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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: Wednesday, 24th September 2025            

SUIT NO. NICN/LA/387/2018

 

BETWEEN

 

MR. DUROJAIYE NICHOLAS                      …                     CLAIMANT

 

AND

 

NATIONAL DRUG LAW ENFORCEMENT AGENCY …                  DEFENDANT

                                            

JUDGMENT

 

1.         The Claimant commenced this suit on 18th July 2018. Initially, the case was assigned to Hon. Justice P. A. Bassi [now a Justice of the Court of Appeal]. Following his transfer, the case was reassigned to me in November 2021 and was mentioned on 3rd December 2021. The Claimant sought the following reliefs in the statement of facts dated 18th July 2018:

 

  1. A declaration that the Claimant’s employment with the Defendant is still subsisting.

 

  1. An order reinstating the Claimant into the employment of the Defendant with immediate effect.

 

  1. An order directed against the Defendant to pay all the salaries, entitlements, and emoluments of the office of the Claimant from the date of interdiction till the date of judgment in this case.

 

2.         Upon receiving the originating process, the Defendant filed a conditional memorandum of appearance on 25th July 2018. The Defendant later submitted a statement of defence, a motion on notice to regularise the processes, and a notice of preliminary objection. In response, the Claimant filed a counter-affidavit and a reply to the statement of defence. The statement of defence was deemed properly filed and served on 28th October 2019. The trial began on 6th December 2022 and concluded on 14th February 2023. The Claimant testified in support of his claims, tendered 11 exhibits, and was cross-examined. The Defendant's Director of Technical Services, Mr Ezekiel Epeso Ngale, testified on behalf of the Defendant, tendered 13 exhibits and was cross-examined. The proceedings were subsequently adjourned for the adoption of final written addresses. Both parties exchanged their final written addresses, which their counsel adopted on 1st July 2025. In adopting the Defendant’s final written address, the learned counsel for the Defendant withdrew the Defendant’s notice of preliminary objection dated 22nd May 2019, which was consequently struck out. The matter was then set down for judgment.

 

Facts of the case

 

3.         A brief overview of the case reveals that the Claimant joined the Defendant's service on 5th October 1990, with his appointment confirmed on 29th April 1993. He rose to the rank of Deputy Superintendent of Narcotics, promoted on 10th October 2003, and received commendation for his services in a letter dated 6th September 1991. The Claimant was transferred from the Edo Head Office to the Irrua Area Command, where he received a tip-off regarding drug-related activities. He obtained approval from his Area Commander to conduct surveillance and led a crackdown operation on 4th September 2006, during which a team member, Gabriel Uyi, lost his life. Although the Ubiaja Police Station and the Edo State Police Command exonerated him, the Defendant issued a query to the Claimant on 14th February 2007, to which he responded. The Claimant claims that he was investigated without being present during witness interviews and that he received a letter of interdiction on 25th October 2006, without any investigation report. He asserts that he was never served with a Notice of Punishment and has evidence that the Defendant failed to deliver the letter dated 11th July 2007. After submitting several appeals for reinstatement, he ultimately initiated legal action when his last appeal went unanswered. Conversely, the Defendant asserts that the Claimant was negligent during the operation and violated operational guidelines. The Defendant insists that investigations found the Claimant culpable, recommending his case be forwarded to the Senior Staff Disciplinary Committee, which recommended termination of his employment. The Claimant received the termination notice on 11th July 2007, and the Defendant maintains that he has been compensated with gratuity and pension enrolment. The Defendant contends that the Claimant is not entitled to any relief and that this action is statute-barred.

 

Summary of final written addresses

 

4.         Learned counsel for the Defendant raised two issues for determination in the final written address filed on 5th July 2023:

 

  1. Whether or not there was a breach of fair hearing in the process leading to the termination of the appointment of the Claimant?

 

  1. Whether or not the Claimant is entitled to any of the reliefs sought?

 

5.         On the first issue, the learned counsel argued that there was no breach of the right to a fair hearing throughout the process that led to the termination of the Claimant's appointment. It was contended that a fair hearing is established in cases of misconduct when the employee is provided with an opportunity to defend himself, which he has the chance to utilise. In support of this argument, the case of Imonikhe v. Unity Bank Plc [2013] 34 NLLR [Pt 101] 539 at 549 was cited. Moreover, counsel pointed out that the Defendant's disciplinary procedure allowed the Claimant an opportunity to defend himself, which he utilised, as detailed in paragraph 15 of the Defendant’s witness’s sworn statement. This included the query dated 12th February 2007, marked as Exhibit D2, and the Claimant’s responses to the query dated 14th February 2007, marked as Exhibit D3, which form part of the Defendant’s case. Counsel emphasised that, according to established legal principles, providing a query regarding allegations of misconduct and allowing a response fulfils the requirement of a fair hearing, as referenced in Imonikhe v. Unity Bank Plc [supra]. Furthermore, it was highlighted that, beyond the query issued to the Claimant and his subsequent answer, the Claimant acknowledged in his letter of appeal for reinstatement, dated 2nd September 2008 [Exhibit D8], that he faced disciplinary panels set up by the Edo State Command and the Headquarters. Counsel referred the Court to paragraphs 15 and 16 of the statement of material facts, paragraphs 14 – 18 of the Defendant’s witness’s sworn statement, and paragraph 12 of the statement of defence, arguing that the Claimant was indeed given a fair hearing before the termination of his appointment.

 

6.         In addressing issue two, counsel argued that the Claimant is not entitled to any of the reliefs sought, as it is a well-established legal principle that if a claim fails, the associated reliefs must also be denied. Damages can only be awarded in cases of wrongful termination, which is not applicable in this instance. The case of Olagoke v. Ecobank Nig. Ltd [2013] 34 NLLR [Pt 101] 576 at 685-686 was cited in support of this argument. Counsel further explained that the general principle guiding the assessment of damages in contract law is restitution in integrum, which applies exclusively to cases of wrongful termination, as supported by the case of Barth Ozoana v. Public Service Commission [1995] 4 NWLR [Pt 391] 629 at 632. Moreover, relying on the case of Arinze v. First Bank [Nig] Ltd [2001] 1 NWLR [Pt 639] 738, it was contended that annual salary increments are meant to be a gesture of appreciation for past services rendered, serving as motivation for future performance. Such increments must be earned through performance and, therefore, granted in arrears rather than in advance of performance. Since the Claimant admitted during cross-examination that he had not worked for the period in question, he is not entitled to any outstanding benefits. Counsel emphasised that, having been lawfully terminated from the Defendant’s service, the Claimant has failed to establish his case; hence, all the reliefs he seeks must fail. In conclusion, the learned counsel noted that the Claimant breached the terms and conditions of his employment, as well as the Oath of Allegiance he had subscribed to, leading to a query by the Defendant, which he answered. The allegations against him were thoroughly investigated by a team of investigators, who interviewed him and asked him questions to which he provided answers. The allegations were also considered by the Defendant's senior staff disciplinary committee, which ultimately reported to the Board of the Defendant, resulting in the confirmation of his termination after finding the Claimant culpable of the allegations. Finally, it was stressed that the principle of "he who asserts must prove" applies in cases of wrongful termination. An employee must demonstrate that he was employed by the Defendant under specific terms and conditions that allow for termination under certain circumstances, per Sections 131[1] and [2] and 132 of the Evidence Act, 2011, as highlighted in Ukaegbu v. Nwololo [2009] 3 NWLR [Pt 1127] 194 at 230. Counsel submitted that the Claimant has failed to prove his case and urged the Court to dismiss the suit with substantial costs.

 

7.         Learned counsel for the Claimant nominated three issues for determination in the final written address filed on 2nd June 2023: 

 

  1. Whether the interdiction of the Claimant since 25th October, 2006 by the Defendant upon the preliminary investigation by the Edo Command of the Defendant, with the Claimant not given fair hearing at the sittings of the panel that conducted the said investigation nor given any report of the outcome of the said investigation of the allegation of professional misconduct levied against him, was not unconstitutional, null and void.

