IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- PRESIDING JUDGE

 

DATE: FRIDAY 17TH MAY, 2024                      

SUIT NO: NICN/YEN/132/2015

 

BETWEEN:

 

GODWIN ORIJI      ----------------------------                          CLAIMANT

 

AND

 

1.     THE CONTROLLER-GENERAL

OF CORRECTIONAL SERVICE                                DEFENDANTS

2.     L. C. OJIGBULE

JUDGMENT

 

1.1.           This suit which has a checkered history was first commenced at the Federal High Court Port Harcourt Judicial Division on the 4th of February, 2011 as Suit No. FHC/PH/CS/101/2011. By an order of Hon. Justice U. N. Agomoh of the Federal High Court dated 3rd of November, 2014, the suit was transferred to this Hon. Court. The Claimant then filed an Amended Complaint and other originating processes on the 4th of May, 2018, which were however regularized on the 26th of February, 2020. It is however pertinent to state that the extant originating processes relied upon by the Claimant in this suit are the Amended Complaint and Amended Statement of Facts filed on the 9th of August, 2021. The Defendants filed a Consequential Statement of Defence and other processes on the 14th of February, 2022, and a Notice of Preliminary Objection on the 6th of June, 2022.  The Claims of the Claimant against the Defendants  are as follows:

 

1.      A declaration that the dismissal letter from the defendant to the Claimant dated 13-01-2009 with reference No NPS.948/S/11/Vol.TI/234 is wrongful, baseless, vexatious, null and void.

 

2.      An order that the defendants should reinstate the Claimant to his work with any possible promotion(s).

 

3.      An Order that the defendants should pay the Claimant his salaries and entitlements from 13-01-2009 till the judgment is executed.

 

1.2.           Trial in this suit started on 30th of November, 2021, when the Claimant opened his case by testifying for himself as CW. He identified and adopted his statement on oath that was filed on the 9th of August, 2021. The following documents were then tendered through CW and admitted by the Court:

 

1.      Copy of Letter of Appointment dated 8th August, 2001  ---- exhibit CW1.

2.      Copy of Letter of Offer of Appointment dated 8/8/2001 --- exhibit CW2.

3.      Letter of Dismissal from Service dated 13th January, 2009  --- exhibit CW3.

4.      Application for implementation of promotion salary arrears of 2005 and 2006 Junior Staff Promotion dated 4th June, 2008 ------ exhibit CW4.

5.      Solicitor’s letter of Wome Moses O. & Co. dated 19/3/2009 -- exhibit CW5.

6.      Copy of Intercontinental Bank Statement of Account ----- exhibit CW6.

7.      Photograph ------ exhibit CW7.

8.      Memo on release of year 2005 and 2006 Junior Staff Promotion and Upgrading  ------ exhibit CW8.

9.      Particulars of leave pass dated 13th February, 2009 --------- exhibit CW9.

The witness (CW) was cross-examined by the Defendants’ Counsel and discharged on the 6th of June, 2022 without any re-examination. The Claimant closed his case on the 6th of June, 2022.

 

1.3.           It is apposite to note that, even though the Defendants particularly the 1st Defendant filed a Consequentially Amended Statement of Defence and other processes in this suit on the 14th of February, 2022, both Defendants failed to appear to defend the suit despite the numerous opportunities extended to the Defendants by the Court. The Defendants were as a result foreclosed from defending the suit on the 2nd of May, 2023. The parties were then directed to file their final written addresses in the suit.

 

1.4.           While the Claimant’s Final Written Address was filed on the 10th of July, 2023, but regularized on the 22nd of November, 2023, the Defendants did not file any final written address in the suit. The claimant’s learned Counsel K. C. Ajinwo adopted the claimant’s final written address on the 19th of March, 2024. The defendants were not represented by counsel when the matter came up for adoption on the 19th of March, 2024.

 

THE CASE OF THE CLAIMANT:

 

2.1.           The Claimant avers that he was employed by the Nigerian Correctional Services (then known as Nigerian Prisons Service) on the 8th of August, 2001 and worked diligently at the Rivers State Command. He was promoted from the rank of Prisons Assistant I to Chief Prisons Assistant, and he wrote to the defendants on the 4th of June, 2006 asking for the release of his salary arrears. That when the 2005 and 2006 junior staff promotions were released, his salary per month became N48,000.00.

