NICN - JUDGMENT
IN THE
NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE
CALABAR JUDCIAL DIVISION
HOLDEN
AT CALABAR
BEFORE:
HONOURABL MR. JUSTICE SANUS KADO
9TH
DAY OF AUGUST, 2024
SUIT
NO. NICN/CA/28/2021
BETWEEN:
Gerald Abang ………………………………………………………………………………….………
claimant
AND
1. Nigeria
Police Force
2. Inspector
General of Police
3. Commissioner
of Police, Imo State defendants
4. Police
Service Commission
JUDGMENT.
1.
Vide a general form of complaint filed on the 21/7/2021,
accompanied by statement of facts, witness statement on oath, list of
witnesses, list of documents, and photocopies of documents to be relied on, the
claimant claimed against the defendants as follows:-
a.
A declaration that the claimant’s employment has statutory flavor,
as same is regulated by statute and the extant regulations of the 1st
defendant and the defendants are bound to follow same in all material respect,
including disciplinary proceedings and the laid down procedure for termination
or dismissal of its enlisted personnel from service.
b.
A declaration that the defendant failed neglected and refused to
follow the laid down procedure and did not accord the claimant fair-hearing
when the defendants purported to dismiss the claimant from the service of the 1st
defendant.
c.
A declaration that the claimant was wrongfully dismissed from the
1st defendant’s service and the purported dismissal is illegal, null
and void.
d.
A declaration that the claimant’s employment in the service of the
1st defendant is still subsisting until formal separation; in
accordance with the due process of law.
e.
An order reinstating the claimant and restoring his full benefit
and entitlement including promotions due to him at all material time.
f.
An order mandating the defendants to compute and pay over to the
claimant all arrears of salary, emoluments, perquisite, entitlements and other
benefits accruing to the claimant covering the period of his wrongful dismissal
from 27th August, 2003 until judgment and compliance with the terms
of the judgment in this action.
IN THE ALTERNATIVE
An order directing the defendants to pay the
sum of N25,201,428.14 (Twenty-four million, two hundred and one thousand, four
hundred and twenty-seven naira, fourteen kobo only) representing the arrears of
salary due to the claimant covering the period his wrongful dismissal for 18
years, computed based on the current salary scheme, in the event that the
defendant fails to comply with the terms of relief (6) above; within 3 months
after the final judgment in this action.
g.
Cost of this action.
h.
Post judgment interest put at 10% until the liquidation of the
judgment in this action.
2. The defendants in
this suit despite having been served with the originating process commencing
this suit and hearing notices all served on them through postal service failed
and neglected to enter appearance and filed defence to the claimant’s action.
This action was fought based on the claimant’s processes as the defendant
refused to honour all invitations by the court to appear and defend the case.
3. Hearing in this
suit commenced on 8/3/2022, with the claimant testifying in proof of his case
as CW1. After adopting his witness statement on oath as his evidence, CW1
identified the documents he is relying in proof of his case, the documents were
admitted in evidence and marked as exhibits A – H.
4. The case of the claimant
as can be gleaned from his statement of facts and witness statement on oath is that
he was born on 24th November, 1969 and was enlisted into the service
of the defendants on 17th March, 1996, where he was assigned Force
No. 169930. The claimant attended and completed the requisite Basic detective
Course, at the 1st defendant’s Basic Detective School, Calabar,
between 25th May, 1999 and 7th July, 1999, where he was awarded
a certificate dated 7th July,1999 to that effect. He also attended
and successfully completed the 1st defendant’s “Unit/Operation
Course” at the 1st defendant’s Police Mobile Training College,
Maiduguri, Borno State between 1st July, 2001 and 31st
August, 2001, and was awarded a certificate to that effect. The claimant was attached
to 18 PMF (Police Mobile Force), Imo State.
5. Sometime in
April, 2003, the claimant was posted to official Quarters of Hon. Justice
Chioma Iheme Nwosu J.C.A, whilst his lordship was serving as a High Court Judge
in Imo State Judiciary, along with one Ex- Cpl
Ikpo Obioha. They carried out their job dutifully and to the best of
their ability without any complaint from His Lordship. After completing one
week in that beat, they were subsequently posted to another beat. However,
because of his satisfactory and impressive performance, after 4 weeks in
another beat, the claimant’s Squadron 2i/c, Mr.