 

  1. Whether any subsequent investigations of the allegations levied against the Claimant, purportedly conducted by the panels set up by the Defendant in the absence of the Claimant, and any recommendations emanating therefrom, were not unconstitutional, null and void.

 

c.   Whether the Claimant is entitled to the reliefs sought in view of the evidence before the Honourable Court.

 

8.         Issues one and two were argued together. In addressing the issues, the learned counsel referred to paragraphs 16 and 17 of the statement of facts, which were reiterated in paragraphs 17 and 18 of the Claimant’s sworn statement, as well as paragraphs 10 to 15 of the reply to the statement of defence. Counsel argued that the Claimant was denied a fair hearing during the preliminary investigation that led to his interdiction. The Claimant had no opportunity to cross-examine the Defendant’s witnesses, who provided their evidence in the Claimant’s absence. Furthermore, the Claimant did not receive any report from the investigation conducted by the Defendant’s panels and was unaware of additional investigations carried out by the Defendant after his interdiction. It was noted that the Claimant was not cross-examined on these facts, which are therefore deemed admitted. Counsel reiterated that the investigation conducted by the Defendant’s Edo State Command, which resulted in the Claimant’s interdiction, violated the Claimant's right to a fair hearing as guaranteed under Section 36[1] of the 1999 Constitution. The learned counsel submitted that the principle of a fair hearing, outlined in Section 36[1] of the Constitution, is not limited to final determinations of a judicial nature, but also applies to administrative determinations where specific procedural rules are absent. Several cases were cited, including Aiyetan v. The Nigerian Institute for Oil Palm Research [1987] 6 SC 73 at 132-133; Zaboley International Ltd v. Omogbehin [2005] 17 NWLR [Pt 953] 200 at 220-221; and Garba & Ors v. The University of Maiduguri [1986] 2 S.C. 128 at 271. Relying on Olatunbosun v. NISER Council [1988] LPELR-2574[SC], counsel contended that the right to a fair hearing arises when there is an allegation of misconduct against a person that may result in some form of punishment, deprivation of rights, or loss of livelihood. Counsel noted that the Claimant was interdicted on 25th October 2006, with half pay [which the Defendant paid for only six months], based on a preliminary investigation report that was never provided to him. Counsel also referenced the cases of Falomo v. Lagos State Public Service Commission [1977] 5 S.C. 51 at 61-62; Baba v. N.C.A.T.C [1991] 5 NWLR [Pt 192] 388 at 414-415; Federal Polytechnic, Ede & Ors v. Oyebanji [2012] LPELR-19696[CA] 31-32; and U.B.A. Plc v. Oranuba [2014] 2 NWLR [Pt 1390] 1 at 22. 

 

9.         Counsel argued that after the Claimant was interdicted on 25th October 2006, the Defendant issued him a query on 12th February 2007, to which he responded on 14th February 2007. However, the Claimant was not informed of the proceedings of the panels that later investigated allegations of professional misconduct against him following his interdiction. He was neither present at nor invited to the panels' sessions, which constituted a breach of his right to a fair hearing. Therefore, the proceedings were deemed null and void, as established in A.G., Benue State v. Ude [2006] 17 NWLR [Pt 1008] 436 at 456. Counsel maintained that the actions taken by the panels, which investigated the Claimant in his absence and without his participation, render any decisions or recommendations made by these panels invalid. Furthermore, it was asserted that a fundamental principle in industrial relations law is that disciplinary processes should not be slow or unnecessarily prolonged; otherwise, the employer risks facing an unfavourable outcome. Counsel contended that the right to interdict an employee, such as the Claimant in this case, is not indefinite, even if it has been correctly applied by the employer, citing Mrs Dayo Buluro v. Nigerian Institute of Public Relations [2013] 30 NLLR [Pt 85] 121 at 132. Accordingly, it was concluded that the Claimant's prolonged interdiction by the Defendant, under the pretext of pending investigations conducted without his involvement, is unjustifiable, unconstitutional, and therefore null and void. Moreover, counsel argued that the termination letter dated 11th July 2007, which the Defendant claimed was given to the Claimant, is an afterthought and should be disregarded, as the Defendant has failed to provide evidence that the Claimant ever received this letter that purportedly terminated his employment. The Court was urged to resolve the two issues in favour of the Claimant, set aside the termination letter, and affirm that the Claimant's employment subsists.

 

10. In addressing issue three, the learned counsel argued that civil cases are decided based on the balance of probabilities, citing Olusanya v. Osinleye [2013] NWLR [Pt 1367] 167, Jos Metropolitan Development Board v. Moulds [Nig.] Ltd [2020] 5 NWLR [Pt 1717] 243, and Odutola v. Mabogunje [2013] 7 NWLR [Pt 1354] 522 at 563. Counsel contended that, in this case, the evidence leans in favour of the Claimant, who has presented cogent, credible, and believable evidence that is further supported by the testimony of the defence witness during cross-examination. The Court was urged to conclude that the Claimant is entitled to the reliefs sought and enter judgment for the Claimant.

 

 Preliminary objection

 

11.       The Defendant filed a notice of preliminary objection on 23rd May 2019. However, on 1st July 2025, during the adoption of final written addresses, the Defendant's counsel withdrew the application. In response, the Claimant's counsel also withdrew the counter-affidavit and written address submitted against the application. As a result, these documents were struck out and are no longer relevant to the case.

 

12.       The preliminary objection was raised in the Defendant’s final written address before addressing the substance of the case. It focused on two sub-issues: whether the Claimant’s suit, filed over 11 years after receiving his termination letter, is barred by the Public Officers Protection Act, and whether the Claimant has a viable cause of action since he has received his gratuity and enrolled for pension processing since October 2016. Counsel argued that the Claimant's action is statute-barred and urged the Court to consider the suit's commencement date, the Claimant's pleadings, and Exhibits D8 and D9. Counsel highlighted the defence witness's testimony that the notice of punishment [Exhibit D7] was sent by post and argued that the Court should determine when the Claimant became aware of his termination, even if he claims not to have received the notice. Counsel referenced Exhibits D8 and D9, asserting they indicate the Claimant was aware of Exhibit D7 when he wrote Exhibit D8 and instructed his solicitor to prepare Exhibit D9.

 

13.       Counsel argued that even if the Claimant was unaware of Exhibit D7, the response in Exhibit D10 clearly indicated that the Defendant no longer employed him. The Claimant did not deny receiving this letter but waited five years to initiate the lawsuit. The Court was asked to review Exhibit D12, a letter from the Claimant dated 26th May 2016, which stated he would turn 45 on 22nd June 2016. This prompted the Defendant to forward his details to the Pension Transition Arrangement Directorate [Exhibit D13] for pension enrolment, suggesting the Claimant knew he needed to provide this notification after receiving his gratuity. Counsel contended that the Claimant was not truthful and may have intended to deceive the Court, urging dismissal of the lawsuit with substantial costs. Counsel also requested that the Court ignore the Claimant's claim that the sum of N836,858.88 paid to him as gratuity represented unpaid salary. The learned counsel noted that, despite claiming N1,800,000.00 in arrears, the Claimant never demanded the balance after receiving the gratuity.

