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/PHC/162/2021

 

BETWEEN:

 

MR. FRANCIS ECHENA                    -----------------                   CLAIMANT

 

AND

 

1.     THE NIGERIAN POLICE                                                    

2.     INSPECTOR GENERAL OF POLICE

3.     POLICE SERVICE COMMISSION                    DEFENDANTS

4.     COMMISSIONER OF POLICE RIVERS

STATE POLICE COMMAND

 

JUDGMENT

 

1.1.           The claimant filed this Complaint and Statement of Facts together with other processes on the 29th of December, 2021, and claims the following reliefs against the Defendants:

 

1.      A declaration that the recommendation for dismissal of the claimant by the orderly room trial, presided over by Ayo Oweye (CSP) dated 23rd day of April, 1996 is illegal, a miscarriage of justice and therefore null and void.

 

2.      An Order directing the Defendants to grant and approve the proper retirement of the Claimant which has been due since 31st May, 2003.

 

3.      An Order compelling and directing the Defendants jointly and severally to grant the Claimant his due entitlements such as ranks and retirement benefits.

 

4.      And an Order compelling and directing the Defendants jointly and severally to pay all monetary benefits due to the Claimant such as salaries, gratuity, retirement and pension benefits accruable to the Claimant from 1996 and continuously.

 

5.      Ten Million Naira (N10,000,000.00) as general/exemplary damages.

 

6.      Cost of this action.

1.2.           It is apposite to note that despite the service of the originating processes and numerous Hearing Notices on the Defendants, none of the defendants filed any process in the suit nor appeared either in person or through a Counsel to defend the suit throughout the proceedings.

 

1.3.           The Claimant testified in chief as CW on the 7th of June, 2022 when he identified and adopted his deposition filed on the 29th of December, 2021. The following documents were tendered by the Claimant and admitted by the Court:

 

1.      Police Signal DTO.121500/4/96 ---- exhibit CW1A.

2.      ‘An Appeal against orderly room verdict’ dated 9/5/96 --- exhibit CW1B.

3.      Claimant’s letter of appeal dated 18th February, 1997 ----- exhibit CW1C.

4.      Claimant’s 2nd reminder letter dated 1st July, 1997 ------ exhibit CW1D.

5.      Legal Aid Council letter dated 14th February, 2003 ---- exhibit CW1E.

6.      Solicitor’s letter of N. A. Ibiloye & Co. dated 4th February, 2008  -------exhibit CW1F.

7.      Solicitor’s letter of N. A. Ibiloye & Co. dated 28th May, 2009 --- exhibit CW1G.

8.      The Police Signal DTO.050830/08/97 ------- exhibit CW1H.

9.      The Nigeria Police letter to the Claimant dated 21st February, 1997 ---- exhibit CW1J.

10.  The letter of the AIG, Directorate of Finance & Admin. Benin City dated 28th October, 1997 ------- exhibit CW1K.

 

1.4.           With the close of the Claimant’s evidence in chief, the matter was adjourned several times to enable the defendants cross-examine the claimant but when they repeatedly failed and neglected to come to Court despite service of numerous Hearing Notices on them, the Court had no other option than to foreclose them from cross-examining the Claimant. The Claimant was discharged on the 15th of February, 2023. The Claimant closed his case on the same 15th of February, 2023.

 

1.5.           With the close of the Claimant’s case the suit was adjourned for defence. When the defendants again failed to appear to defend the suit despite service of Hearing Notices on them, the Court foreclosed them from defending the suit on the 5th of June, 2023. The parties were then ordered to file their final written addresses.

 

1.6.           While the Claimant’s final written address was filed on the 4th of July, 2023, the defendants did not file any final written address in the suit. The Claimant’s Counsel B. A. Okeh who held the brief of G. O. Akhidenor adopted the claimant’s final written address on the 29th day of April, 2024. There was no representation for the defendants when the matter came up for adoption of final written addresses on the 29th day of April 2024.

 

THE CASE OF THE CLAIMANT:

2.1.      The Claimant pleaded and testified that he was enlisted into the Nigeria Police Force on the 1st of June, 1968, and served as an Inspector under the Rivers State Area Command until sometime in 1996 when an orderly room trial recommended that he should be dismissed from office for negligence of duty and discreditable conduct. What led to his orderly room trial was the decision to act on an information given to him by the O/C Crime Mr. Jonathan Ogbu (DSP) concerning an illegal dynamite dealer. The information was originally given by a police informant Gabriel Obom to the then O/C Area Command Port Harcourt Supol Asijie (the Area Commander).