Tolani Alausa (SP) at the behest of His Lordship mandated the claimant
and Ex-Cpl Ikpo Obioha to go back and be stationed permanently in His Lordship
quarters. The claimant pleaded with his superior officer to reconsider his
stance as Ex-Cpl Ikpo Obioha was diabetic and the claimant is a family man, but
their plea fell on deaf ears. On 19th of July, 2003 the claimant and
the said Ikpo Obioha were posted back to his Lordship Quarters permanently. The
claimant and his partner resumed work as ordered and carried out their job
dutifully and to the best of their ability.
6. On or about the
10th May, 2003, His Lordship was appointed a member of the Election
Petition Tribunal sitting then in the Federal Capital Territory, Abuja. His
lordship demanded that the claimant and his partner to go with him to Abuja and
whilst in Abuja with His Lordship, Ex-Cpl Ikpo Obioha took ill and his health
condition worsened, and continued to deteriorate with the passing of each day.
The claimant and Ikpo Obioha informed His Lordship of Ikpo Obioha’s
predicament, but, his Lordship did not respond. The claimant and partner Ikpo
Obioha were left with no option than to meet a brother judge in the panel of
the Tribunal to impress upon His Lordship to release Ikpo Obioha and call for
replacement in the light of his deteriorating health condition. His Lordship
became infuriated when her brother judge had a word with her in respect of Obioha’s
health condition and ordered the claimant and Ikpo Obioha to return back to
base, as His Lordship made arrangement for their replacement from the 1st
defendant’s Abuja Command. His Lordship in the presence of her driver one Mr.
Sabinus, ordered the claimant and Ex-Cpl Ikpo Obioha, to return to base. Consequently,
they return back to Owerri. After Several days, when it became apparent that His
Lordship would not change his mind, and considering the fact that he had proceeded to get replacement from Abuja
command of the 1st defendant, the claimant and Ex-Cpl Ikpo Obioha, reported back to base on
6th June, 2021, only to be informed by the their commanding officer
that His Lordship called to inform the commissioner of police that the claimant and the said Cpl Ikpo Obioha deserted His Lordship, left his Lordship in
Abuja and abandoned their duty post.
They were treated as defaulters for abandoning his Lordship in Abuja.
7. Their Commanding
Officer at the behest of the commissioner; immediately retrieved their arms and
ordered their detention. But, subsequently ordered the release of Cpl Ikpo
Obioha after several hours to enable him go and seek medical attention as his health
condition continued to deteriorate in detention. The claimant and Cpl Obioha
were subsequently marched to an Orderly Room Trial without a formal Charge, and
purportedly tried on a four-count Charge of: discreditable conduct, leaving
beat, disobedience to lawful order, and malingering. The Adjudicating Officer
without according them the opportunity to defend themselves found them guilty
and recommended ‘a reduction of Rank from corporal to constable” as punishment
for the alleged infractions; without a formal notification of the verdict and
sentence to the claimant. According to the claimant they were not allowed to
call witnesses in proof of their case, even when they insisted on calling His
Lordship’s driver who witnessed the whole event culminating in the charge
against them. His lordship also did not testify either by herself or proxy or
substantiated the allegation with any form of credible evidence. The claimant
was denied the opportunity of cross-examining the complainant to test the truth
and veracity of her allegation. The then commanding officer of 18 PMF Owerri,
who reviewed the Orderly Room trial proceeding purportedly, varied the
punishment from reduction of rank to dismissal. The claimant and his colleague
were consequently ordered to be “de- kitted’ and submitted as requested their uniform, and
they were verbally informed that they have been dismissed from service, without
any formal letter of dismissal issued to them. The claimant’s salary was
immediately stopped.
8. The claimant
avers further that they were not given a copy of the Orderly Room trial Proceedings even after several
demands. The delegated adjudicating officer in respect of their trial was at
the material time an Assistant Superintendent of Police- ASP Agagwa, and the
reviewing officer at the material time; who was the then Commanding Officer of
18 PMF, Owerri under who the claimant was serving: was at that material time an
Assistant Commissioner of Police ACP Austin Evabakabokun. The claimant states
that both the Adjudicating Officer and the Reviewing Officer do not have the
competence to award punishment amounting to dismissal from service for members
of the 1st defendant of the claimant’s rank. The commissioner of
Police then in-charge of Imo State approved the dismissal of the claimant, even
though the reviewing officer acted above his jurisdictional competence and in
disregard of the extant Police Regulation and the 1st defendant’s
Circular on the Powers of the Reviewing Officer.