 

14.       In response to the preliminary objection, the Claimant's counsel conceded that actions initiated after the statutory period are statute-barred, as supported by cases such as Eboigbe v. NNPC [1994] 5 NWLR [Pt 347] 649 and Egbe v. Adefarasin [1987] 1 NWLR [Pt 47] 1. However, when evidence has been presented, the Court will also consider it, as established in Kano v. Oyelakin [1993] 3 NWLR [Pt 282] 399 and Asaboro v. Pan Ocean Oil Corp. [Nig.] Ltd [2017] 7 NWLR [Pt 1563] 42 at 67-68. Counsel argued that the Claimant’s claims pertain to ongoing interdiction, not termination, which the Defendant has inaccurately asserted. He cited Section 2 of the Public Officers Protection Act, stating that claims of continuous injury are exempt from being statute-barred, as seen in A. G., Rivers State v. A. G., Bayelsa State [2013] 3 NWLR [Pt 1340] 123 at 148 – 149. The Claimant's ongoing interdiction and unpaid emoluments create a new cause of action each month, making the action timely. The Defendant claims the Claimant ceased employment in 2007, but the Claimant denies receiving any termination notice. Thus, the burden of proof lies with the Defendant, which failed to provide satisfactory evidence, particularly regarding the alleged mailing of the notice. It was also argued that the Defendant's claim of mailing the notice was not pleaded, rendering it irrelevant. Counsel noted that the Claimant denied receipt of the termination notice. The Defendant did not cross-examine him on this evidence, which is an implied admission. Additionally, counsel contended that the Defendant’s letter dated 6th May 2013 was written after years of requests. Counsel concluded that the Claimant’s claims are exempt from being statute-barred under the Public Officers Protection Act and urged the Court to dismiss the preliminary objection. 

 

15.       In addressing the second sub-issue, counsel argued that the Defendant has not provided evidence that it paid the Claimant any gratuity or enrolled him for a pension. It was noted that the Claimant testified that he received the sum of N836,858.88 but denied any gratuity or pension enrolment. Since the Defendant did not cross-examine the Claimant on this testimony, it is considered admitted based on Gaji v. Paye [2003] 8 NWLR [Pt 823] 583. Furthermore, the Defendant failed to demonstrate that the Claimant was informed about the alleged gratuity or pension enrolment. The argument that the Claimant waived his right to further claims is misguided. Counsel highlighted the inconsistency in the Defendant’s claims, noting that if the Claimant was terminated for misconduct, it is illogical for the Defendant to pay him gratuity or enrol him in a pension. Counsel submitted that the document titled “Details of Withdrawn and Retired Personnel” does not prove that the Claimant received gratuity, and the letter to the Pension Transitional Arrangement Directorate does not confirm his pension enrolment. Counsel referenced the cases of Longe v. FBN [2010] 6 NWLR [Pt 1189] 1 and University of Lagos v. Olaniyan [1985] 2 NWLR [Pt 9] 599 to show that an employee on suspension is still considered an employee. Counsel argued that this suit is not an abuse of the Court process and urged the Court to dismiss the objection as baseless and without merit.

 

16. Jurisdiction is the lifeblood of any adjudication. If the Court lacks jurisdiction, any actions it takes regarding a case are void. This principle is upheld in cases such as Obiuweubi v. CBN [2011] 2-3 SC [Pt I] 46 at 91 and Attorney General of Kwara State & Anor v. Adeyemo & Ors [2017] 1 NWLR [Pt 1546] 210 at 239. Jurisdiction is granted to the Court by the Constitution or statute. A Court is considered competent when it is properly constituted regarding the number and qualifications of its members; the subject matter of the action falls within its jurisdiction; no factors exist that would prevent the Court from exercising jurisdiction; the action has been initiated by due process; and any conditions precedent to the exercise of jurisdiction have been satisfied. See Obiuweubi v. CBN [supra] at pages 91–94, Attorney General of Kwara State & Anor v. Adeyemo & Ors [supra], and Amakeze v. Nze Pet Company Nig. Ltd & Anor [2021] 1 NWLR [Pt 1756] 107 at 128. While the Court is properly constituted and the subject matter of the action falls within its jurisdiction, the Defendant contends that there is an aspect of the case that prevents the Court from exercising its jurisdiction. This issue pertains to the initiation of the suit outside the timeframe specified by Section 2[a] of the Public Officers Protection Act. 

 

17.       Section 2[a] of the Public Officers Protection Act provides that “Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect – 

 

[a]        the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

 

18.       This provision has received judicial interpretation. The latest case is Anolam v. The Federal University of Technology, Owerri & Ors [2025] 5 NWLR [Pt 1984] 651 at 673, 675-676, decided on 17th January 2025. The Supreme Court held that the Public Officers Protection Act applies to employment contracts. In a well-reasoned ruling, my learned brother Arowosegbe, J., in the unreported case of Dr [Mrs] Anthonia Chiebonam Ekwo v. Independent National Electoral Commission & Anor, Suit No. NICN/EN/04/2024, delivered on 15th May 2025, held that the Public Officers’ Protection Act does not apply to employment contracts. His Lordship explained that Section 2[a] of the Public Officers’ Protection Act does not regulate the relationship between public employees and public employers, as it pertains to torts rather than contracts. Instead, it is Section 7[1] of the Limitation Act that governs the time frames for filing suits related to contracts, as it specifically includes all types of contracts. It was noted that Section 2[a] of the Public Officers Protection Act aims to protect public officers, departments, agencies, and authorities that are alleged to have committed torts against third parties in non-contractual contexts during their official duties, irrespective of the status of the wronged third party. The Act does not govern the contractual relationship between public employees and their public employers. It only addresses the conduct of public officers in relation to the general public. However, based on the principle of stare decisis, I hold that the Public Officers Protection Act applies to employment contracts.

 

19.       The question, therefore, is whether this action is statute-barred. When an action is statute-barred, it means that the Court can no longer hear the case because it was filed after the time limit allowed by law. This concept is illustrated in the case of Faloyo v. Faloyo & Anor [2021] 3 NWLR [Pt 1762] 114 at 131. To determine whether the Claimant’s suit falls outside the timeframe specified by the Public Officers Protection Act, it is important to establish when the cause of action arose and compare that date with when the suit was filed. This can often be assessed simply by examining the originating process, as seen in Faloyo v. Faloyo & Anor [supra] and Abubakar v. Michelin Motor Services Limited [2020] 1 SC [Pt II] 46 at 58-60, 67. It is important to note that when a preliminary objection is taken alongside the substantive case, as is the situation here, the Court will consider all relevant facts. This may include reviewing the statement of defence, as demonstrated in Abdullahi v. Loko & Ors [2023] 6 NWLR [Pt 1881] 445 at 474. The counsel representing the Defendant argued that the cause of action arose in 2007, while the Claimant's counsel contends otherwise, asserting that the case is one of continuance of injury, which is an exception to the Public Officers Protection Act. 

 

20.       What then is a cause of action, and when does it accrue? A cause of action comprises every fact that is material to prove for the Claimant to succeed. It is a factual situation the existence of which entitles the Claimant to obtain a remedy from the Court against the Defendant. It is the entire set of circumstances which gives rise to an enforceable claim. A cause of action is the reason for the Claimant’s grievance and complaint to the Court for redress, and consists of two elements: the wrongful act of the Defendant which gives the Claimant his cause of complaint, and the consequent damage. See Thomas & Ors v. Olufosoye [1986] LPELR-3237[SC] 22-23, Ibrahim v. Osim [1988] LPELR-1403[SC] 15-16, CIL Risk & Asset Management Limited v. Ekiti State Government & Ors [2020] 12 NWLR [Pt 1738] 203 at 247, U.O.O. Nigeria Plc v. Okafor & Ors [2020] 11 NWLR [Pt 1736] 409 at 438 and Abubakar v. Michelin Motor Services Limited [supra] pages 65-66. Thus, a cause of action accrues when all the facts which the Claimant needs to prove to succeed in the action are complete. That is, when all the facts that will give rise to an enforceable claim have taken place, and there remains nothing more to be done to give a right of action to the Claimant. See Governor of Oyo State & Ors v. Ajuwon & Ors [2020] LPELR-50471[CA] 43-45.