 

2.2.           According to the Claimant, he went on one month annual leave on the 16th of February, 2009 and resumed on the 16th of March, 2009. That while he was never informed of any allegation from the defendants and no query was issued to him prior to the annual leave, to his surprise he received a letter of dismissal from service dated 13th of January, 2009 on the 17th of March, 2009. That he was never invited to appear before any panel or given any opportunity to defend any allegation against him. He pleads the particulars of errors in the letter of dismissal to include:

a.      The service number of the Claimant is No. 44320 while the service number on the letter of dismissal is 4432, and the two numbers cannot refer to the same person.

b.      Paragraph 1 of the letter talks of decision being arrived at after thorough review of the adjudication proceedings against the staff, while in truth, there has never been any allegation or query against the claimant, and the claimant has never appeared before any panel to defend himself as to warrant thorough review of adjudication proceedings as alleged.

c.      As at the time the alleged letter was written the claimant was a Chief Prison Assistant (CPA) as at 13th January, 2009, but the letter of dismissal was written bearing the rank of Senior Prison Assistant (SPA). There was no time the claimant was demoted after his promotion in 2008.

d.      The 2nd defendant who allegedly executed the letter was not in the country as at 13th January, 2009.

 

CLAIMANT’S SUBMISSIONS:

 

3.1.           The learned Counsel for the Claimant identified the following sole issue for the Court’s determination: “Whether from the evidenced (sic) adduced before this Honourable Court the Claimant is entitled to judgment in his favour.

 

3.2.           It was submitted on the lone issue that, the onus of proof is on the claimant to establish his case on preponderance of evidence and balance of probability. See Eya V. Onuoha (2011) 45 NSCQR 210 and section 134 of the Evidence Act 2011. It was further argued that, since the claimant’s evidence is unchallenged, the Court should accept and act on it as sufficient proof of the case. That the onus of proof in the circumstance is minimal proof as there is no evidence on the other side of the scale. See Kopek Construction Ltd. V. Ekisola (2010) 3 NWLR (Pt. 1182) 618 at 663 paras C-D, Ayanwale V. Odusami (2011) 48 NSCQR 38 at 57, Insurance Brokers of Nigeria V. Atown (1996) 8 NWLR (Pt. 466) 316 at 327 para G, Mobil Oil Nig. Ltd V. National Oil & Chemical Marketing Co. Ltd (2000) 9 NWLR (Pt. 671) 44 at 52 para H, Ebinwa V. State (2011) 7 NWLR (Pt. 1246) 402 at 416 para D and Monkom V. Odili (2016) 2 NWLR (Pt. 1170) 419 at 442 paras D-E.

 

3.3.           It was further contended that, since the Defendants who filed Statement of Defence in the suit failed to call evidence in defence of the suit, they have abandoned their defence. See CBN V. Okojie (2015) 14 NWLR 231 at 258 paras B-C and Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 1 at 280 paras D-E.

 

3.4.           It was further posited that, since the claimant was neither issued a query nor invited to appear before any adjudicating panel or even given an opportunity to defend himself of any allegations against him, his dismissal from service is in gross violation of his fundamental right to fair hearing as guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Imasa V. Odey (2013) LPELR-21402(CA) pages 28-29 paras F-D.

 

3.5.           According to the Claimant’s Counsel, since the Claimant is a public officer any criminal allegation against him must be first investigated and prosecuted by the police before any administrative action could be taken. That the defendants are obliged to follow the right procedure before dismissing the claimant since he is a public officer on a pensionable appointment. See Okocha V. CSC, Edo State (2004) 3 NWLR (Pt. 861) 494, F.C.D.A. V. Naibi (1990) 3 NWLR (Pt. 138) 270, Ekunola V. CBN & Anor (2013) LPELR-20391 and Ahmed V. Abu & Anor (2016) LPELR-40261(CA).

 

3.6.           The Court was urged to enter judgment in favour of the Claimant.

 

COURT’S DECISION:

 

4.1.           Having pored over the pleadings and evidence of the Claimant, this Court shall determine this suit on the basis of the single issue crafted by the Claimant’s Counsel which is, whether from the evidence adduced before this Honourable Court, the Claimant is entitled to judgment in his favour.

 

4.2.           Since the Defendants filed processes in this suit but failed to call any witness in the suit, it may therefore be apposite to start by resolving the status of the defendants’ processes.