 

2.2.      According to the Claimant, upon receiving the information he prepared a search warrant which was later executed by him and his team on one Maniyor Shedrack where they found some dynamite. The said Maniyor Shedrack was arrested and detained, but the suspect reported the claimant and his team to the 3rd defendant alleging that they framed him up by planting the dynamite in his business place and obtained money in return for bail. That the adjudicating police officer during the orderly room trial failed to consider any of the documents before him, and also relied on the evidence of the daughter to the suspect to infer that the Claimant collected the sum of One Thousand Naira (N1000.00) in return for bail. He was made to face another investigation led by one DSP Nwama, and held incommunicado for a period of three months before being released without being charged to Court or anything said about his employment status. He was due for retirement on the 31st of May, 2003. That despite the assurance of the Nigeria Police that his case was being attended to, and he would be informed, he has not received any response from the defendants despite the recall of some of his colleagues who were also involved in the matter like Cpl. David Egbon. That since he has neither been dismissed nor recalled by the defendants, the Court should grant his reliefs in the suit.

 

CLAIMANT’S SUBMISSIONS:

 

3.1.           The Claimant’s Counsel submitted the following four (4) issues for the Court’s determination:

 

1.      Whether the failure of the Defendants to respond to or act on exhibits CW1B, CW1C, CW1D, CW1E, CW1F and CW1G to defend this suit amounts to admission, and whether consequently Judgment can be entered in favour of the Claimant.

2.      Whether the principle of fair hearing was observed in the Orderly Room Trial that led to the dismissal of the Claimant.

3.      Whether the purported dismissal of the Claimant from the Nigerian Police Force based on the said Orderly Room Trial is null, void and of no effect whatsoever.

4.      Whether based on the overwhelming evidence and facts before the Court, the Claimant is entitled to the reliefs sought.

 

3.2.           It was submitted on issue one (1) that, the failure of a party to respond to a letter and to deny any statement that is against his interest is an admission of the statement. That the defendants’ failure to respond to exhibits CW1B, CW1C, CW1D, CW1E, CW1F and CW1G shows an intention not to act on his appeal since 28th October, 1997. See Jeo Iga V. Chief Amakiri (1976) II SC 1 and Demrowl International Company V. GTB (2019) LPELR-48965(CA).

 

3.3.           It was further argued that, since the defendants did not file any process to challenge the suit, the Court should act on the Claimant’s evidence and grant the reliefs in the suit. See Agienoji V. C.O.P. Edo State (2007) 4 NWLR (Pt. 1023) 23 at 29 paras G-H, Mogaji V. Odofin (1978) 4 SC, CBN V. Okojie (2004) 10 NWLR (Pt. 882) 488 at 515, Maduga V. Bai (1987) 3 NWLR (Pt. 62) 635 at 640 and Agagu V. Dawodu (1990) 7 NWLR (Pt. 160) 56 at 69.

 

3.4.           With respect to issue two, it was argued that, the principle of fair hearing is pivotal to every adjudication, referring to the cases of Ovunwo & Anor V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522, Azuokwo V. Nwokanma (2005) 11 NWLR (Pt. 937) 537, Amanchukwu V. FRN (2009) 8 NWLR (Pt. 1144) 475 and Kim V. The State (1992) 4 NWLR (Pt. 233) 17.

 

3.5.           It was further argued that, since the Claimant was not allowed to question the witnesses, was not allowed to call his witnesses and not allowed to present documentary evidence, he was not given fair hearing during the Orderly Room trial.  The Court was urged to so hold. See Gyang V. C.O.P. Lagos State (2014) 3 NWLR (Pt. 1395) 547 and section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

 

3.6.           On issue three, it was posited that, since the claimant was not given fair hearing during the Orderly Room trial, his dismissal from service is unjust, unlawful, null, void and of no effect whatsoever. The Court was urged to so hold. See Misosonu V. State (2021) LPELR-54418(CA), Imade V. I.G.P. (1993) 1 NWLR (Pt. 271) 608 and Ekiyor V. Bomor (1997) 9 NWLR (Pt. 519) 1.

 

3.7.           With respect to issue four, the learned Counsel to the Claimant submitted that, from the facts and evidence before the Court the claimant has shown that he is entitled to the reliefs he is seeking in this suit. That since the defendants had every opportunity to defend the suit but failed to do so, the Court should act on the unchallenged evidence of the Claimant. See Okoebor V. Police Council (2003) 12 NWLR (Pt. 834) 444, Asafa Foods Factory V. Alraine (Nig) Ltd (2002) 12 NWLR (Pt. 781) 353 at 380, Aderonpe V. Eleran (2019) 4 NWLR (Pt. 1661) 141 at 170 paras D-F and section 132 of the Evidence Act.

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

 

COURT’S DECISION:

 

4.1.           Having pored over the Claimant’s pleadings and evidence before the Court, as well as the submissions of the Claimant’s Counsel, I am of the humble view that this suit can be determined on the basis of the Claimant’s Issue four (4) which is, Whether based on the evidence and facts before the Court, the Claimant is entitled to the reliefs sought.