 

21.       Parties agree that the Claimant was interdicted on 25th October 2006. Parties also agree that following the Claimant’s interdiction, he appeared before an investigative panel at the Headquarters. The Defendant maintained that the investigation report by the Head, Inspectorate Services, indicted the Claimant and recommended that the case be referred to the Senior Staff Disciplinary Committee, which was constituted on 21 March 2007. The committee found the Claimant culpable and recommended that his appointment be terminated. In a letter dated 11 July 2007, the Claimant was served with a notice of punishment, effectively disengaging him from the Defendant’s service. The Claimant denied knowledge of the proceedings of the senior staff disciplinary committee, and also denied receipt of the notice of punishment. During cross-examination, the defence witness testified that the notice of punishment was mailed to the Claimant, but did not provide evidence of the mailing. First, it is the law that a termination letter becomes effective upon service on the employee. See Eka v. Kuju [2013] LPELR-22124[CA] 16. Also, it is settled that the issue of whether a document was received or not is a question of fact to be proved by evidence. See First Bank of Nigeria Plc v. Akiri [2013] LPELR-21966[CA] 23-24. Delivery of a letter may be proved by producing a dispatch book showing receipt of the letter, evidence of dispatch by registered post, and evidence by a witness who can testify that the Claimant was served with the letter. See First Bank of Nigeria Plc v. Akiri [supra] and Nlewedim v. Uduma [1995] 6 NWLR [Pt 402] 383 at 394. Although the Defendant chose the last method, the witness could not positively testify that the Claimant received the letter or that the letter was indeed posted. Thus, I find as a fact that there is no proof of service of the notice of punishment on the Claimant.

 

22.       That is not the end of the matter. While the Claimant insists that this suit is based on his interminable interdiction, which constitutes an exception to the Public Officers Protection Act, and that he sent several letters for reinstatement, he tendered only three of such letters, marked as Exhibits 6, 7 and 8. It is unclear from Exhibit 6 whether the appeal is about the interdiction or termination of the appointment. In Exhibits 7 and 8, specific reference was made to interdiction. It is noteworthy that while the Claimant was interdicted on 25th October 2006, the three letters were written between 8 July 2010 and 26th September 2011. Exhibit 10 is the pre-action notice dated 14th May 2018, which dealt with the interdiction. Exhibit D8 is the Claimant’s letter to the Governor of Lagos State dated 2nd September 2008, which was copied to the Defendant. The letter is captioned: “Unjustifiable termination of my appointment, appeal for reinstatement into the Agency”. This letter was written about 13 months after the Defendant purportedly terminated the Claimant’s appointment, and belies the Claimant’s denial of receipt of the notice of punishment. While it is true that the Defendant failed to discharge the burden of proof of delivery of the letter to the Claimant, this letter, which pre-dated Exhibits 6, 7 and 8, points irresistibly to receipt of the notice of punishment. Paragraph one states, “It is with a great sense of humility and loyalty to constituted authority that I write on the monumental ordeal and difficulty I have been subjected to resulting from the termination of my appointment with the National Drug Law Enforcement Agency.” Eleven months later, the Claimant’s Solicitors, by letter dated 17 July 2009, petitioned the Defendant’s Executive Chairman, seeking reinstatement for the unlawful and unjustifiable termination of the Claimant’s appointment. Section 167 of the Evidence Act provides that “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case”. The natural inference from the surrounding circumstances is that the Claimant received the termination letter. Even Matthew 12:37 states “For by thy words thou shalt be justified, and by thy words thou shalt be condemned.” The Claimant would not have sought the Lagos State Governor’s intervention if he had not received the notice of termination. Therefore, he cannot feign ignorance of the termination of his appointment. Paragraphs 17 to 20 of his additional sworn statement are a bare-faced lie. 

 

23.       Therefore, this is not a case of continuing injury. The cause of action arose on 2nd September 2008. Either way, the Claimant had three months within which to commence this action. Even if, as suggested by my learned brother, Arowosegbe, J., the Limitation Act applies, the Claimant should have filed this action by August 2014. Still, the suit was filed on 18th July 2018, about 10 years after the cause of action accrued. The cause of action was complete as of 2nd September 2008. Therefore, I agree with the Defendant that this suit is statute-barred and liable to be dismissed. Assuming I am wrong, and I know I am not, I will consider the case on the merits.

 

Issue for determination

 

24.       I have considered the pleadings, evidence [both oral and documentary], and the submissions by the parties, and to my mind, the only issue for determination is whether the Claimant is entitled to judgment on his claims. 

 

25.       It is the law that he who asserts must prove. The burden of proof lies with the person who would lose if no evidence is presented. Therefore, the burden of proof is on the Claimant who initiated this suit on a set of facts that he claims entitle him to judicial relief, and who must establish those facts to have a judgment in his favour. Only when the Claimant establishes a prima facie case does the burden shift to the Defendant to prove its defence. See Sections 131[1], 132, 133[1] and 136[1] of the Evidence Act, Nsude & Ors v. Nichodemus & Ors [2025] 4 NWLR [Pt 1982] 253 at 280, Nwanne & Ors v. Okoli & Ors [2025] 2 NWLR [Pt 1976] 339 at 369, and Nduul v. Wayo & Ors [2018] LPELR-45151[SC] 51 – 53. The burden of proof in civil cases is discharged on a balance of probabilities. See Section 134 of the Evidence Act. 

 

26.       Additionally, the Claimant who seeks declaratory relief must establish his entitlement to the declaration by credible evidence and will succeed on the strength of his case, not on the weakness of the defence or admission by the Defendant. Since a declaratory relief involves the exercise of the Court’s discretion, the Claimant must place sufficient materials before the Court to justify the grant of the declaration. See Nduul v. Wayo & Ors [2018] 7 SC [Pt III] 164 at 213, U.T.C. Nigeria Plc v. Peters [2022] 18 NWLR [Pt 1862] 297 at 312, 313, and Osho v. Adeleye & Ors [2024] 8 NWLR [Pt 1941] 431 at 452. In resolving employment disputes, the Court will usually refer to the employment contract and any other stipulations incorporated or deemed to have been incorporated into the contract. See Jowan & Ors v. Delta Steel Company Ltd [2013] 1 ACELR 18 at 24, Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108, and Gbedu & Ors v. Itie & Ors [2020] 3 NWLR [Pt 1710] 104 at 126. The contract of employment is the foundation for an action for breach of an employment contract, and the success or otherwise of the case depends entirely on the terms agreed or deemed to have been agreed by the parties. See Umera v. Nigerian Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 386 and Gyubok v. The Federal Polytechnic, Bauchi & Anor [2024] 16 NWLR [Pt 1965] 515 at 549.

 

Summary of evidence

 

27.       The Claimant sought three forms of relief, testified in support of his claims, and tendered eleven exhibits, marked Exhibits 1 to 11. These exhibits are: interdiction letter dated 25th October 2006, Defendant’s letter dated 6th May 2013 refusing the Claimant’s appeal for reinstatement, commendation letter dated 6th September 1991, confirmation of appointment letter dated 29th April 1993, promotion letter dated 10th October 2003, the Claimant’s appeal letter for reinstatement dated 8th July 2010, the Claimant’s appeal letter for reinstatement dated 8th August 2011, the Claimant’s appeal letter for reinstatement dated 26th September 2011, the Claimant’s reply to query dated 14th February 2007, the Claimant’s Solicitors’ letter to the Defendant dated 14th May 2018, and notice to produce originals of specified documents dated 30th April 2021.