9. The claimant kept
appealing to the defendants to review or reconsider the punishment meted on him
in disregard to the laid down procedure and the tenets of fair hearing and
natural justice. The claimant wrote several letters of appeal to the defendants
to no avail until the claimant’s letter dated 13th March, 2019
addressed to the Deputy Inspector General of Police “A” Department was
acknowledged and acted upon. Consequent upon the said letter, a signal- police
wireless message was sent to the claimant’s command to ascertain the actual
state of affairs leading to the dismissal of the claimant vide police signal
No.7370/FPM/FHQ/ABJ/VOL.12/614 DTO: 031345/09/2019. The Commissioner of Police
at that material time investigated the circumstances surrounding the dismissal
of the claimant and the finding of the investigation was relayed to the Force
Provost Marshal vide a letter with reference No. AH:9370/1MS/DFA/DCS/VOL.T8/52
dated 18th February, 2020 and signed by ACP Onyishi U. Samuel, wherein the 3rd
defendant admitted that due process was not followed in the dismissal of the
claimant and that the claimant was denied fair-hearing.
10. The claimant also
averred that out of remorse, His lordship Honourable Justice Chioma Nwosu Iheme
wrote to the defendants severally to appeal on behalf of the claimant including
the letter to the 2nd defendant dated 29th April, 2005
and, the letter dated 16th June, 2007, even though she did not admit
true state of affairs and circumstances informing her complaint. The claimant’s
solicitor wrote letter of plead to the defendants but no response.
Consequently, his solicitors instituted the instant action against the
defendants to seek redress in court in accordance with the due process of law. At
the time of the institution of this action the claimant would have risen
through to the rank of Superintendent of Police like most of his course mates
who were enlisted at the same time with him. According to the claimant based on
the extant Guidelines the claimant is eligible for promotion to the next rank
after every 3 (three) years. The claimant is not yet 60 years of age and has
not spent up to 35 years in service. The claimant will be due for statutory
retirement based on the requisite retirement age timeline in the year 2029, but
the claimants’ employment was wrongfully terminated 27th August,
2008. The claimant was a confirmed Corporal and due for promotion to the rank
of Sergeant, and he would have risen through the rank every 3 years to the rank
of Sergeant, Inspector, Assistant Superintendent of Police, and Deputy
Superintendent of Police to Superintendent of Police. The claimant avers that
by reason of the wrongful dismissal his salary was stopped and he lost all the
salaries, benefit and other perquisite of office that would have accrued to him
progressively with every promotion.
11. The claimant
states that under the extant salary structure; the claimant loss of salary is
computed and amount to the total sum of N25,201,428.14 (Twenty-Five Million,
Two Hundred and One Thousand, Four Hundred and Twenty- Eight Naira, Fourteen
Kobo Only).
THE SUBMISSION OF THE CLAIMANT
12. On 23/5/2024,
when this matter came up for adoption of final written addresses, G. R.
Onyekwere, Esq; counsel for the claimant adopted the claimant’s final written
address dated 21/9/2023 and fled on the same date. Counsel urged the court to
grant the reliefs sought by the claimant. In final written address a single
issue was formulated for determination to wit:
Whether having regards to the state of pleadings, evidence on
record and the provision of the extant laws, the claimant has proved his case
to entitle him to the reliefs sought.
13. In arguing the
sole issue for resolution counsel
submitted that it is now an established position of law that where an
employment is such that the appointment and termination is governed by statute
or contained in regulations derived from statutory provisions, such an
employment is considered as one with statutory flavor. In support of this contention
counsel relied on the case of EKSU & ORS V FAJEMBOLA & ORS (2022)
LPELR-57501 (CA) where it held:
“An employment is said to have a statutory flavor where the
appointment and the determination is protected by statute or laid down
regulations made to govern the procedure for employment and discipline of an
employee…in the event of termination strict adherence must be accorded to the
statute creating the employment and It cannot be waived,”
14. Counsel also
relied on the case of Imolome v WAEC (1992) LPELR-1500 (SC)
15. Counsel also submitted
where an employment is one with statutory flavor, any termination without
strict adherence to the statute/regulation creating the employment is
considered null and void. The supreme court puts the position more succinctly
in BAMGBOYE V UNILORIN & ANOR (1999) LPELR-737 (SC) in the following words:
“…that the only way to terminate such a contract of service with
‘statutory flavor…Is to adhere strictly to the procedure laid down in the
statute…”
16. Also, in
COMPTROLLER GENERAL OF CUSTOMS & ORS V COMPROLLER ABDULLAHI (2017)
LPELR-42081, the Supreme Court held as follows:
“The law is settled that the only way to terminate a contract of
service with statutory flavor is to adhere strictly to the procedure laid down
in the statute.”
