act on the recommendations until the affected officer is afforded an opportunity to reply to the allegations made against him as provided for under Rule 030303.

 

48.      The procedure adopted by the Defendants in dismissing the Claimant fell short of expectation within the meaning of the Public Service Rules relied on by the Defendants. It is most unfortunate, I will say, that the Defendants found it difficult to follow a rather simple disciplinary procedure they put in place for their employees. In the whole of this, I find no evidence of any Tribunal of Inquiry as required by the Rules. I find no evidence of a report made by Claimant’s superior officer to the Permanent Secretary/Head of Extra-Ministerial Department. These are just some of the important links that are missing in the case of the Defendants. The dismissal of the Claimant is contrary to the rules and procedure as laid down by the Defendants. Failure of the 1st Defendant to comply with and follow to the letters the rules is an unfair labour practice which this Court will not under guise condone. I resolve this issue in favor of the Claimant and against the Defendants. I hold that the 1st Defendant did not comply with the procedure enshrined in the Public Service Rules, Vol. 1, Section 4 030402 (L) of January, 2013 in dismissing Claimant from its employment.

 

49.      Having so found and so held, some consequential orders have become imperative. Ogakwu JCA in APC v. John & Ors.(2019) LPELR-47003(CA) citing Obayagbona vs. Obazee (1972) 5 SC 247 at 254-255, Fabiyi v. Adeniyi (2000) 6 NWLR (Pt 662) 532, Bogban vs. Diwhre (2005) 16 NWLR (Pt. 951) 274, Akpanudoedehe vs. Akpabio (2011) LPELR-4944 1 at 21 and Ankpa vs. Maikarfi (2008) LPELR-3776 1 at 52, explaining the meaning and purpose of a Consequential Order said –

 

“A consequential order is an order that naturally follows or flows from the decision of the Court and is meant to strengthen the relief claimed. A consequential order cannot properly be made to give a party entitlement to a relief that has not been established in his favour. The consequential orders have to necessarily follow upon the success of the relief sought”. 

 

50.      If therefore the reliefs already granted thus far in this case are to be meaningful, then these consequential orders are inevitable. Firstly, I declare that the dismissal of the Claimant by the 1st Defendant through the letter referenced BIR/Vol. 1l621l43 and dated 16/11/2015 but served on the Claimant on 17/11/2015 is illegal, unlawful, null void and of no effect, being contrary to the Civil Service Commission Regulations, Laws of Oyo State of Nigeria, 2000. Secondly, I declare that the dismissal of the Claimant is unreasonable, unjustifiable, mala fide and an unfair labour practice. Thirdly, I declare that the 1st Defendant’s letter dated 28l8l2015 with reference number BIR/Vol. IU50/325 promoting the Claimant remains valid and subsist. Fourthly, I here set aside 1st Defendant’s letter with reference number BIR/Vol. 621/43 dated 16/11/2015, through which the Claimant was dismissed as Clerical Officer GL. 04. An order of reinstatement becomes inevitable in a matter and circumstances as the present case. Thus the Claimant is here reinstated as Clerical Officer GL. 04 to the Pensionable establishment of the Board of Internal Revenue, without any loss of employment rights, including promotion. I further order and direct the Defendants to pay to the Claimant all her arrears of salaries plus allowances from 1st September 2015 till the date of this Judgment.

 

51.      The fourth issue for determination is whether Claimant is entitled to some or all the reliefs sought against the Defendants. Claimant sought 10 reliefs against the Defendants. I have in the course of this Judgment disposed off the first 6 reliefs as sought. The 7th relief sought is for an Order for the payment of all earned backlogs of salaries and allowances amounting to =N=235,967.00 (Two Hundred and Thirty Five Thousand, Nine Hundred and Sixty Seven Naira). The sum claimed was said to comprise =N=114,323.20 as arrears of salaries from September 2015 to January 2016 at the rate of =N=22,864.64 per month; =N=26,400 as annual leave bonus for the year 2014 and 2015 at the rate of =N=13,200 per month and =N=95,244.00 at the rate of =N=3,968.5 per month for 24 months for the period December 2014 till January 2016 being share of between 3% and 5% of revenue generated (also called cost of collection) by the 1st Defendant, on the conventional average of between =N=3,000 to =N=5,000 per month, depending on what is arbitrarily declared by the 1st Defendant. Unfortunately, Exh. C8 bears no bearing to any of these heads of claim.

 

52.      How did the Claimant come about all these figures? For instant where and in which document was figure for annual leave bonus stated? Where is the document evidencing the claim for share of between 3% and 5% of the revenue generated by the 1st Defendant as cost of collection? In much the same vein, there is no evidence before me of the actual monthly salary of the Claimant. Thus how and where Claimant came across the claim of the sum of =N=22,864.64 as her monthly salary remains unclear to me.

 

53.      In her evidence in chief, Claimant had averred that the entries against 16/3/15, 10/4/15 and 8/7/15 in her GTB Bank statement showed the average amount she earned monthly referred to as NEFT TRANSFER after deduction of her Co-operative monthly contribution and Car loan. The document referred to here is Exh. C8. That exhibit has no iota of nexus to this head of claim. It is not for a Court of law to venture into the realm of speculation. I have no choice than to refuse and dismiss this claim for lack of proof.