 

4.2.           I have taken time to review and evaluate the evidence on record which is unchallenged and seen that the Claimant who joined the Nigeria Police Force on the 1st of June, 1968 was subjected to an orderly room trial in 1996 vide exhibit CW1A which also suspended him from the office with immediate effect. He appealed against the verdict of the orderly room trial which had recommended his dismissal from the service vide exhibit CW1B dated 9th May, 1996, exhibit CW1C dated 18th February, 1997 and exhibit CW1D dated 1st July, 1997. The letters of the claimant were forwarded to the 1st Defendant vide exhibit CW1K. The Legal Aid Council also wrote to the Honourable Chairman of the 2nd Defendant vide exhibit CW1E dated 14th of February, 2003 concerning the case of the Claimant and one Inspector Samuel Oseji. The Claimant’s Solicitors also wrote to both the 1st and 2nd Defendants vide exhibits CW1F and CW1G dated 4th February, 2008 and 28th May, 2009 respectively.

 

4.3.           It is apparent from the records that, while some of the officers affected by the orderly room trial such as Cpl David Egbon, Sgt. Imeh Afangide and Sgt. Barike Iporo had their cases reconsidered and recalled to their offices vide exhibit CW1H, the claimant’s appeal was not attended to by the defendants, even when the 1st defendant wrote exhibit CW1J dated 21st of February, 1997 to the Claimant notifying him that his appeal was receiving attention, and the outcome of the case would be communicated to him in due course.

 

4.4.           The grouse of the Claimant in the suit is that, he was not afforded fair hearing before the orderly room trial, and that his continuous suspension by the defendants is unjust and should be set aside because he has not heard from the defendants concerning the status of his employment.

 

4.5.           I earlier stated in this judgment that the suit is undefended as the defendants neither filed any process in the suit nor appeared before this Honourable Court for the purpose of challenging the suit. The law is now banal that, where evidence of a party to a suit is not debunked or challenged by the opposite party that had the opportunity to do so, the trial Court or tribunal ought to accept and act on the unchallenged evidence unless same is manifestly implausible. See the case of Securities Solutions Limited and Others V. Mrs. Biodun Idowu Adamu-Oladiran and Others (2016) LPELR-40068(CA), where the Court of Appeal held thus at pages 32 – 33 paragraphs E-A, “They also failed to challenge the evidence of the 1st and 2nd Respondents witness. The position of the law with respect to unchallenged evidence is clear. The Supreme Court in the case of Amayo v. Erinmwingbovo (2006) 11 NWLR (Pt. 992) 699 held as follows:

“The position of the law as regards unchallenged evidence is as stated above, for any such evidence that is neither attacked nor discredited, and is relevant to the issues joined ought to be relied upon by a Judge.” See also the case of Goyang Kayili V. Esly Yilbuk and Others (2015) LPELR-24323(SC). Having had the opportunity to defend the claimant’s suit but chose not to do so, I hold that the defendants have admitted the evidence of the claimant, and this Court has no option than to accept the evidence which I find to be plausible.

 

4.6.           The point must be made that, the defendants in this suit are public officers thereby making the employment of the Claimant one with statutory flavour. The law enjoins the defendants to follow all laid down procedures including affording the claimant the right to fair hearing before any disciplinary action can be taken against him. See Comptroller General of Customs and Others V. Comptroller Abdullahi B. Gusau (2017) LPELR-420819(SC), where the apex Court per Muhammad, JSC held that, “It has become trite that employments that have statutory flavour can only be terminated in the manner allowed by the very statutes that provided for them. See Kunle Osisanya v. Afribank Nigeria Plc (2007) 6 NWLR (Pt.1031) 565 and Bamgboye v. University of Ilorin (1999) LPELR-737(SC).”

 

4.7.           In the circumstance, the case of the claimant succeeds and reliefs 1, 2, 3 and 4 are hereby granted. Relief 5 for the sum of N10,000,000.00 (Ten Million Naira as general/exemplary damages is hereby refused. Having granted reliefs 1, 2, 3 and 4, relief 6 for cost of action is also refused. The Court hereby declares and orders as follows:

 

 

1.      It is hereby declared that the recommendation for dismissal of the claimant by the orderly room trial, presided over by Ayo Oweye (CSP) dated 23rd day of April, 1996 is illegal, a miscarriage of justice and therefore null and void.

2.      The Defendants are hereby ordered to grant and approve the proper retirement of the Claimant which has been due since 31st May, 2003.

3.      An Order is hereby made compelling and directing the Defendants jointly and severally to grant the Claimant his due entitlements such as ranks and retirement benefits.

4.      An Order is hereby made compelling and directing the Defendants jointly and severally to pay all monetary benefits due to the Claimant such as salaries, gratuity, retirement and pension benefits accruable to the Claimant from 1996 to 31st May, 2003 when he was due for retirement.

5.      The terms of this judgment shall be complied with within 30 days from today. Judgment is entered accordingly. No order as to cost.

 

Hon. Justice P. I. Hamman

Presiding Judge

 

REPRESENTATION:

 

I.T. Offor holding the brief of G. O. Akhidenor for the Claimant.

No representation for the Defendants.