 

4.3.           The defendants filed a Consequential Statement of Defence on the 14th day of February, 2022, together with the witness statement on oath of one Bello M. O. an Assistant Superintendent of Corrections who they intended to call as a witness in the suit. The Defendants however failed and neglected to call the said witness to adopt the witness statement on oath in order to give life to the averments in the Defendants’ pleadings. The last time the Defendants’ Counsel G. R. A. Sholola appeared in this suit was on the 6th day of June, 2022 when he cross-examined the Claimant. Since then, the Defendants stayed away from Court despite the numerous opportunities given to the defendants to defend the suit.

 

4.4.           Having failed to appear in Court after several adjournments, the Court foreclosed the Defendants from defending the suit on the 2nd day of May, 2023. The legal implication of the attitude of the defendants is that the Consequential Statement of Defence filed on the 14th of February, 2022 is deemed to have been abandoned by the defendants. Just as any evidence on an unpleaded fact is of no moment, any pleading without evidence is deemed to have been abandoned and cannot be relied upon by a Court for the purpose of adjudicating a matter. In the Circumstance, the Defendants’ Consequential Statement of Defence and all the accompanying processes are hereby discountenanced and struck out, same having been abandoned by the Defendants. See the case of Military Governor of Lagos State and Others V. Adebayo Adeyiga and Others (2012) LPELR-7836(SC), where the Apex Court per Rhodes-Vivour, JSC held at page 55, paras A-B of the report that, “In the absence of evidence to support the statement of defence, the pleadings of the defendants/appellants were abandoned. The defence is deemed abandoned for all time. See Okechukwu v. Okafor 1961 2 SCNLR p.369.” See also the cases of Union Bank of Nigeria Plc V. E. D. Emole (2001) LPELR-3392(SC) and First Bank of Nigeria Plc V. Shamsu Umaru and Another (2023) LPELR-594699CA).

 

4.5.           It also instructive to determine the status of the Notice of Preliminary Objection filed by the Defendants on the 6th day of June, 2022, urging this Court to dismiss the suit for being statute barred. The Defendants also failed to appear before the Court to argue the application. In the circumstance, the Defendants’ Notice of Preliminary Objection filed on the 6th day of June, 2022 is hereby struck out.

 

4.6.           Having discountenanced and struck out the Defendants’ Consequential Statement of Defence and the Notice of Preliminary Objection in this suit, it is obvious that the instant suit was not challenged or defended by the defendants. It is the law that a defendant who has the opportunity to defend a suit but fails to do so and the suit is unchallenged or uncontroverted is deemed to have admitted the case of the Claimant. The Court is entitled to act on such unchallenged evidence except where same is manifestly unbelievable. It is therefore the view of this Court that since the evidence of the Claimant is unchallenged, the defendants have admitted the claimant’s evidence, and this Court shall proceed to give its decision based on the evidence adduced by the Claimant in this suit. See the case of O.A.N. Overseas Agency Nigeria Ltd V. Bronwen Energy Trading Limited and Others (2022) LPELR-57306(SC), where the Apex Court per Peter-Odili, JSC held as follows at pages 30 - 31 paras F- E of the report: “This averment was never either controverted by the Appellant nor denied. It was clearly also deemed as admitted in law. Further on this point, it is a firmly settled principle of law that facts admitted need no further proof and same is deemed established. See NAS Ltd V. UBA Plc (2005) 14 NWLR (Pt. 945) 421 @ 435 A-B, where the Supreme Court, per Akintan JSC, held as follows: “The position of the law is that facts admitted require no further proof.” This Court in the case of Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 held that where there is unchallenged and uncontroverted evidence, the Court has a duty to act on it. Interestingly, this same material piece of uncontroverted evidence was picked from the witness statement of the 1st Respondent’s witness and restated by the Appellant in paragraph 4.25 of the Appellant’s Brief. This evidence was uncontroverted and still unchallenged under cross-examination. Failure to cross-examine on a matter is acceptance of the fact. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 @ 605. No further proof is required.” See also the cases of Chief Taofik Ebelamu and Others V. Alh Muhammed Yaya Alayande and Another (2023) LPELR-59662(CA) and Martchem Industries Nigeria Limited V. M. F. Kent West Africa Ltd (2005) LPELR-1842(SC) where it was also held that where evidence is unchallenged the Court has the duty to act on same.