 

28.       The Claimant testified that he enlisted as a Narcotic Agent with the Defendant on 5th October 1990, and his appointment was confirmed by a letter dated 29th April 1993. He rose to the rank of Deputy Superintendent of Narcotics, a promotion approved by the Defendant in a letter dated 10th October 2003. Before this promotion, he served in several departments in various capacities, consistently offering his best efforts, which the Defendant commended on 6th September 1991. On 23rd May 2006, he was transferred from the Edo State Command Head Office to the Irrua Area Command in Edo State. While at the Irrua Area Command, his office received vital information from a concerned citizen in Emu Village, located in the Ubiaja Local Government Area of Edo State, regarding ongoing drug-related activities in the area. The Area Command approved the operation and assigned him to lead a crackdown against the suspected drug peddlers. On 4th September 2006, during this operation, one of his team members, Gabriel Uyi, lost his life. The Claimant had advised the deceased, who was driving the vehicle, to remain inside it on standby for any eventualities or security alerts. During the operation, they heard a gunshot, but were initially unaware of its source. They later discovered that Gabriel Uyi had been shot dead. His body was taken to Saint Camilus Hospital after the Claimant reported the incident to both his office and the local police station. Following the incident, the police conducted an investigation, clearing the team of any wrongdoing at the Ubiaja Police Station and by the Edo State Police Command. Subsequently, the Claimant received a query from the Defendant, to which he replied on 14th February 2007. He was interviewed by a panel set up by the Edo State Command. However, before the investigation was concluded and without any report from the panel, he was interdicted via a letter dated 25th October 2006. He made several appeals for reinstatement, which went unanswered. On 14th May 2018, he sent a letter demanding his reinstatement and the payment of arrears of salaries and emoluments within one month. The Defendant has refused to comply with the demands outlined in that letter, even after the one-month notice has significantly lapsed. The Claimant now seeks the relief specified in his statement of facts.

 

29.       In his additional sworn statement, the Claimant confirmed that his appointment was confirmed on 5th October 1992, in a letter dated 6th September 1995. He acknowledged receiving commendations and promotions for diligent work but denied any knowledge of the preliminary investigation report from the Edo State Command regarding Gabriel Uyi's murder on 4th September 2006. He asserted that he followed all procedures and protocols before his team conducted the operation that resulted in Uyi's death. He filed a surveillance report to the Area Commander, who approved it, and documented their movement in the station diary. After Uyi was shot, he prioritised his team's safety and called for police backup. He stated that Uyi disobeyed orders to stay in the vehicle, contributing to his own demise. The Claimant explained that the team could not evacuate their deceased colleague before police reinforcements arrived due to inadequate weapons for self-defence. He had a pistol, while his team was armed with batons. He maintained that he never received the preliminary investigation report that the Defendant claimed implicated him and asserted that he was denied a fair hearing, as he could not question the witnesses. After replying to a query on 14th February 2007, he did not receive further investigation notices, insisting that any subsequent investigations occurred without his knowledge. He also stated he was unaware of the findings from the Inspectorate Service or the Senior Staff Disciplinary Committee because he was not present at their hearings. He denied receiving the purported notice of punishment and challenged the Defendant to provide proof. He first saw that letter when the Defendant presented their statement of defence. The Claimant contends that the Defendant is attempting to terminate his appointment unjustly without valid reasons or evidence of misconduct. He highlighted key points regarding the alleged fraud, asserting that the Defendant failed to conduct a proper investigation into the circumstances surrounding Gabriel Uyi's murder. He claimed that the investigation occurred without his knowledge and that he was not provided with any investigation report. He also stated that he did not receive a Notice of Punishment as claimed by the Defendant, which would have required his acknowledgement through signature. He explained that after being suspended without reinstatement or a termination notice, he instructed his solicitors to write a letter dated 17th July 2009. Although it was incorrectly headed, the letter pertained to his suspension. The Defendant only replied on 6th May 2013, denying his reinstatement request. He contested that the sum of N836,858.88 paid to him was gratuity, stating that after his suspension on 25th October 2006, he received half of his salary for six months until payments stopped. He noted that his accumulated salary far exceeded the amount paid by the Defendant, which undermined any justification for the gratuity if he was terminated for misconduct. He clarified that he did not retire from the Defendant's service and was not retired, discrediting the Defendant's claim in a letter to the Pension Transition Arrangement Directorate dated 24th October 2016. Finally, he reiterated that he ordered Gabriel Uyi to stay in the vehicle during the operation and that Uyi’s decision to disregard this instruction contributed to his death. As a senior officer, he maintained that he was responsible for the team's safety during that operation. He asserted that the Defendant's investigation essentially amounts to a murder inquiry concerning Gabriel Uyi, which should only be conducted by the police. The Defendant’s report dated 10th September 2006, referenced in the statement of defence, supports this claim. The Claimant asserted that the administrative proceedings did not follow natural justice principles, as he was denied a fair opportunity to defend himself and cross-examine witnesses. The Defendant acted as the accuser, prosecutor, and judge in these proceedings. The Claimant maintained that the Public Officers’ Protection Act does not bar this lawsuit, as it relates to ongoing harm and bad faith by the Defendant, which is excluded under the Public Officers’ Protection Act. He believes he has a valid cause of action, making this lawsuit competent and not an abuse of the Court process.

 

30.       During cross-examination, the Claimant maintained that he is still with the Defendant since he was only given an interdiction letter on 25th October 2006. He reiterated his evidence that he did not receive the notice of punishment, and he was not paid gratuity. The Claimant admitted that he wrote to the Defendant by a letter dated 25th May 2016, and he wrote a letter for reinstatement, and received a response from the Defendant once. He confirmed that since his interdiction, he has not worked as an officer of the Defendant. The Claimant admitted that he was interdicted at Irrua of the Edo State Command. He denied facing any disciplinary panel. He was also not informed of any investigation and did not see the reports of the investigations. The Claimant stated that he filed this suit in 2018. There was no re-examination.

 