17. Counsel further
placed reliance on the cases of CHIEF OF NAVAL STAFF & ANOR V OKPANACHI
(2022) LPELR-58273 (CA); LONGE V FBN (2010) LPELR-1793; CBN & ANOR V MRS
AGNES M. IGWILLO (2007) LPELR-835 (SC).
18. Counsel submitted
in light of the foregoing, it is evident that the claimant’s employment comes
under the category of employment with statutory flavor and that the defendants
acted in disregard of the statutory provisions as it relates to discipline of
officers and consequently renders the decision of the panel null and void. The
law applicable to the claimant’s employment at the material time is the Police
Act (1943), Cap P.19, Laws of the Federation 2004 and the Nigerian Police
Regulation, a subsidiary Legislation annexed thereto.
19. On non-compliance
with the police Act and The Nigerian Police Regulation, counsel submitted that
assuming but not conceding that the offences or misconduct levelled against the
claimant was established, the reviewing officer do not have the statutory
powers to award a punishment of dismissal. The power of the reviewing officer
is captured in section 393 of the Nigerian Police Regulation. Particularly as
captured in the 2nd schedule of the said Regulation. It is only the
Inspector General of police, Deputy Inspector General of Police, Assistant
Inspector general of police and Commissioner of police that can Award the
punishment of dismissal. In the instant case, the Reviewing officer at the
material time was an Assistant Commissioner of Police One ACP, Austin
Evabakabokun, who clearly did not have the powers to award a punishment of
dismissal, as matted out on the claimant.
20. In the same vein,
the commissioner of police had no powers to confirm an unlawfully imposed
punishment, as section 393 (iii) of the Nigerian Police Regulation is emphatic
in this regard, a reviewing officer cannot imposed a higher punishment than
that imposed by the adjudicating officer, the powers of the reviewing officer
are limited to “confirming, reduction or annulment of punishment imposed by the
adjudicating officer. In the instant case, the adjudicating officer, one ASP
Agagwa C.A awarded a punishment higher than what was awarded. It is ultra vires
the power of the reviewing officer to impose a stiffer punishment of dismissal,
which is clearly beyond his powers. This much was admitted in exhibit E by the
appropriate authorities of the defendants.
21. On the issue of
fair hearing, counsel submitted that, it is trite law that an accused person
must be allowed to exercise his right to fair hearing, it follows that any
judge or whoever has to adjudicate must allow an accused person exercise this
right as failure would render any ruling or finding void and contrary to the
rules of natural justice.
22. Counsel refers to
the celebrated case of GARBA V UNIVERSITY OF MAIDUGRI (1986)1 NWLR (pt. 18) 550
at 618, Oputa J.S.C (as he then was) expounded on ‘fair hearing’ as follows;
‘’it is my humble view that fair hearing implies much more than
hearing the appellant testifying before the Disciplinary Investigation Panel;
it implies much more than summoning the appellants before the panel; it implies
much more than other staff or students testifying before the panel behind the
backs of the appellants; it implies More than the appellants being given a
chance to explain their own side of the story. To constitute a fair hearing
whether it be before regular courts or before Tribunals and Board of inquiry
the person accused should know what is alleged against him; he should be
present when any evidence against him is tendered and he should be given a fair
opportunity to correct or contradict such evidence.’’.
23. Counsel submitted
that applying the above principle to the facts of the instant case, the way and
manner the allegations against the claimant were investigated infringes the
rule of fair hearing. The claimant in the instant case was not giving the
opportunity to defend himself by calling his witness neither was the
complainant present in any of the proceedings or cross-examined.
