IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 8th May 2024                                                

SUIT NO: NICN/ABJ/164/2022

 

Between:

 

Ebute Christopher                                                                        -                                   Claimant

 

And

 

1.     Nigerian Correctional Service

2.     The Controller General of Corrections                                                    Defendants 

 

Representation:

Ani Patrick Chikezie for the Claimant

AbdulHamid Zakari for the Defendants

 

JUDGMENT

The claimant instituted this suit on 27th May 2022 and his claims are as follows:

1.         A Declaration that the purported dismissal of the Claimant from the service of the 1st defendant as published in the 2nd Defendant's Radio Message Ref. No. NCOS: 948/H/S.25/VOL.IV/100 dated 28th day of March, 2022, and purported to have taken effect on the 1st day of March, 2022, is invalid, null and void and of no effect whatsoever and howsoever, in so far as, the actions of the Defendants in dismissing the claimant and the procedure adopted thereof, contravene section 36, CAP 3 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Public Service Rules (2008) (CAP 3, Sections 3 and 4), as well as, the Guidelines for Appointment, Promotion, Discipline and General Purposes (Parts V and VI).

2.         An Order of mandatory injunction directing the Defendants to reinstate into the service, promote and place the Claimant in the same or similar rank or position with his colleagues who are still in the service and which he would have been, but for the purported dismissal.

3.         An Order directing the Defendants to pay the Claimant forthwith all his arrears of salary, other entitlements and benefits from the 1/3/22 till judgment and restore him to be at par in terms of rank, remuneration and other benefits with his mates prior to the purported dismissal.

4.         An Order of perpetual injunction restraining the Defendants whether by themselves, servants, agents and/or privies from further acting on or implementing/effecting, in any manner whatsoever and howsoever, the contents of the Radio Message Ref. No. 948/H/S.25/VOL.IV/100 dated 28th day of March, 2022, in so far as it concerns or relates to this Claimant.

5.         The sum of N5,000,000 only, being general, aggravated and exemplary damages for the breach of the claimant's contract of service, public disgrace, frustration, embarrassment and emotional trauma suffered by the Claimant on account of his purported dismissal.

6.         Cost of this suit at N800,000 only.

 

The claimant introduced the 1st Defendant as a body established under the Nigerian Correctional Service Act with the responsibility of providing custodial and non-custodial services nationwide while the 2nd Defendant is the Chief Executive Officer and the Administrative Head in charge of the 1st defendant.

 

CASE OF THE CLAIMANT

The case of the claimant is that he was employed by the 1st defendant as a Prison Assistant III on HAPPSS 02 vide a letter of appointment with Reference No. PF 43624/Vol.1/9 dated 20/9/2001. He was placed on a probationary period of two years after which his appointment was confirmed by the Defendants. His employment is with statutory flavour and it is regulated by the current Public Service Rules. He said his employment, promotion and discipline is regulated by the Guidelines for Appointment, Promotion, Discipline and General Purposes issued and in use by the Civil Defence, Fire, Correctional and Immigration Services Board which is the supervisory Agency in charge of the defendants. Upon his appointment, he worked in several Custodial Centers and State/Zonal Headquarters and earned a number of promotions in recognition of his industry and loyalty. His last promotion was to the rank of a Senior Inspector of Corrections (Prisons) on CONPASS 8 effective from 1st January 2018 as released by Civil Defence, Fire, Immigration and Prisons Services Board in a letter Ref. No: CDFIPB/S.004/V11/158 dated 10/06/19 and conveyed by the Defendants Radio Message Ref. No. GEN 24/S.21/T2/VOL.111/434 dated 11th June 2019. The list of the successful officers within CONPASS 7-15 in all the Services supervised by the Civil Defence, Fire, Immigration and Prisons Services Board were attached to the Radio Message. The claimant’s names and particulars appeared in the list as having been promoted from the rank of Inspector of Prisons/Corrections to the rank of Senior Inspector of Prisons/Corrections. Sometimes in 2020, the Civil Defence, Fire, Immigration and Prisons Services Board took a decision and published a circular with Reference No. CDCFIB/1001/Vol.1/110 dated 18/11/2020 to all the states and commands under the Defendants through the defendants' letter Ref. No. NCS.115/S.38/Vol.T/90 dated the 24th November, 2020. By virtue of this circular, the claimant’s designation, rank or portfolio changed from Senior Inspector of Corrections to an Assistant Superintendent of Corrections effective from 1st January 2018, being the date of his last promotion.