 

4.7.           The Claimant informed the Court in his evidence in chief that he was employed as a Prisons Assistant I on the 8th day of August, 2001, and promoted to the rank of Chief Prisons Assistant on a monthly salary of N48, 000.00. His main grouse is that he went on an annual leave on the 16th of February, 2009 and upon his resumption from the annual leave on the 16th of March, 2009 he received a letter from the defendants dismissing him from service without any allegation or query issued to him. No panel was set up to investigate the allegation in order to afford him an opportunity to defend himself, and that while his service number is 44320, the service number on the dismissal letter is 4432. Exhibit CW1 is the letter of appointment, exhibit CW2 is the offer of appointment, exhibit CW3 is the letter conveying the dismissal letter to the claimant, exhibit CW8 is the memo for the release of 2005 and 2006 junior staff promotion and upgrading with the claimant as number 874 on the list, exhibit CW9 is the claimant’s Particulars of Leave Pass while exhibit CW7 is a photograph showing the Claimant being decorated with a new rank.

 

4.8.           Some of the highpoints of the answers elicited from the Claimant during his cross-examination are that he has only one service number as 44320, and that he had worked at the Rivers State Headquarters before he was transferred to the Port Harcourt prison and back to the State Headquarters where he worked until his dismissal from service. He stated that his duty as an escort duty officer was to produce inmates in court on their scheduled trial dates and to return them to the Port Harcourt prison after each trial. That he was an escort duty officer between 1st August, 2007 and 15th August, 2007, but he could not recall producing 5 production warrants from the court to the prison yard on the 2nd of August, 2007. He refuted being given a charge sheet on the 9th of August, 2007. He insisted that while he was not tried and never went through any adjudication process, he however received a letter of dismissal while on duty on the 17th of March, 2009 indicating that he was tried and the outcome taken to the Zonal Command Owerri and the Headquarters Abuja which was reviewed.

 

4.9.           It is also apposite to make the point that, the claimant’s employment is one with statutory flavour, and the Defendants are under legal obligation to adhere strictly to the rules and regulations relating to the discipline of the claimant. The contention of the Claimant that he was not given fair hearing by the defendants before his dismissal from service cannot be overlooked by this Court. The principle of natural justice/fair hearing as provided in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is sacrosanct in any disciplinary proceeding by employers of labour. There is nothing before this Court to show that the Claimant was given any query with a view to bringing the allegations against him to his knowledge for his response, or that a panel was set up to enable him make his representations with a view to exculpating himself of the allegations. In the case of Mrs Janet Udoh V. Civil Service Commission Akwa Ibom State and Others (2013) LPELR-21849(CA), the Court of Appeal stated that, “To constitute fair hearing, whether before the regular Courts or before Tribunals and boards of inquiry, a person accused of a crime should: (a) know what is alleged against him: (b) Be present when every evidence against him is tendered; and (c) Be given a fair opportunity to correct or contradict such evidence.” See also the cases of James A. Ikuma V. Civil Service Commision Benue State (2012) LPELR-8621(CA) and The Attorney General of Kwara State and Others V. Alhaja Kike Ojulari (2006) LPELR-6151(CA).

 

4.10.       Having therefore evaluated or reviewed the Claimant’s evidence on record, and since the suit is unchallenged, I hold the considered view that the Claimant has proved his case before the Court. The failure to afford the Claimant the opportunity to defend the allegations against him (if any) has vitiated and rendered nugatory his dismissal from service vide the letter of dismissal dated 13th of January, 2009. The lone issue identified by the Court is hereby resolved in favour of the Claimant. The Claimant’s case therefore succeeds. The Court hereby declares and orders as follows:

 

1.      It is hereby declared that the dismissal letter from the defendants to the Claimant dated 13th of January, 2009 with Reference No. NPS.948/S.11/VOL.T1/234 is wrongful, baseless, vexatious, null and void.

 

2.      The Defendants are hereby ordered to reinstate the Claimant back to service.

 

3.      The Defendants are hereby ordered to compute and pay the Claimant his salaries and entitlements from 13th January, 2009 till the execution of this judgment.

 

4.      The Defendants are hereby ordered to comply with the terms of this judgment immediately. Judgment is entered accordingly. No order as to cost.

 

Hon. Justice P. I. Hamman

Presiding Judge

 

REPRESENTATION:

 

K. C. Ajinwo, Esq. for the Claimant.

No representation for the Defendants.