31.       The Defendant's witness, Mr Ezekiel Ngale Epeso, who is the Director of Technical Services, testified that he previously held the position of Assistant Director of Administration for the Defendant. He confirmed that he is familiar with the facts of this case and has the authority to testify on behalf of the Defendant. Mr Epeso outlined his responsibilities as Assistant Director of Administration. He acknowledged that he knows the Claimant, who served as a Deputy Superintendent of Narcotics at the Edo State Command of the Defendant until his appointment was terminated on 6th May 2007. Mr Epeso stated that the Claimant was bound by the Defendant’s Terms and Conditions of Service [NDLEA Order] 2001 [as amended] along with other Agency Regulations, Circulars, and Public Service Rules. The Claimant's appointment was confirmed on 5th October 1992. When the Claimant performed his duties in accordance with the Agency’s Rules and Regulations, he received commendations. He was promoted upon meeting the requirements, but when he was found lacking, he faced appropriate disciplinary action. On 16th October 2006, the Edo State Commander of the Defendant informed the Honourable Chairman/Chief Executive about the murder of Gabriel Uyi, a driver with the Defendant, which occurred on 4th September 2006, during a raid operation led by the Claimant, who was then serving at the Irrua Area Command in Edo State. On that day, a raid operation was scheduled for 3:00 AM. An informant named John Okoh had provided information about illicit drug activities linked to an individual named Monday Arewa. The Claimant, as the officer in charge of the operation, instructed his team that they would be intercepting a pickup van. However, on their way, they picked up the informant, John Okoh, who directed them to Monday Arewa's house for his arrest without first conducting proper surveillance or risk assessment. During the operation, the Claimant neglected his responsibility to effectively coordinate the movement of his team, leading to a disorganised approach that violated the Agency’s operational guidelines. The operational driver, Gabriel Uyi, abandoned his vehicle to fully engage in the operation, which ultimately led to his shooting and death. When Gabriel was shot, the Claimant, who was supposed to organise his team to evacuate their injured colleague, fled the scene on the Claimant's orders. By the time police reinforcements arrived and returned to the scene, Gabriel Uyi had already died. The Preliminary Investigation Report implicated the Claimant, who participated fully in the investigation. After receiving the report, the Honourable Chairman/Chief Executive instructed the Head of Inspectorate Services to conduct a further investigation. The Claimant was issued a query, which he answered, leading to the compilation of a report from the additional investigation. This report also indicted the Claimant and recommended referring the case to the Senior Staff Disciplinary Committee. The Senior Staff Disciplinary Committee was formed on 21st March 2007, and met to deliberate on the Claimant’s case. A Fact Sheet dated 19th March was also compiled to refer the case to the committee formally. At the conclusion of its proceedings, the Claimant was found culpable, and a recommendation was made for the termination of his appointment with the Agency. On 11th July 2007, the Claimant received a notice of termination of his appointment. Following this notice, the Claimant made several appeals to the Defendant for his reinstatement. On 2nd September 2008, he submitted an appeal to the office of the Governor of Lagos State and provided an unsigned copy to the Agency. Additionally, he engaged the services of ISAAC ADIATU's CHAMBERS, which, in a letter dated 17th July 2009, protested the alleged “unlawful and unjustifiable termination of Durojaiye Nicholas, S/No. 1607” to the Honourable Chairman/Chief Executive of the Defendant. In response to the Claimant's various appeals for reinstatement, a letter dated 6th May 2013 was sent to him, indicating that his appeal for reinstatement had not been approved. The Claimant officially ceased to be in the service of the Defendant on 11th July 2007. He has since received his gratuity amounting to N836,858.88. When the Claimant reached the pensionable age of 45, he sent a reminder letter to the Defendant on 25th May 2016, requesting that his pension payment be processed. Upon receipt of the reminder, the Defendant wrote to the Pension Transitional Arrangement Directorate, forwarding the Claimant's particulars for enrolment and payment of his pension in a letter dated 24th October 2016. As the officer in charge of the raid operation, the Claimant was responsible for ordering, controlling, and protecting his team members, and for evacuating them in the event of an attack. However, instead of fulfilling these duties, he fled at the sound of a gunshot, which led to the death of Gabriel Uyi. Mr Epeso stated that the police only investigated the cause of Gabriel Uyi's death and did not examine the breach of the Agency’s operational guidelines that contributed to this incident. The witness also denied that the Claimant was interdicted without an investigation or a report from the investigation panel, challenging the Claimant to provide strict proof of this assertion. He emphasised that the Claimant had been duly notified that his appeals had been unsuccessful. The Defendant provided the Claimant with ample opportunity to make both oral and written representations in his defence and ensured that he received a fair hearing during the administrative proceedings that led to the termination of his appointment, of which he was appropriately notified. The Defendant asserts that the Claimant is not entitled to any of the reliefs sought, arguing that the claims are incompetent, frivolous, and constitute an abuse of court process, with substantial costs sought against the Claimant. The Defendant tendered 13 documents marked Exhibits D1 to D13. These are the preliminary investigation report dated 10th September 2006, query dated 12th February 2007, the Claimant’s reply dated 14th February 2007, investigation report dated 13th March 2007, the Defendant’s Fact Sheet dated 19th March 2007, Staff disciplinary committee report dated 21st March 2007, Notice of Punishment dated 11th July 2007, the Claimant’s letter to the Governor of Lagos State dated 2nd September 2007, the Claimant’s Solicitors’ letter dated 17th July 2009 to the Defendant, the Defendant’s letter to the Claimant dated 6th May 2013, gratuity computation sheet, the Claimant’s letter to the Defendant dated 25th May 2016, and the Defendant’s letter dated 24th October 2016 to the Pension Transition Arrangement Directorate. 

 

32.       During cross-examination, the witness explained that he has worked with the Defendant for 33 years and is familiar with how the Defendant maintains documents. He testified that the recipient does not always endorse correspondence from the Defendant. The recipient signs for correspondence when it is delivered by hand, but does not sign if it is sent by post. The witness confirmed that the Claimant endorsed both the query and the interdiction letter. He reiterated that the Claimant was given a notice of punishment dismissing him from the Defendant’s service. When it was stated that the notice of punishment was not served on the Claimant, the witness replied, “It was served on the Claimant as far as I am concerned.” The witness was shown Exhibit D7 and told that there was nothing in it to indicate the Claimant received it; however, he responded that it was sent by post. Upon further cross-examination, the witness stated that the Defendant did not provide any evidence of mailing the letter. When it was mentioned that the Claimant denied receiving the letter, the witness responded that the Claimant applied for reinstatement, which showed he received the notice of punishment. The witness was informed that the Claimant maintained he endorsed all previous correspondence from the Defendant and was asked whether it was not necessary to provide evidence of dispatching the notice of punishment. The witness claimed he never made that statement. He admitted that Exhibits D1, D4, D5, and D6 were investigation reports. When asked whether there was any evidence that the Claimant received the reports, he said the Claimant was not entitled to receive them. When it was pointed out that there was no evidence that the Claimant participated in the panel proceedings, the witness replied that the Claimant was involved because he was interviewed during the preliminary investigation. He stated that when the report was forwarded to the Headquarters, the Claimant was queried and responded to the query. He also mentioned that the Claimant’s letter to the Lagos State Governor reinforces the fact that the Claimant was interviewed in his command. The witness admitted that he was not a member of any of the panels that investigated the Claimant, but confirmed that the Claimant was not the only one interviewed regarding the incident. When asked if he could confirm whether the Claimant attended all the panel sittings since he was not a member of the committee, the witness replied that he could not confirm this. The witness acknowledged that the Claimant wrote several appeal letters to the Defendant, but denied that these letters were based on his interdiction. He confirmed paragraph 5 of his sworn statement, stating that the Claimant was bound by the Defendant’s terms and conditions of service, other regulations, circulars, and public service rules. In response to the question about whether an officer dismissed for dereliction of duty or a serious offence is entitled to gratuity, the witness clarified that the Claimant’s appointment was terminated, not dismissed. There was no re-examination.

 

          Evaluation of evidence

 

33.       I have considered the oral and documentary evidence presented by the parties. The Claimant sought a declaration that his employment is subsisting, reinstatement, payment of his salaries, and entitlements. Both parties agree that the Defendant employed the Claimant on 5th October 1990 as a Narcotic Agent. He rose to the rank of Deputy Superintendent of Narcotics. He was interdicted by a letter dated 25th October 2006 after a failed operation that claimed the life of one of the operatives. While the Claimant asserts that he was not given a fair hearing before his interdiction, and was unaware of further investigations into the matter, and denied receipt of the notice of punishment, the Defendant insists that the Claimant was afforded a fair hearing before the termination of his appointment. The question, therefore, is whether due process was followed in the termination of the Claimant’s employment. It is settled law that he who asserts must prove. See Section 131[1] of the Evidence Act, and the case of Igwenagu v. Hon. Minister Federal Capital Territory & Ors [2025] 7 NWLR [Pt 1988] 145 at 173-174. Equally trite is that an employee who claims that his suspension or termination is wrongful has the responsibility to plead and prove the wrongfulness of the suspension or termination. To do so, the employee must outline the terms of his employment and demonstrate how the employer violated those terms, as seen in the case of Skye Bank Plc v. Adegun [2024] 15 NWLR [Pt 1960] 1 at 35. The employee’s failure to discharge this burden is fatal to his case, as established in Ningi v. First Bank of Nigeria Plc [1996] 3 NWLR [Pt 435] 220 at 234.

 

 Was the Claimant afforded a fair hearing?

 

34.       An employer inherently possesses the power to discipline an employee, which includes the suspension of the employee or termination of his appointment if reasonable grounds exist to do so, as established in Imonikhe v. Unity Bank Plc [2011] 12 NWLR [Pt 1262] 624 at 649. However, any disciplinary action taken against an employee must comply with the terms of the employee's employment contract; otherwise, it will be wrongful, and the employer may be liable for damages. See Union Bank of Nigeria Plc v. Salaudeen [2017] LPELR-43415[CA] 27-28 and U.T.C Nigeria Plc v. Peters [2022] 18 NWLR [Pt 1862] 297 at 319. Therefore, as stated earlier, an employee who complains that his employment was wrongly terminated or that his suspension is wrongful has the onus to place before the Court the terms and conditions of the contract of employment and to prove how the employer breached them. See Sections 131[1] and 136[1] of the Evidence Act, U.T.C Nigeria Plc v. Peters [supra] page 320, Ovivie & Ors v. Delta Steel Company Limited [2023] LPELR-60460[SC] pages 9 – 10 and Onwusukwu v. Civil Service Commission [2020] 10 NWLR [Pt 1731] 179 at 200, 201. 