 

In the course of his service, he had several postings and transfers but his last transfer was in April 2019 when he was transferred from Enugu Custodial Centre, Enugu State to Benin Custodial Centre and later to Agbor Custodial Centre, Delta State where he remained from 2020 to date without any blemish, query or reprimand. But suddenly and surprisingly, he was dismissed through a Radio Message Ref. No. 948/H/S.25/VOL.IV/100 dated 28th March 2022 and signed by the Controller of Corrections in charge of discipline/Provost Marshal. The Radio Message was made available to all officers and men of the 1st defendant nationwide. The claimant asserted that he had not committed any offence and had never been queried for any disciplinary offence by the Board or any other appropriate authority for any disciplinary offence prior to the dismissal radio message. The claimant stated further that the Controller General of the Nigerian Correctional Service or any subordinate officer under his command lacks the power or authority to discipline a senior officer like him and that such act was contrary to the extant rules and regulations governing his kind of employment. Even if he committed any offence, he was not given any opportunity to defend himself and or cross examine the witnesses against him. For these reasons, the actions of the defendants constitute gross abuse of his right to fair hearing and breach of the terms of his contract of employment.

 

The claimant stated further that since his last promotion took effect from the 1st January 2018, the only institution or authority vested with the powers to discipline him, is the Civil Defence, Fire, Correctional and the Immigration Services Board. He could recall that the only time he was ever accused of wrong doing since he started his career was at Enugu Custodial Centre where he was falsely and maliciously accused and charged with an offence of trafficking in some weeds suspected to be Indian hemp. He was falsely accused based on the conspiracy of some management staff of Enugu Custodial Centre for which he was later charged with the offence of trafficking in weeds suspected to be Indian hemp. In view of the charge against him, he submitted himself to an orderly room trial procedure but soon discovered that the panel of adjudicators constituted by the DCC (officer in charge Enugu Prison) to try him were persons who bear strong animosity and hatred against him. They included the Prosecutor, Ekpa Jacob (SIP), and the Keeper, Michael Obi. The claimant proceeded to narrate the disputes he had with these officers.  At the commencement of his orderly room trial, he was harassed, intimidated and was not allowed to say anything other than what the panel wanted him say. He was also not allowed to cross examine any witness.

 

When he observed that the panel was hell bent on persecuting him, he objected to the composition of the panel. When he objected, the DDC in charge of Enugu Custodial Centre ordered the claimant to be detained for daring to exercise his right of objection to the composition of the panel. The claimant said he was detained without food and water. He said it was during the time he was passing through this ordeal in the Enugu Custodial Centre Enugu that his promotion to the rank of Senior Inspector of Corrections was released but the promotion was not disclosed to him and he was not decorated with the new rank along with his counterparts in Enugu. This was the state of affairs until he was transferred from Enugu to Benin Custodial Centre, Benin, Edo State. No new committee was set up to try him and he was not given any opportunity to complete the trial before proceeding on transfer to Edo State. He said the defendants ought to have concluded the orderly room trial procedure before releasing him to proceed on transfer. His release on transfer without completing the orderly room procedure constitutes a waiver or abandonment of the charge and trial. He said it was at Benin he was eventually and informed of his new rank of Senior Inspector of Corrections and he was decorated with same.

 

The claimant stated further that the allegation of his involvement in trafficking in weeds suspected to be Indian hemp is criminal in nature and was concocted by Ekpa Jacob but they failed to report the case to NDLEA or the Police or take the matter before any court of competent jurisdiction. There is no basis for his dismissal which action was fraught with malice and was executed malafide against him in breach of his fundamental human rights, the Public Service Rules and the Guidelines for appointment, promotion and discipline of officers in the Public Service of the Federation. When he discovered that his name was among the list of dismissed officers published by the defendants, he contacted his counsel who wrote a Pre-action Notice, dated the 11th April 2022 and served on the defendants on the 12th April, 2022. He instituted this suit when it became obvious that the Defendants were not ready to appropriately address his case.  His Counsel charged him N800,000 as legal fee, which he paid and a receipt was issued to him.