24. It is worthy of
note, that the specific allegation in the statement of claims has not been
controverted. The relevant authorities of the defendants upon subsequent review
also admitted in Exhibit E, as follows
“It is also worthy of note that the inability of the honorable
Judge to appear and give evidence during the trial shows that the defaulters
did not have fair- hearing”
25. The law further
states that where such a breach occurs, the court is left with no other
alternative remedy than to declare the dismissal null and void and of no
effect. See the case of FUT, YOLA V MAIWUYA & ORS (2010) LPELR-9001 (CA),
counsel urged the court to find and hold that the decision of Orderly Room
Trial is null and void and of no effect.
26. It is the
submission of counsel that the evidence before this Honorable Court is that the
Claimant was indeed employed by the 1st Defendant and throughout the
course of his employment he duly carried out his duties up until the point the
said appointment was terminated without recourse to due process of law. Indeed,
for the Claimant’s dismissal to be valid, statutory provisions must be proved
to have been observed, this was the view of the court in CHIEF OF NAVAL STAFF
& ANOR V OKPANACHI (supra).
27. It is submitted that
the Defendants on their part did not at any point in the proceedings enter
appearance or call any evidence to contrast the claimant’s evidence. ORDER 9
RULE 5(1) OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES
2017 states that:
“Where a defendant or respondent fails to file a Memorandum of
appearance within the stipulated time, or fails to file appropriate processes
in defence of the action within stipulated time, and also fails to file a
declaration of intention not to defend the action, the Court may proceed to
hear the matter and give judgment”.
28. Counsel urged the
court to find and hold that the Claimant has proved his case on the balance of
probabilities and is therefore entitled to the reliefs sought.
COURT’S DECISION:
29. I have considered
the originating process commencing this suit with all the accompanying
processes, the written and oral submission of counsel for the claimant.
30. The facts of this
case are simple and straight forward. The claimant was enlisted into the
Nigeria Police Force in 1996. He attended detective and other training course
at the 1st defendant’s institutions. The ordeal of the claimant
started when the claimant together with ex-Cpl Ikpo Obioha were posted to the
House of Honourable Justice Theresa Iheme Nwosu, JCA, when the Justice was a
High Court Judge of Imo State. Upon appointment of His Lordship to serve in the
Election Tribunal at Federal Capital Territory, Abuja, the claimant and his
colleague accompanied His Lordship to Abuja, but Ex-Cpl Ikpo Obioha took ill,
when the claimant notified His Lordship, he remained silent. Consequently, the
claimant and his colleague sought intervention of another brother judge in the
election tribunal panel. This got his Lordship infuriated and asked the
claimant and his colleague to return back to base. On their return to their
base they were detained and tried in an Orderly Room trial and they were
dismissed upon the recommendation of the reviewing officer which was contrary
to the verdict of demotion rendered by the Orderly Room trial.
31. Coming to the
determination of the claim before the court, it has been
established by a long line of decided cases that the burden of proof in civil
cases like the case at hand rests always on he who asserts. Therefore, the
burden is on the Claimant in the instant case to prove that he is entitled to
the reliefs being sought. It is when the Claimant has adduced sufficient
cogent, credible and admissible evidence establishing their claim that the
burden shift to the Defendants. This is because the Burden of proof in civil
cases or matters is not static and may shift in the course of proceedings in a case,
depending on the state of pleadings at various stages, the initial evidential
Burden of introducing evidence to prove a claim to a legal right or liability
based on the assertions of facts upon which right or liability is claimed, is
placed on the Claimant and until it is satisfactorily discharged on the balance
of probabilities or preponderance of evidence as required under section 134 of
the Evidence Act 2011, it does not shift pursuant to section 133(1) of the Act.
In this case, the Claimant is the one that desired this court to enter judgment
in his favour. Therefore, the Claimant bore the initial evidential Burden of
proving the facts he asserted and on which he based his claims, if judgment is
to be entered in his favour. See Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410;
Agu v. Nnaji (2002) 18 NWLR (Pt. 798) 103; Onwuama v. Ezeokoli (2002) 5 NWLR
(Pt.760) 353; Oyovbiare v. Omamurhonu (1999) 10 NWLR (Pt. 621) 23; Ike v.
Ugboaja(1993) 6 NWLR (Pt.301) 539; Onobruchere v. Esegine (1986) 1 NWLR (Pt.19)
799; G. & T. (Inv.) Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR (Pt. 1250)
500; UTC Nigeria Ltd. v. Phillips (2012) 6 NWLR (Pt. 1295) 136; Ikogu v.
