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Lagos --His Lordship, Hon. Justice J. D. Peters of the National Industrial Court of Nigeria, Lagos Judicial Division on Thursday 27th September, 2018 in a landmark judgment declared the constructive dismissal of the Peter Okoh (Claimant) by the National Agency for Food & Drug Admin & Control (Defendant) as a breach of the Claimant’s right to fair hearing under Section 12 (2) of the Defendant’s establishment Act and the Constitution of Nigeria 1999 (as amended) and therefore, unlawful, illegal and unconstitutional, ordered immediate re-instatement into the service as a staff of the NAFDAC from today.
The Claimant commenced this suit on 22/4/16 via a General Form of Complaint and statement of facts and sought among others; A declaration that the Claimant is entitled to all his salaries, allowances, bonuses and other entitlements etc. accruing from February 2013 until his employment is properly determined according to the Defendant’s Act 1993 and Civil Service Rules of the Federation. A declaration that the constructive dismissal of the claimant by the defendant is a breach of the claimant’s right to fair hearing under section 12 (2) of the defendant’s Act 1993 and the Constitution of Nigeria 1999 (as amended) and therefore, unlawful, illegal and unconstitutional. An order of this Honourable Court compelling the defendant to pay to the claimant all his arrears of salaries at N87,945.80 per month and other entitlement that has accrued or is accruing from February 2013 until his employment is properly determined. An order of this Honourable Court re-instating the Claimant to his work and current position and level with the defendant with immediate effect.
The case of the Claimant as revealed from his pleadings is that he was employed by the Defendant in 2000 as a Clerical Officer II on salary scale of HTISS 04/3; that on 7th December, 2012, the Defendant through one Ijeoma Evbayemwenru (Ijeoma) granted an oral permission to him to go to the Defendant’s Apapa office; that on his arrival, the Defendant arrested him and one other person on an alleged involvement in the forgery of an import permit; that he was not allowed to return to office as he and the Consultant were handed over to the waiting Policemen from the Federal Intelligence and Investigation Bureau, Alagbon Close, Ikoyi Lagos for investigation; that he spent about seven days in detention before being released on bail; that when he returned to work after detention on 15/12/12 Ijeoma (being the claimant’s immediate boss) informed him that the Defendant’s then Director General Dr. Paul Orhii (DG) had directed her to inform the Claimant to stay away from work until further notice and that the office keys with him was retrieved and told to await further directives from the Director General. Claimant added that while he was in his house waiting for the DG’s further directive for his possible return to work, the Defendant’s Apapa office invited him to Apapa and handed him over to another set of Policemen from another unit of the Police Force for another round of investigation and was further detained for another 7 days; that he was released on bond and he returned to his office at the Defendant’s Oshodi office where he worked; that he asked from Ijeoma whether the Defendant's Director General has directed that he resumes work but Ijeoma said no that the Director-General said until he received a copy of the Police report of his case he should not resume; that the Defendant then stopped his salary from February, 2013 without recourse to the known law and rules governing his employment; on the stoppage of his salary, his immediate boss Mrs. Ijeoma advised him to remain calm as the salary would be paid to him after his recalled to work particularly, if the Police report exonerates him.
Under cross examination, claimant testified that he did not assist anybody to procure Chemical Import Permit; that the means of communication at Defendant include writing and oral or verbal communications; that oral Communication is not enough for him to stop work.
The case of the Defendant is that the Claimant abandoned his duty post. Under cross examination, the witness stated that the Claimant’s employment is governed by the Civil Service Rules; that she is not in the Human Resources of the Defendant; that she does know under what law the salary of the Claimant was stopped; that on 7/12/12 Claimant took permission to go for breakfast; that when she did not see him on time she called and the Claimant informed her that he was at Defendant’s Enforcement Unit at Apapa; that the Defendant arrested Claimant at Apapa and from that day Claimant had not returned to the office and that another staff was sent to replace the Claimant and prayed the Court to dismiss the case of the Claimant.
Under cross examination, the witness testified that he knew the Claimant; that he is a public servant; that the 5 exhibits tendered are not the reasons for stopping the salary of the Claimant; that Claimant's absence from duty is a misconduct under the Civil Service Rules; that there are procedures under Civil Service Rules for dealing with such matter; that the Defendant has bio data of every one of its staff; that there is no evidence before the Court that he went to look for the Claimant in his house when he did not come to work.
At the close of trial and pursuant to the direction of the Court learned Counsel to the Defendant filed processes. Counsel filed a notice of preliminary objection asking for an order of Court dismissing this suit.
In its notice of preliminary objection filed on 9/2/19, the Defendant Defendant/Applicant sought an order this Court dismissing the suit of the Claimant on the ground that the Originating processes in this case was served on the Defendant at its address in Isolo Industrial Estate, lagos rather than at its Head Office in Abuja as required by Section 27(2), National Agency for Food and Drug Administration and Control Act, 2004. Counsel submitted further that by Section 2, Public Officers Protection Act, this action ought to have been instituted within 3 months next of the accrual of the cause of action. Counsel urged the Court to dismiss this case. Finally, Counsel submitted that the Claimant did not endorse on his Complaint that it would be served outside the jurisdiction and that it rendered the process a nullity and prayed the Court to dismiss this case being a statute barred matter.
In his reply on points of law, learned Counsel to the Claimant/Respondent submitted that failure of the defendant to comply with statutory provisions render any accompanying act null and void and that such failure will not find protection under the Public Officers Protection Act. Learned Counsel urged the Court to dismiss the preliminary objection raised.
After reviewing the argument of both parties, the Court Presided by Hon. Justice J. D. Peters expressed thus;
“I have carefully perused the reliefs sought by the Claimant before me alongside his statement of facts. I find as a fact that the plank of the Claimant's case is that the Defendant without cause stopped payment of his monthly salary. That fact was not disputed by the Defendant. Payment of salary to an employee is critical to life of an employee as well as that of his immediate or nucleus family. Non-payment of the salary of the Claimant as required monthly since 2013 is an injury which continues till date. It has not stopped. It amounts to a continuous injury within the meaning of Section 2(a) of Public Officers Protection Act. I thus find and hold that the suit of the Claimant is not barred by the statute as argued.
“It is apparent that the Defendant completely failed to pay attention to the provisions above in matter relating to how the Claimant was treated. It is a case of a Defendant refusing to obey its own laws and rules in dealing with staff affairs. Finally and by no means of least importance, there is no letter of interdiction, suspension, termination, retirement or dismissal issued against the Claimant. In other words, I find no evidence led before me to the effect that the employment of the Claimant has been in any way or manner determined within the purview of the applicable laws and rules. I therefore find and I so hold that the employment of the Claimant subsists and that he remains an employee of the Defendant until same is determined in accordance with the extant Civil Service Rules. Having so found and held, I also hold that the Claimant is entitled to all his arrears of salaries and allowances from February 2012 till date and payment of his salary and allowances on a monthly basis as an employee of the Defendant.” His Lordship declared.
The court also declared that the deliberate withholding of the Claimant’s salaries by the Defendant without reason from February 2013 till date amounts to constructive dismissal of the Claimant by the Defendant and to that extent wrongful, illegal, unfair labour practice and malicious and therefore a breach of section 12 of the Defendant’s Act relating to discipline of junior staff of the Defendant.
His Lordship ordered that the Claimant be reinstated to his work and current position and level with the Defendant effective from today (September 27, 2018).
All the terms of this Judgment are to be complied with immediately.
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