 

The claimant tendered 9 documents in evidence which were admitted in evidence and marked Exhibits A, B, C, D, E, F, G, H and J. In cross examination, the claimant said he was accused and charged for an offence of trafficking in weed suspected to be Indian hemp. He was not tried at the panel. He raised objection to the constitution of the panel but he was detained. The medical report from ESUT was submitted to his officer in charge but it was not in respect of this case. At the time of his investigation, he was a junior staff and the 2nd defendant has the right to sack him. The zonal disciplinary committee has the power to review but they ought to have called him for hearing.

 

DEFENCE OF THE DEFENDANTS

The defendants filed a statement of defence to the suit on 16th June 2022 and called one witness who is Ezugwu Faustinus Ikechukwu. The witness said he was the adjudication officer who tried the case of the claimant on 11th October 2018 together with the prosecution officer, Stanley Okeze. The case of the defendants is that the claimant was found guilty for the offence of trafficking in Indian hemp at the gate lodge of the prisons yard at the Enugu Custodial Center. Bringing Indian hemp in to the prisons yard is an offence against the prisons regulations and the claimant is fully aware of this. The claimant was properly tried by the adjudication panel headed by DW1 as the adjudication officer and one Stanley Okeze who serve as the prosecutor. The claimant was given fair hearing as he was issued with form 96, as required by the Prisons Act after investigation in accordance to his Rank as a junior officer, which was Inspector of Prisons. The claimant completed the form 96 wherein he pleaded not guilty. On the day of the adjudication, the charge was read to the claimant and he pleaded not guilty to the charge. The prosecutor thereafter made his statement and presented his case. The claimant was given ample opportunity to cross examine the prosecutor and he asked series of questions as can be seen from the adjudication proceedings report. The claimant was given opportunity to defend himself, he defended himself and at the end of his defense, he was cross examined by the prosecutor. In the course of the cross examination of the claimant, he admitted to have committed the offence of trafficking in Indian Hemp which was discovered in his pocket at the prison gate and he said he was using it as medicine to cure migraine. During the trial also, the claimant tendered a Medical Report from ESUT Teaching Hospital Enugu to show that he was sick. At the end of the trial, DW1 said he found the claimant guilty of the offence of trafficking in Indian hemp and the claimant pleaded for leniency. DW1 said he made his recommendation and forwarded it to the higher authority who reviewed the claimant's case and the Zonal Disciplinary Committee recommended the claimant’s dismissal. The recommendation was approved by the Controller General and it was communicated to the Claimant.

 

The 2nd defendant has the power to dismiss the claimant. The offence of trafficking is an offence under the Nigerian Correctional Service Act and the 2nd defendant has the mandate to try the claimant for such offence. Again, the trial of the claimant was commenced and completed before the release of the claimant's promotion. The circular for harmonization of rank from the Civil Defence, Immigration, Fire Service and Prisons Board came on 11th June 2019 and 24th November 2022. The charge sheet for the claimant’s trial was issued on 6th August, 2018, and the trial took place on 11th October, 2018. As a result, the claimant was not a senior officer as at the time he committed the offence. The claimant’s promotion was released long after his trial. There was no need to constitute a new panel as the panel earlier constituted has completed its work and submitted its report. There was strong evidence that the claimant committed the offence and he was given fair hearing in his trial.

 

DW1 tendered 6 documents in evidence. They are marked Exhibits NCS1, NCS2, NCS3, NCS4, NCS5 and NCS6. In cross examination, DW1 said his rank is Chief Superintendent of Correction. As at April 2018, his rank was Superintendent of Correction. Adjudication process begins with query or form 96. The process ends with a verdict being issued. Possession or trafficking in Indian hemp is a criminal offence. The claimant was tried for bringing substance suspected to be Indian hemp into the prison and he was caught. There are institutions responsible for arresting and prosecuting offenders suspected to be trafficking or being in possession of narcotics. The 1st defendant is empowered to try such cases internally. The claimant’s trial started on 11th October 2018 and Exhibits F, G, H and J were used for the trial of the claimant. He was directed to try the claimant and he did. When an officer is given form 96, he signs it. Exhibit NCS2 is form 96 but the claimant did not sign on the face. The claimant’s response to Exhibit NCS2 is Exhibit NCS3 which he signed. The 2nd defendant has full powers to dismiss the claimant. The signature on NCS2 and NCS 3 are not the same.