L.P.D.C. (2009) 17 NWLR (Pt. 1171); Nduul v. Wayo (2018) 16
NWLR (Pt. 1646) 548; U.B.N. Plc v. Ravih Abdul & Co. Ltd (2019) 3 NWLR (Pt. 1659) 203.
32. In the case at hand, the defendants failed to file statement
of defence despite service on them of the originating process commencing this
suit and subsequently hearing notices were served on them. The defendants
ignored all the invitation for them to enter appearance and file defence to the
claimant’s action. The conduct of the defendants in refusing to honour the
court processes served on them clearly shows that they are not interested in
defending the case or that they do not have any defence to the claimant’s
action.
33. The scenario that
played out with the non-filing of defence is that the case is not being
contested. In other words, all the claimant’s averments and evidence led by him
at the trial are uncontroverted and unchallenged. The implications in law: is
that the defendants on record are deemed to have accepted all the averments
contained in the statement of facts as true and correct. Therefore, facts not
challenged nor controverted are deemed admitted. See Okoebor v. Police Council
(2003) 12 NWLR (Pt.834) 444. In the circumstances of this case this court is
only to grapple with the case of the claimant as there is no defence filed to
dispute what the claimant has averred and no legal representation at the trial
to have cross-examined the claimant. In Okoebo’s case Tobi J.S.C. (of blessed
memory) said at pp 470-471, that:
"In this matter, the only case before the learned trial judge was
the case of the appellant. In law he can stand or fall by his case. The
respondents did not defend the action. In most cases where a plaintiff's case
is not challenged, he succeeds. This is because the trial judge has no other
case to deal with other than the case stated by the plaintiff in his statement
of claim and in oral evidence."
34. His Lordship
continued at 473, paras A-H thus:
"The basic principle of law is that where a defendant fails to file
a defence, he will be deemed to have admitted the claim or relief in the
statement of claim. But where a paragraph of the statement of claim is
notoriously false to the common knowledge of the Court, like 10th July
is Nigeria's Independence anniversary, such a paragraph is not admissible
because it is an obvious untruth."
35. In the case of
EGESIMBA v. ONUZURUIKE (2002) LPELR-1043 (SC), the Apex Court held that:
"Where the only pleading filed is the statement of claim, absence
of statement of defence means that no issue is joined". Per AYOOLA, JSC
(P. 14, Paras. E-F).
36. Therefore, the
defendants’ failure to file defence to claim of the claimant means they have no
defence, as they have not disputed the claim of the claimant. The action of the
defendants is tantamount to an admission. It is trite law that facts admitted
need no proof. See Akhall & Sons Ltd v NDIC (2017) LPELR-41984(SC); Seepc (Nig.) Ltd. v. P.B.W. Ltd (1992) 2 NWLR (Pt.
252) 231, O.A.N. Overseas Agency (Nig.) Ltd v Bronwen Energy Trading Ltd & Ors
(2022) LPELR-57306(SC), Fatimehin v. Lawani (2014)
LPELR-23476(CA); L.S.W.C. vs. Sakamori Const. (Nig) Ltd, (2011) NWLR (Pt.1262) P.569 at
600, Paras F-H and FRN VS. Abacha (2008) 5 NWLR (Pt.1081) P.634 at 656, Para G;
Omale v Federal Ministry of Lands, Housing & Urvan Development &
Ors (2015) LPELR-25906 (CA).
37. The defendants
failed or neglected to file statement of defence and has by their conduct or
failure to file defence admitted the averments in the statement of claim which
are left unchallenged and un-contradicted or uncontroverted, see Haway v.
Mediowa (Nig.) Ltd. (2000) 13 NWLR (Pt. 683) 77, United Nigeria Insurance Co.
v. Universal Commercial & Industrial Co. (1999) 3 NWLR (Pt. 593) 17, 25;
Akibu v. Oduntan (1992) 2 NWLR (Pt. 220) 2105 226. In such circumstances, the
law does not require proof of impliedly admitted facts. And where proof is even
required only a minimal evidence would be necessary to ground the claim. See Balogun
v. UBA (1992) 6 NWLR (Pt. 247) 336 and Egbunike v. ACB (1995) 5 SCNJ 58, 78;
(1995) 2 NWLR (Pt. 375) 34. The Court, in such circumstance, has no choice or
option but, under an obligation to accept same as correct position of what claimant
has presented before the court. see American Cynamid Co. v. Vitality
Pharmaceutical (1991) 2 NWLR (Pt. 171) 15, (1991) 2 SCNJ 42, Yussuf v Unilorin (2007) LPELR-5137(CA).