 

35.   The evidence supporting the allegation of a lack of a fair hearing is presented in paragraphs 16, 17, and 18 of the Claimant’s sworn statement, as well as paragraphs 11 to 19 of the Claimant’s additional sworn statement and Exhibit 1. The Claimant states that he received a query from the Defendant and responded on 14th February 2007. An interview was conducted by a panel from the Edo State Command; however, before the investigation could be completed and a report issued, he was interdicted. The Claimant asserts that he was not provided with the preliminary investigation report concerning the murder of Gabriel Uyi, which the Defendant used as evidence against him. He claims he was denied a fair hearing because the Defendant's witnesses were interviewed in his absence, preventing him from cross-examining them. He only received a letter of interdiction dated 25th October 2006, with no accompanying report from the panel. After responding to a query on 14th February 2007, he did not receive any notices regarding further investigations or reports that allegedly implicated him. Furthermore, he was not informed about the proceedings of the Senior Staff Disciplinary Committee and only became aware of the notice of punishment when it was included in the statement of defence. He insists that the Defendant is attempting to unjustly terminate his employment without valid grounds, asserting that no proper investigation was conducted to support any allegations of misconduct against him. During cross-examination, the Claimant reaffirmed that he had not received the notice of punishment. He acknowledged writing a letter dated 25th May 2016 to the Defendant, but denied appearing before any disciplinary panel. He stated that he was not informed about any investigations and did not see the reports related to those investigations. Exhibit 1 is the interdiction letter, which was made pending the completion of investigations. This supports the Claimant’s testimony that he was interdicted before completion of the investigation. However, contrary to paragraph 12 of his additional sworn statement, the Claimant testified in paragraph 17 of his sworn statement that an “interview was later conducted by the panel set up in Edo State Command of the NDLEA wherein I and the other team members were interviewed.” The inference from this is that the interview of the other team members was not conducted in the Claimant’s absence. If it were otherwise, he would have said so. Therefore, I hold that paragraph 12 of the Claimant’s additional sworn statement is false.

 

36.       The Defendant's rebuttal evidence is found in paragraphs 14 through 20 of the witness's sworn statement and in Exhibits D1 through D13. This evidence shows that the Claimant failed to effectively coordinate his team during the operation, which led to the operational driver, Gabriel Uyi, abandoning his vehicle to participate and ultimately being shot and killed. When Uyi was shot, the Claimant, instead of organising the evacuation of the injured, fled the scene. By the time police reinforcement arrived, Uyi was already dead. The Preliminary Investigation Report indicted the Claimant, and he participated in the investigation. Following this, the Chairman/Chief Executive of the Defendant directed a further investigation, resulting in a query to the Claimant, which he answered. This investigation also found him culpable and referred his case to the Senior Staff Disciplinary Committee, which, after deliberation, recommended his termination. On 11th July 2007, the Claimant received a Notice of Punishment. He subsequently appealed for reinstatement, including a submission to the Governor of Lagos State and engaging Isaac Adiatu's Chambers, which protested the “unlawful and unjustifiable termination” in a letter dated 17th July 2009.

 

37.          Exhibit D1, the preliminary investigation report, supports the evidence provided by the defence witness and implicates the Claimant. As mentioned earlier, the Claimant testified before the panel. Although the Claimant claimed in paragraphs 11 and 13 of his additional sworn statement that he was not given a copy of the preliminary investigation report, he did not reference his conditions of service or any regulations that would entitle him to receive this report in his pleadings or evidence. During cross-examination, the defence witness stated that the Claimant was not given the investigation reports because he was not entitled to them. This evidence, which pertains to a contested fact, is relevant and probative, especially due to the lack of any rebutting evidence. Exhibits D2 and D3 are the query and the response to that query, respectively. The allegations against the Claimant were discreditable conduct, dereliction of duty, and behaviour prejudicial to discipline, which violated paragraphs 6[i], 13[i], and 20[ii] of Schedule 1, Part X of the NDLEA Order. Exhibit D4 is the report from the investigation conducted by the Director of Inspectorate Services. Notably, the Inspectorate Services' findings implicated the Claimant for submitting a false surveillance report. They recommended that he be charged before the Senior Staff Disciplinary Committee for misleading the Area Commander through falsehood or prevarication, in violation of paragraph 10[i], Schedule 1, Part X of the NDLEA Regulation 2001. The Claimant was not questioned about this offence and did not have the opportunity to defend himself against this allegation.

 

38.       Exhibit D5 is the fact sheet which documents the investigation reports. The allegations against the Claimant included falsehood or prevarication, dereliction of duty, and conduct prejudicial to discipline. It is noted in this judgment that the Claimant was not queried regarding the offence of falsehood or prevarication, nor was he given the chance to exculpate himself from this allegation. Exhibit D6 is the report from the Senior Staff Disciplinary Committee. Notably, the Committee did not invite the Claimant to present his case, and they ultimately found him guilty of falsehood or prevarication, an offence he never had the chance to respond to. Furthermore, the Senior Staff Disciplinary Committee based its findings solely on the investigation reports. Critically, the conclusions of the Committee did not align with the findings. At the same time, they determined that the Claimant was guilty of knowingly submitting a false surveillance report to the Area Commander. This act led to the death of the operational driver. The Committee concluded that the Claimant was guilty of all charges brought against him, indicating that they merely confirmed the findings of the investigation reports without thorough consideration. Exhibit D7 is the notice of punishment dated 11th July 2007. The letter was signed on 12th June 2007, but the termination of the Claimant's appointment was backdated to 7th June 2007. This raises the question: how could a letter be signed before it had been prepared, or how could the Claimant’s termination take effect before the termination letter was ready? It is established law that a letter takes effect upon delivery, as noted in the case of Eka v. Kuju [supra]. Therefore, the termination of the Claimant's appointment would be effective only upon receipt of the termination letter by the Claimant. In this judgment, I found no clear evidence that the notice of punishment was served on the Claimant. However, considering the surrounding circumstances, I reasonably concluded that the Claimant did receive the termination letter. This conclusion is supported by the fact that on 2nd September 2008, the Claimant wrote to the Lagos State Governor requesting a reversal of his termination. Given the absence of solid evidence about the delivery of the notice of punishment to the Claimant, I determined that it is likely that the letter was delivered on 2nd September 2008. It seems improbable that the Claimant would seek the Governor’s intervention regarding an issue he was unaware of.

 

39.          Additionally, the Claimant’s termination was based on three offences: dereliction of duty, conduct prejudicial to discipline, and falsehood. Nevertheless, the findings of the Senior Staff Disciplinary Committee only specifically identified the Claimant's culpability in relation to falsehood. There were no specific findings regarding the other offences, even though the conclusion stated that the Claimant was found guilty as charged. The law appears firmly established that a disciplinary committee vested with authority to hear and determine a particular issue, and whose decision will affect the civil rights and obligations of an employee, must comply with the rules of fair hearing. What constitutes a fair hearing depends on the circumstances of each case, as established in Arobieke v. National Electricity Liability Management Company [2017] LPELR-43461[SC] 21. Put differently, where there is an allegation of misconduct against an employee that may result in some form of punishment, deprivation of some rights, or loss of means of livelihood, it is vitally important that the employee is allowed to defend his conduct, as stated in Olatunbosun v. NISER [1988] 3 NWLR [Pt 80] 25 at 52 and Arinze v. First Bank of Nigeria [2004] 5 SC [Pt I] 160 at 170. To satisfy the rule of fair hearing, the employee must be given adequate notice of the allegations against him and allowed to make representations in his defence, as noted in the cases of Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR [Pt 457] 632 at 645 and Raji v. Wema Bank Plc [2015] LPELR-41699[CA] 28. 