 

I have read the various final written addresses of counsels. I do not see any reason to rehash their contents here. However, arguments proffered by counsels in their respective written addresses were duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment.

 

DECISION

The claimant was employed by the 1st defendant on 20th September 2001 and dismissed from the employment with effect from 1st March 2022. The claimant’s appointment letter is Exhibit A while the Radio Message dated 28th March 2022 conveying the approval of the 2nd defendant for the claimant’s dismissal is Exhibit E. The claimant is aggrieved with his dismissal and for that reason he sought this court, in relief 1 of his claims, to declare that his dismissal from the service of the 1st defendant is invalid, null and void and of no effect. The issue I will consider therefore is whether the claimant has proved this declaration sought as to be entitled to all the reliefs he sought in the suit.

 

In paragraphs 2, 6, 7 and 8 of his statement of facts, the claimant pleaded that the  1st Defendant is established under the Nigerian Correctional Service Act and that his employment with the 1st defendant is regulated by the Public Service Rules. For this reason, the claimant said his employment is with statutory flavour. He also averred that his employment, promotion and discipline is regulated by the Guidelines for Appointment, Promotion, Discipline and General Purposes issued by the Civil Defence, Fire, Correctional and Immigration Services Board. He averred further that disciplinary procedure is set out in the PSR and it is the same as the disciplinary procedure set out in Parts V and VI of the Guidelines for Appointment, Promotion, Discipline and General Purposes issued by the Civil Defence, Fire, Correctional and Immigration Services Board. The claimant stated these facts in his evidence and proceeded to tender in evidence the Nigerian Correctional Service Act 2019, the Public Service Rules 2008 Edition and Guidelines for Appointment, Promotion, Discipline and General Purposes issued by the Civil Defence, Fire, Correctional and Immigration Services Board. These are Exhibits H, F and J respectively. The defendants admitted the averments in paragraphs 2, 6, 7 and 8 of the statement of facts.

 

It is therefore not in dispute that the claimant’s employment with the defendant was regulated by the Nigerian Correctional Service Act, the Public Service Rules and Guidelines for Appointment, Promotion, Discipline and General Purposes issued by the Civil Defence, Fire, Correctional and Immigration Services Board. In view of the applicability of the PSR to the claimant’s employment with the 1st defendant, the claimant was correct to aver that his employment was one with statuary flavor. Judicial authorities have settled the fact that employments regulated by the PSR are employments with statutory flavour or employment protected by statute. See

FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA vs. MAIWUYA (2013) All FWLR (Pt. 677) 753 at 762; IDERIMA vs. R.S.C.S.C. [2005] 16 NWLR [Pt. 951] 378; NAWA vs. ATTORNEY-GENERAL, CROSS RIVER STATE [2008] All FWLR [Pt. 401] 807 at 828.

 

The claimant made several complaints in his evidence as the reason he sought the court to declare that his dismissal was unlawful, null and void. One of his complaints is that the allegation of his involvement in trafficking in weeds suspected to be Indian hemp is criminal in nature but the defendants failed to report the case to the NDLEA or the Police or take the matter before any court of competent jurisdiction. In the final written address of the claimant, it was submitted that the offence alleged against the claimant for which he was dismissed, that is trafficking in or being in possession of weeds suspected to be Indian hemp, is a criminal offence under the Nigerian Law and the defendants do not have the powers to prosecute and dismiss the claimant for the offence. Counsel further submitted that by the provisions of the Nigerian Correctional Services Act 2019 and the Nigerian Prisons Service Standing Order 2011, the defendants are expected to report criminal offences, of the nature alleged against the claimant, to the police for appropriate action. It was concluded by counsel that the defendants lack the jurisdiction to try the claimant for the offence trafficking in or being in possession of substance suspected to be Indian hemp and to punish him for the offence by dismissal.

 

In the statement of defence, the defendants averred that the offence of trafficking is an offence under the Nigerian Correctional Service Act and the 2nd defendant has the mandate to try the claimant for such offence. Counsel for the defendant submitted in the written address that with respect to taking criminal matters to the police, Section 623 of the Standing Order used the word “may”. Counsel submitted that the provision means that the defendants can either deal with the offence internally or refer it to the police.