38. It is the law, where a claimant files his claim raising an allegation of fact against the
defendants or one of them, such defendant(s) who do/does not admit the truth of
the allegation must file a defence to contradict, controvert, challenge or deny
the allegation. In the case at hand the defendants failed and neglected to file
defence. By operation of law they are deemed to have admitted the assertion of
the claimant and the court may peremptorily enter judgment against the
defendant. See Ajibade v Mayowa (1978) 9-10 SC 1; Okey v Aiyedun (1986) 4 SC
61; Moshood b Bayero (2001) 52 WRN 42, Emodi & Ors v
Emodi & Ors. (2013) LPELR-21221(CA), save where minimal proof is required.
39. In the case at hand since some of the reliefs being sought are
declaratory, the claimant will succeed on minimal proof. See Azenabor v.
Bayero University, Kano
40. A cursory look at the pleading and evidence of the claimant will show
that the claimant was tried in an orderly room trial as required by regulation
and at the end of trial he was only informed verbally that he had been
dismissed from service and his salary was immediately stopped. It is also in
evidence that the recommendation of the orderly room trial is that he should be
demoted from the rank of Corporal to that of Constable. But, the reviewing
officer altered the punishment of demotion to dismissal. It is also in evidence
that the claimant had severally appeal for reconsideration of his case but to
no avail even with the admission contained in exhibit E, that the orderly room
trial was fraught with irregularity as he was not accorded fair hearing as he
was denied opportunity to call witnesses and questioned his accuser.
41. The claimant being a policeman whose appointment enjoyed statutory flavour,
he is entitled to be treated in accordance with the rules and regulations governing
his employment. The only way to terminate such an appointment with statutory
flavour is to adhere strictly to the procedure laid down in the statute. See Oloruntoba-Oju
v. Abdul-Raheem (2009) 13 NWLR
(Pt. 1157) 83; Bamgboye v. University of Ilorin (1999) 10 NWLR
(Pt. 622) 290; Fakuade v. O.A.U.T.H.C.M.B. (1993) 5 NWLR
(Pt. 291) 47; Oni v. Gov., Ekiti State
Where in the termination of an employment with statutory flavour, the employer flagrantly omitted to comply with the procedure for the termination in the way and manner prescribed by any relevant statute, the termination is null and void. See Olufeagba v.Abdul-Raheem
This is because the defendants have violated the provision of section 393 of the Nigerian Police Regulation. Particularly as captured in the 2nd schedule of the said Regulation. It is only the Inspector General of police, Deputy Inspector General of Police, Assistant Inspector general of police and Commissioner of police that can Award the punishment of dismissal. In the instant case, the Reviewing officer at the material time was an Assistant Commissioner of Police- One ACP, Austin Evabakabokun, who clearly did not have the powers to award a punishment of dismissal, as meted out on the claimant.
45. Promotion from one level or position in an organisation to another is not
a right but a privilege, which is earned. An employer cannot be compelled to
promote its employee, no matter the good opinion the employee might have of
himself. Promotion is neither automatic nor as of right. See Abenga
v. B.S.J.S.C (2006) 14 NWLR (Pt.1000) 610 (P. 218, paras. B-C) Nwoye v. FAAN
(2019) 5 NWLR (Pt.1665) 193.
I.
A declaration is hereby granted that the claimant was wrongfully
dismissed from the 1st defendant’s service and the purported
dismissal is illegal, null and void.
II.
A declaration that the claimant’s employment in the service of the
1st defendant is still subsisting until formal separation; in
accordance with the due process of law.
III.
An order is hereby granted reinstating the claimant and restoring
his full benefit and entitlement.
IV.
An order mandating the defendants to compute and pay over to the
claimant all his arrears of salary, emoluments, perquisite, entitlements and
other benefits accruing to the claimant covering the period of his wrongful
dismissal from 27th August, 2003 until judgment and compliance with
the terms of the judgment in this action.
V.
Cost in the sum of N500,000.00 is hereby granted in favour of the
claimant against the defendants.
48. Judgment is
hereby entered accordingly.
Sanusi Kado,
Judge,
REPRESENTATION:
Benita Effiong,
for the claimant holding brief of Dr. Emmanuel Sanni, Esq;
No Legal Representation for the defendants.