 

40.         In Skye Bank Plc v. Adegun [2024] 15 NWLR [Pt 1960] 1 at 36, Ogunwumiju, JSC, in his contributing judgment, said “The employer must ensure that it does not enigmatically raise its executive stick in the oppression of the employee, and every employer must be careful not to abdicate or abuse its powers. It has been held that employers and public bodies are required by law, at all times, to act in good faith, reasonably, and fairly towards people and matters under their charge in all circumstances; the law does not permit employers to act arbitrarily. The question of “whether there was [a] fair hearing during the dismissal process?” is so weighty that, where the Court finds that an employee was not afforded a fair hearing, it renders the dismissal wrongful, entitling the employee to damages. Having said that, an employer has the duty to ensure that the internal inquiry process (or investigative panel hearing process), which was set up to hear and determine the allegations against an employee and based on which the employee was recommended for dismissal, was done within the dictates of the law. The dictates of the law as regards fair hearing are predicated on two main points. Simply put, they are that the employee must be given an opportunity to respond to the allegations against him/her and must have the opportunity to face his/her accusers, as the case may be. Also, the persons sitting in the investigative panels should not be the same as his/her accusers. Where these have not been observed, it cannot be said that the employee was afforded a fair hearing before the dismissal, therefore rendering the dismissal wrongful.” 

 

41.          While the employer enjoys absolute power to discipline an employee for gross misconduct, the exercise of that right must comply with the basic rules of fair hearing, as established in Skye Bank Plc v. Adegun [supra]. That is not the case here. The Claimant was not confronted with the allegation of falsehood or prevarication and had no opportunity to defend himself. Oputa, J.S.C. [of blessed memory], in his contributing judgment in Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] LPELR-2574[SC] 47-48, held that “The right to a fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the Appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension, in such a case, it is equally vitally important that the Appellant be given ample opportunity to defend his conduct.” See also the cases of Ahmed v. Ahmadu Bello University & Anor [2016] LPELR-40261[CA] 20-21 and Salami v. Union Bank of Nigeria Plc [2010] LPELR-8975[CA] 42. Putting the evidence on both sides on the imaginary scale and considering the surrounding circumstances, I find as a fact that the Claimant was not given an adequate opportunity to defend his conduct, and was denied a fair hearing by the Defendant in the events culminating in the termination of his appointment, rendering the termination wrongful. See Eze v. Spring Bank Plc [2011] LPELR-2892[SC] 35 and Skye Bank Plc v. Adegun [supra]. 

 

42.          The Claimant sought a declaration affirming that his employment is still active and requested an order for reinstatement. However, the Claimant failed to provide the basis for these requests in his pleadings, evidence, or written submissions. The Court cannot make assumptions in this regard. Being employed by an agency of the Federal Government does not automatically classify the Claimant as a statutory employee. Such a determination can only be made with appropriate pleadings and evidence, which are absent in this case. Consequently, while the Court finds that the termination of the Claimant’s employment was wrongful, this finding only entitles the Claimant to damages and does not warrant reinstatement. See Ziideeh v. Rivers State Civil Service Commission [2007] 3 NWLR [Pt 1022] 554 at 578, Union Bank of Nigeria Plc v. Salaudeen [2017] LPELR-43415[CA] 27-28, and U.T.C Nigeria Plc v. Peters [supra].

 

            In the premises, the sole issue for determination is resolved in favour of the Claimant.

 

Consideration of the reliefs

 

43.       The first claim seeks a declaration that the Claimant’s employment with the Defendant is still subsisting. A Claimant seeking declaratory relief must demonstrate his entitlement to such a declaration. The Claimant must succeed based on the strength of his case, rather than the weakness of the defence. The burden of proof rests on the Claimant, even in cases where there is a default of defence or an admission by the Defendant, as established in Ilori & Ors v. Ishola & Anor [2018] 15 NWLR [Pt 1641] 77 at 94. The evidence supporting a legal right must be credible, cogent, and convincing. Credible evidence is defined as evidence that is worthy of belief, as noted in Ibrahim v. Garki & Anor [2017] 9 NWLR [Pt 1571] 377 at 390 and Heritage Bank Limited v. Meens Nigeria Limited [2025] 9 NWLR [Pt 1994] 321 at 371. In this judgment, I found that the Claimant was not given an adequate opportunity to defend his conduct and was denied a fair hearing by the Defendant, leading to the wrongful termination of his appointment. However, I also found that the Claimant failed to provide a basis for this claim in his pleadings, evidence, or written submissions. The Court cannot make assumptions in this regard. Being employed by an agency of the Federal Government does not automatically classify the Claimant as a statutory employee. See lyase v. University of Benin Teaching Hospital Management Board [2000] 2 NWLR [Pt 643] 45 at 58. Such a determination can only be made with appropriate pleadings and evidence, which are absent in this case. Therefore, I concluded that although the termination of the Claimant’s appointment was wrongful, this finding only entitles the Claimant to damages and does not warrant reinstatement, as established in Ziideeh v. Rivers State Civil Service Commission [2007] 3 NWLR [Pt 1022] 554 at 578. As a result, I hold that this claim has not been established and it is consequently refused.

 

44.       The second claim is for an order reinstating the Claimant into the employment of the Defendant with immediate effect. This claim is derived from the previous claim that was denied. I restate my reasoning and conclusion from the preceding paragraph and hold that this claim remains unproven; therefore, it is denied.

 

45.       The third claim is for an order directing the Defendant to pay all the salaries, entitlements, and emoluments of the office of the Claimant from the date of interdiction till the date of judgment in this case. This claim is related to the first and second claims, which have been refused. It is also denied due to insufficient evidence. 

 

46.       It is a fundamental legal principle that where there is a wrong, there must be a remedy, as established in Mekwunye v. West African Examination Council [2020] 6 NWLR [Pt 1719] 1 at 22. Having determined that the termination of the Claimant’s employment was wrongful, this Court is obligated to provide a remedy. As previously mentioned, the Claimant is entitled to damages. According to Section 19[d] of the National Industrial Court Act, 2006, the Court may issue any appropriate orders, including the award of compensation or damages in cases covered by this Act or any National Assembly Act within the Court's jurisdiction. This principle was further supported in Skye Bank Plc v. Adegun [supra], pages 29–30. The Supreme Court, in Skye Bank Plc v. Adegun [supra], ruled that the quantum of damages to be awarded to an employee should conform to general contract law regarding damages for breach. This involves assessing the consequential losses resulting from the breach of the employment contract, taking into account factors such as the employee's monthly wage, age, and expected retirement date. In this case, since there is no evidence of the Claimant's last monthly salary, and considering the specific facts and circumstances, I believe that awarding three years' worth of salary will serve as sufficient compensation.

 

47.       As costs follow events in litigation, a successful party is entitled to recover those costs. This principle is illustrated in the cases of Egypt Air Limited v. Ibrahim & Anor [2021] LPELR-55882[CA] and Jalbait Ventures Nigeria Ltd & Anor v. Unity Bank Plc [2016] LPELR-41625[CA]. In light of this, I find that the Claimant is entitled to the costs associated with this action. The Claimant incurred approximately N23,980.00 in filing and service fees, attended seven hearings, and was represented by counsel at nine proceedings over a period of about three years and nine months in this Court, and six years since the suit was filed. Considering the depreciation of the naira, the current inflation rate, the costs of filing and serving documents, and the time taken for the Claimant to enforce his rights, I hereby award the Claimant costs of N750,000 [seven hundred and fifty thousand naira] to be paid by the Defendant.

 

48.       Despite the above, since the Public Officers Protection Act bars this suit, it is therefore dismissed. Each party shall bear his costs.

 

            Judgment is entered accordingly.

             

 

……………………………………….…..

IKECHI GERALD NWENEKA

JUDGE

        24/9/2025

 

Attendance: Parties absent

 

Appearance:

 

S.T. Awokunle Esq. for the Claimant

Obiageri Iwuchukwu Esq. for the Defendant