 

The evidence of the claimant reveals that the allegation against him was the offence of trafficking in weeds suspected to be Indian hemp. The Radio Message for his dismissal, Exhibit E, shows that he was dismissed for the offences of trafficking with Indian hemp and disobedience to lawful order. These allegations in Exhibit E are in consonance with the charges made against the claimant in Exhibit NCS2. The charge alleged the claimant was caught with substance suspected to be Indian hemp and disobedience to lawful order by entering the prison gate with items suspected to be Indian hemp despite warning from officer in charge of Enugu Prison. In view of Exhibits E and NCS2, the same allegation of trafficking in Indian hemp was made against the claimant for which he was tried and dismissed.

 

Whether the claimant’s complaint that the defendants lack the powers to try him and punish him for the criminal offence of trafficking or being in possession of Indian hemp has merit or not depends on whether the offence of trafficking or being in possession of Indian hemp is a pure criminal offence subject only to prosecution in a competent court or it constitutes an internal offence or misconduct which can be dealt with as a disciplinary matter.

 

In his argument in respect of this aspect of the claimant’s case, learned Counsel for the claimant relied on the NCS Act 2019 and Nigerian Prisons Service Standing Order 2011. Both were tendered in evidence by the claimant and marked Exhibits H and G respectively. The NCS Act 2019 was enacted in 2019 meanwhile the claimant was alleged to have committed the offence and tried for same in 2018. The NCS Act was not the operative statute at the time the offence was allegedly committed by the claimant. It cannot therefore be used to determine whether at the material time, the alleged act constituted an offence and whether the defendants have power to try the offence or not. Furthermore, the claimant did not plead the Standing Orders or rely on it anywhere in his evidence as one of the conditions of service regulating his employment. He also did not state anywhere in his case that any provisions of the Standing Orders was breached in his dismissal. His allegations in this case against his dismissal were based principally on alleged breach of the provisions of the Constitution, the PSR and the Guidelines for Appointment, Promotion, Discipline and General Purposes issued by the Civil Defence, Fire, Correctional and Immigration Services Board. This fact is also clearly shown in relief 1 sought by the claimant. Counsel for the claimant introduced the Standing Orders into the case of the claimant for the first time in the final written address. Parties and the court are bound by the pleadings of the parties. Not having made out any case on the provisions of the Standing Orders, either in the pleadings or oral evidence, this court cannot deviate to consider any part of the content of the Standing Orders in determining the case of the claimant.

 

I will however take judicial notice of the fact that the Act which established the 1st defendant and regulated its activities before the 2019 Act was the Prisons Act 2004. This was the Act that was repealed by the NCS Act 2019. In effect, the Prisons Act 2004 was in operation until repealed by the NCS Act 2019 which came into force in July 2019. It is also observed that in the charge in Exhibit NCS 2, the claimant was accused of committing offences contrary to Sections 14[a] and 82[N] of the Prisons Act 2004 and punishable under Section 83 of the Act. Thus, the claimant was charged and tried under the Prisons Act 2004. Accordingly, the necessary statute to be examined to find whether the defendants could try the claimant for the alleged offences at the time is the Prison Act 2004.

 

Section 14[1] of the Act, which is one of the sections under which the claimant was charged in Exhibit NCS2, described some acts which constitute offences under the Act and provide that any person who does any of the acts shall be guilty of an offence and on conviction shall be liable to a fine not exceeding N400 or to imprisonment for a period not exceeding twelve months, or to both. One of the acts in subsection 1[a] is any person who brings, throws or otherwise introduces into or removes from a prison, or gives to or takes from a prisoner, any alcoholic liquor, tobacco, intoxicating or poisonous drug or article prohibited by regulations made under the Act”. This section created criminal offences and the punishment for any of the offences, upon conviction, is fine or term of imprisonment or both. Let me mention that this provision is not different from the provision in Section 29[1]a] and [2]a] of the NCS Act 2019. See also Section 20[1]c] of the NDLEA Act which makes possession of any narcotic drug or psychotropic substance a criminal offence punishable on conviction to a term of imprisonment extending to 25 years.