 

54.      The next relief which is for an Order for the payment of 10 percent interest per annum on unpaid salaries and allowance from September 2015 till the determination of this suit is not in any way supported by the evidence led. Thus I refuse and also dismiss same.

 

55.      Claimant also sought payment to her of General Damages against the Defendants for wrongful and unlawful dismissal of the Claimant in the sum of =N=1,000,000.00 (One Million Naira Only). This Court has found for the Claimant having held that her dismissal is null and void. The Court has also ordered payment to her of all her outstanding salaries as well as reinstatement to her office. To further award general damages or any form of damages will amount double compensation. I accordingly refuse and dismiss this head of claim.

 

56.      Cost, it is said, follows event. The 1st Defendant is ordered to bear the cost of this proceedings assessed at =N=200,000.00 and pay same to the Claimant.

 

57.      The final issue for determination is whether the Defendants have proved their counter claims to be entitled to some or all of them. The Defendants sought 4 counterclaims. The first is for a declaration that the dismissal of the Claimant by the 1st Defendant through letter referenced BIR/VOL. 1/62:1./ 43 dated 16/11/15 is valid and lawful. Taking cognizance of the reliefs already granted to the Claimant, I find no merit in this relief. I dismiss it accordingly.

 

58.      The second counterclaim is for an order for payment of the sum of =N=454,234.00 (Four Hundred and Fifty Four Thousand, Two Hundred and Thirty Four Naira). In support of the evidence in chief of their witness respecting this counterclaim, the Defendants tendered Exh. D2, Exh. D3, Exh. D4 & Exh. D5. While Exh. D2 & Exh. D3 put the sum allegedly embezzled by the Claimant to be the sum of =N=202,726,721.57, Exh. D4 & Exh. D5 however stated that the sum involved was =N=454,234.00. Surprisingly, all the 4 exhibits were unanimous as to the period covered to between January, 2013 and February, 2015. The evidence led by the Defendants is conflicting. On what basis should this Court prefer or believe the contents of Exh. D4 & Exh. D5 instead of Exh. D2 & Exh. D3?  

 

59.      A counter claim is akin to a separate and independent suit of its own. It is the duty of a counterclaimant to adduce cogent, credible and admissible evidence in proof of its counter claim in order to be granted same. See  Hassan v. Bunu & Anor. (2019) LPELR-47746(CA). The Defendants have failed to adduce sufficient evidence in proof of this counter claim. Same is therefore refused and dismissed. As a follow up to this, the third counter claim which is for an Order for the payment of 10 percent interest of the said indebtedness pending the determination of this suit is accordingly refused and dismissed. All the heads of counter claims having been refused and dismissed the claim for general damages against the Claimant for gross misconduct and failure to remit outstanding indebtedness within the stipulated 3 months is equally refused and dismissed.

6.                 Conclusion

60.      Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment -

1.     I hold that the processes of the Claimant are validly filed and the jurisdiction of this Court to hear and determine this case is not in any way negatively affected for incompetence.

2.     I hold that the combined reading of Exh. BA1, Exh. BA2, Exh. BA5 & Exh. D2 point to an irresistible conclusion that the employment of the Claimant is one with statutory flavor.

3.     I hold that the 1st Defendant did not comply with the procedure enshrined in the Public Service Rules, Vol. 1, Section 4 030402 (L) of January, 2013 in dismissing Claimant from its employment.

4.     I declare that the dismissal of the Claimant by the 1st Defendant through the letter referenced BIR/Vol. 1l621l43 and dated 16/11/2015 but served on the Claimant on 17/11/2015 is illegal, unlawful, null void and of no effect, being contrary to the Civil Service Commission Regulations, Laws of Oyo State of Nigeria, 2000.

5.     I declare that the dismissal of the Claimant is unreasonable, unjustifiable, mala fide and an unfair labour practice.

6.     I declare that the 1st Defendant’s letter dated 28/8/15 with reference number BIR/Vol. IU50/325 promoting the Claimant remains valid and subsist.

7.     I here set aside 1st Defendant’s letter with reference number BIR/Vol. 621/43 dated 16/11/2015, through which the Claimant was dismissed as Clerical Officer GL. 04.

8.     I reinstate and order immediate reinstatement of the Claimant as Clerical Officer GL. 04 to the pensionable establishment of the Board of Internal Revenue, without any loss of employment rights, including promotion.

9.     I order and direct the 1st Defendant to pay to the Claimant all her arrears of salaries plus allowances from 1st September 2015 till the date of this Judgment.

10.                       Reliefs 7, 8 & 9 are refused and dismissed for lack of proof by cogent, credible and admissible evidence.

11.                       The 1st Defendant is ordered to bear the cost of this proceedings assessed at =N=200,000.00 and pay same to the Claimant.

12.                       All the heads of counter claims sought are refused and dismissed for lack of proof by credible evidence.

61.      All the terms of this Judgment are to be complied with immediately.

62.      Judgment is entered accordingly.

 

 

___________________

Hon. Justice J. D. Peters

Presiding Judge