 

In view of the provisions of Section 14[1]a] of the Prisons Act, to bring into a prison any intoxicating substance or drug or any article prohibited by regulations, is a criminal offence which is subject to criminal prosecution in a competent court of law that can convict and impose any of the stipulated punishments. To have charged the claimant for an offence under Section 14[1] of the Prisons Act means that the allegations of trafficking or being in possession of Indian hemp made against the claimant fell within the acts constituting an offence in the section. The offence of trafficking or being in possession of Indian hemp is not a misconduct or serious misconduct in either the PSR or the Guidelines for Appointment, Promotion, Discipline and General Purposes which can be treated under the internal disciplinary procedure applicable to officers of the 1st defendant.

 

Clearly, the 1st defendant is not a court of law and, by the provisions of Section 14[1] of the Prisons Act 2004, it does not have the jurisdiction to convict any person for any of the offences in Section 14[1] or to impose any of the punishments provided in the section. Therefore, the defendants lacked the jurisdiction to have charged the claimant for a criminal offence under Section 14[1] of the Prisons Act 2004 and then proceeded to try him in an orderly room trial and punish him for the criminal offence. Only a court of law with criminal jurisdiction has the powers to entertain a charge under Section 14[1] of the Prisons Act against the claimant and punish him accordingly upon conviction. 

 

Although the charge in Exhibit NCS2 further contains that the claimant was committed other offences contrary to Sections 82 of the Prisons Act and punishable under Section 83, it is observed that the Prisons Act 2004 stopped at Section 20. It does not have sections running up to 82 or 83. The implication is that the claimant was charged and tried by the defendants for an offence not provided for or contained in the law under which he was charged and he was given a punishment not provided for by law.

 

Without any doubt, I agree with the counsel for the claimant that the defendants lack the powers or authority to try the claimant and punish him with dismissal for the criminal offence alleged against him for which he was never subjected to criminal prosecution in court and convicted.  This is more so that the defendants failed to show that the offence of trafficking or being in possession of Indian hemp is termed a misconduct or gross misconduct in any of the condition of service which they can deal through the internal disciplinary procedure.

 

In Rule 030401 and 030402 of the PSR, conviction on a criminal charge is one of the conducts considered gross misconduct which can lead to dismissal of a staff. That is to say it is after the conviction of the staff for the criminal offence that the conviction becomes a gross misconduct that can lead to dismissal. By virtue of these Rules of the PSR, an employer cannot straightaway dismiss a staff for criminal offence which has not been prosecuted, proved and a conviction handed to the staff.

 

The claimant also complained of denial of fair hearing in his trial for the criminal offence by the adjudicator and non-compliance with disciplinary procedure by the adjudicator. The claimant said in his evidence that when he was later charged with the offence of trafficking in weeds suspected to be Indian hemp, he submitted himself to an orderly room trial procedure but he was not given any opportunity to defend himself and/or cross examine the witnesses against him. He also alleged bias against the panel of adjudicators and that his dismissal was done in breach of his fundamental human rights, the Public Service Rules and the Guidelines for appointment, promotion and discipline of officers in the Public Service of the Federation. I have held in this judgment that the defendants lacked the powers to charge the claimant for a criminal offence, try him for the offence and punish him with dismissal for the criminal offence. The consequence is that the orderly room trial they subjected the claimant to and all the steps premised thereon, including the punishment of dismissal based on the trial, are null and void. Therefore, it is pointless and a waste of time to proceed to consider the merits of the claimant’s allegation of denial of fair hearing or breach of procedure in the trial.

 

There is another issue raised by the claimant as to the proper authority to discipline him. This is also one of the reasons the claimant sought to have his dismissal nullified. I will briefly comment on this aspect of the case.

 

Exhibit E is the Radio Message communicating the claimant’s dismissal. From the content of the Exhibit, the approval for the claimant’s dismissal was taken by the 2nd defendant. For this reason, the claimant contended that the Controller General of the Nigerian Correctional Service or any subordinate officer under his command lacks the power or authority to discipline a senior officer like him. He also stated that since his last promotion took effect from the 1st January 2018, the only institution or authority vested with the powers to discipline him, is the Civil Defence, Fire, Correctional and the Immigration Services Board. In other words, it is the claimant’s case that at the time of his dismissal, he was a senior officer who cannot be disciplined by the 2nd defendant or any subordinate officer to the 2nd defendant but by the Civil Defence, Fire, Correctional and the Immigration Services Board only. The defendants denied these averments of the claimant and averred in reply that the 2nd defendant has the power to dismiss the claimant. According to the defendants, the claimant was not a senior officer as at the time he committed the offence and that the trial of the claimant was commenced and completed before the release of the claimant's promotion. The circular for harmonization of rank from the Civil Defence, Immigration, Fire Service and Prisons Board came on 11th June 2019 and 24th November 2022 but the charge sheet for the claimant’s trial was issued on 6th August 2018 and the trial took place on 11th October 2018.

 

The issue raised by the claimant in this aspect of his case is who had the power to discipline or dismiss him between the 2nd defendant and the Board. From the evidence of the parties, it is clear that as a junior officer, the 2nd defendant can discipline him but as a senior officer, it is only the Board that can discipline him. This was confirmed in the written address of the claimant where it was submitted that by virtue of Part 1[1] of the Guidelines for Appointment, Promotion, Discipline and General Purposes issued by the Civil Defence, Fire, Correctional and Immigration Services Board, the ultimate disciplinary authority is the Board who may delegate same to the 2nd defendant with respect to officers on CONPASS 07 and below.

 

This is where the claimant brought up the issue of his promotion and rank to show that he was a senior officer at the time of the disciplinary action and dismissal by the 2nd defendant. In his evidence, the claimant said he was employed on 20th September 2001 as a Prison Assistant III on HAPPSS 02. He earned promotions in the employment and the last promotion was from Inspector of Corrections to the rank of a Senior Inspector of Corrections on CONPASS 8 effective from 1st January 2018 as conveyed in the defendants Radio Message dated 11th June 2019. This Radio Message is Exhibit C. I have seen the list attached to the Radio message which the claimant said is the list of the successful officers promoted within CONPASS 7-15. The attached list is blurry, faint and not readable. It is difficult to ascertain the name of the claimant and the effective date of the promotion on the list. The claimant did say that it was during the time he was undergoing trial in Enugu Custodial Centre Enugu that his promotion to the rank of Senior Inspector of Corrections was released but it was when he was transferred to Benin that he was informed of his new rank of Senior Inspector of Corrections [CONPASS 8] and he was decorated with same.

 

The claimant also said in 2020, the Civil Defence, Fire, Immigration and Prisons Services Board took a decision and published a circular dated 18/11/2020 to all the states and commands under the Defendants through the defendants' letter dated 24th November 2020. The claimant said by virtue of this circular, his designation or rank changed from Senior Inspector of Corrections to Assistant Superintendent of Corrections effective from 1st January 2018, being the date of his last promotion. I have also seen and read this circular. It is Exhibit D. The circular does not contain or suggest the promotion or the change of the claimant’s rank to Assistant Superintendent of Corrections, whether effective from 1st January 2018 or the date of the circular, as alleged by the claimant. The relevant portion of the circular is paragraph (ii) hereof where it was announced that: “In line with the circular, all the Inspectorate Ranks from Senior Inspector of Corrections to Chief Inspector of Corrections 1 are hereby abolished and all officers on those ranks will be converted to superintendent ranks. However, the Services Board and the Nigerian Correctional Services Team will meet to work out individual’s level of conversion, seniority and effective date.” By this content of the circular, there was an intention to convert Inspectorate Ranks to superintendent ranks. Before that can be done, the “Board and the Nigerian Correctional Services Team will meet to work out individual’s level of conversion, seniority and effective date”. Without a doubt, the circular did not convert or change the claimant’s rank to Assistant Superintendent of Corrections. The claimant did not also produce any other document in evidence where his rank was converted or changed to Assistant Superintendent of Corrections any time after Exhibit D was issued.  As far as Exhibit D is concerned, it does not have the effect the claimant tried to put on it in this case. The claimant’s designation or rank was not changed from Senior Inspector of Corrections to Assistant Superintendent of Corrections at any time in the circular.

 

From the evidence of the claimant and the exhibits he produced, I find that his last rank before his dismissal was Senior Inspector of Corrections and this rank was officially released and conveyed vide the Radio message dated 11th June 2019. Prior to this time, his rank was Inspector of Corrections.  Now, the claimant was alleged to have committed the offences for which he was dismissed on 4th August 2018. See Exhibit NCS2, which is the charge against the claimant. It is dated 6th August 2018. The claimant admitted that he was accused of trafficking in some weed suspected to be Indian hemp and he faced orderly room trial. The defendants pleaded the adjudication proceedings report of the orderly room trial. It is Exhibit NCS4.  The date the trial was conducted and concluded was on 11th October 2018. The report also contains the recommendations of the orderly room trial.

 

From the evidence, it was on the basis of the alleged offences, the charge and the trial the claimant was eventually dismissed vide Exhibit E by the 2nd defendant. At the time of the alleged offense and the trial, the claimant’s rank was Inspector of Prisons [now Inspector of Corrections]. The claimant agreed this was a junior rank. In cross examination, the claimant confirmed that at the time of his investigation, he was a junior staff and the 2nd defendant had the right to sack him. It is therefore clear that up to the time of conclusion of the trial of the claimant for the alleged offences and recommendation made by the adjudicator, the claimant was a junior officer.

 

However, the 2nd defendant did not take decision on the report of the orderly room trial until March 2022 when the approval for the claimant’s dismissal was given. At this time, the claimant had received and had been decorated with his new rank of Senior Inspector of Corrections in 2019 upon his transfer to Benin. The claimant received his rank of Senior Inspector of Corrections more than 2 years before the 2nd defendant approved his dismissal. From the time the claimant received his promotion to rank of Senior Inspector of Corrections, which is CONPASS 8, he became a senior staff and was accordingly beyond the disciplinary reach of the 2nd defendant. Only the Board had disciplinary powers over the claimant from that moment. Thus, the 2nd defendant no longer had the vires to dismiss the claimant as it did in March 2022 vide Exhibit E.

 

The very moment the claimant was promoted to Senior Inspector of Corrections, the defendants ought to have referred any pending disciplinary case against him to the Board to continue and conclude. The 2nd defendant acted ultra vires to have proceeded to approve the claimant’s dismissal when the claimant was no longer a junior staff. Consequently, I also find merit in the claimant’s assertion that the 2nd defendant lacks power to dismiss him. I also find the dismissal of the claimant to be unlawful for this reason.

 

The law is settled that where an employee whose employment is protected by statute is removed from office in violation of the statutory procedure or in the manner not in line with the applicable rules, the removal is null and void and liable to be set aside. In OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 46 to 47, the Supreme Court held thus:

 “When an office or employment has a statutory flavour in the sense that its conditions of service are provided for by the statute or regulations made there under, any person in that office or employment enjoy a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. When a statute has conferred on anybody the power to make decisions affecting individual, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions.”

 

In the result of the foregoing, I find that the dismissal of the claimant was unlawful, null and void. The claimant’s dismissal is accordingly hereby set aside. The legal consequence of a finding that an employee has been improperly removed from his employment which is protected by statute is that the employee has never been removed from the employment at all. A consequential order for the reinstatement and payment of the outstanding salaries and other entitlements of the employee from the time of the unlawful removal will automatically be made. See KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141; OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807; MALIKI vs. MICHAEL IMODU INSTITUTE FOR LABOUR (2008) LPELR-8467 (CA). Therefore, the claimant is entitled to be reinstated to his employment without loss of position and rank and be paid all the arrears of salaries, allowances, benefits and other entitlements from the date when he was unlawfully dismissed from his employment.

 

Accordingly, I order as follows:

1.         It is declared that the dismissal of the Claimant from the service of the 1st defendant as published in the 2nd Defendant's Radio Message Ref. No. NCOS: 948/H/S.25/VOL.IV/100 dated 28th day of March, 2022, and purported to have taken effect on the 1st day of March, 2022, is invalid, null and void and of no effect whatsoever.

2.         An Order is made directing the Defendants to reinstate the claimant into the service, promote and place the Claimant in the same or similar rank or position with his colleagues who are still in the service and which he would have been but for the unlawful dismissal.

3.         An Order is made directing the Defendants to pay the Claimant forthwith all the arrears of his salary and other entitlements and benefits from 1st March 2022 to this date of judgment and to restore the claimant to be at par in terms of rank, remuneration and other benefits with his mates prior to the dismissal.

4.         An Order of perpetual injunction is made restraining the Defendants whether by themselves, servants, agents and privies from further acting on or implementing the contents of the Radio Message Ref. No. 948/H/S.25/VOL.IV/100 dated 28th day of March, 2022, in so far as it concerns or relates to this Claimant.

5.         The claimant’s claim for general and exemplary damages is refused but cost of N500,000 is awarded to him.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge