Ahmadu Fulani Mohammed v Dg Department Of State Services

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 22 May 2020
• Respondent: Dg Department Of State Services
• Appellant: Ahmadu Fulani Mohammed
• Docket Number: NICN/IB/17/2017
• Counsel: Abdulrazaq Alpha, Esq; for the claimant I. Awo, Esq; for the defendants.
• Court: National Industrial Court (Nigeria)

1. This is a motion on notice dated 12/3/2019 and filed on the same day. It was brought pursuant to Section 9 (1) of the Official secret Act, section 190(1) of the Evidence Act 2011, Order 18 rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
2. In the motion paper the defendants/applicants are praying for:-
1. An order setting aside subpoena ad duestecum issued by this Honourable court against the 1st and 2nd defendants in this matter dated 19/2/2018.
2. An order of this Honourable Court setting aside subpoena ad ducestecum issued by this Honourable Court against the 1st and 2nd defendants in this matter dated 15th January 2019.
3. And for such order or other orders as this Honourable Court may be deemed to make in the circumstances of this matter.
3. The application is supported by a 12 paragraphs affidavit, sworn to by Jamilu Hamisu, an employee of the 2nd defendant.
4. The salient averments in the affidavit are to the effect that the documents which are to be produced are security classified document and they have not been declassified by appropriate authority. An unauthorized disclosure of such classified document to members of the public who do not have the need to know will be prejudicial to the Nigeria’s National Security.
5. The defendants/applicants also filed a written address along with the application. U. Batife, Esq; counsel for the defendants in oral adumbration relied on the depositions contained in the affidavit in support. Counsel also adopted the written address as his argument. In the written address the issues formulated for determination, are as stated below:-
a. Whether the documents sought to be produced are relevant to the facts of the claimant’s case;
b. Being the documents sought to be produced are security classified documents which have not been de-classified by the appropriate authority, whether such classified documents can be produced before this Honourable and be accessible to members of the public who do not have the need to see the documents.
6. In arguing issue 1, counsel contended that the answer is in the negative. The reason being that the documents sought to be produced are in no way relevant to the case of the claimant. The claimant's case is that of alleged wrongful dismissal from the Service of the 2nd Defendant. He claimed that the disciplinary procedure followed by the Defendants in dismissing him was faulty as he was not given adequate fair hearing to defend himself.
7. It is submitted that the disciplinary procedures for senior civil servants as in the case of the claimant are contained in the Public Service Rules of 2009. It is our submission therefore that the Nigeria Security Organization (NSO) Regulations 1981 sought to be produced in this matter is not in any way relevant to this matter. It's production will only waste the precious time and resources of this Honourable Court.
8. It is also submitted that the suspect movement book and station diary of Oyo Command, all, of March 2015 together with the investigation Report of the escape of high profile suspects from Oyo State Command of the 2nd Defendant are all documents dealing with an incident of security breach which led to the escape of suspect from custody. The documents do not have any connection with the disciplinary procedure that led to the dismissal of the claimant by the 2nd Defendant.
9. In conclusion, counsel contended that, the documents sought to be produced are not relevant to this case. Counsel urged the court to so hold and to set aside the subpoenas issued against the 1st and 2nd Defendants.
10. In arguing issue two, counsel contended that, assuming without conceding that the documents sought to be produced are relevant in this matter, being documents that are classified within the meaning of Section 9(i} of the Official Secret Act of 1962 Cap. 0.3 LFN 2010, disclosure of these documents would be prejudicial to the security of Nigeria. These documents contain details and records of sensitive operations executed by the 2nd Defendant; it contains records and identities of the operatives working under the 2nd Defendant. The documents contain the modus operandi of the 2nd Defendant which for security reasons should be not be disclosed to the public who do not have the need to know. Disclosing the information contained in such documents may put the lives of the operatives that participate in some serious operations in danger. Counsel urged the court to set aside the subpoenas issued in favour of the claimant.
11. Counsel also referred to Section 190(1) of the Evidence Act 2011, which permits the head of a Ministry, Department or an agency of the Federal or State Government to withheld permission to release any unpublished official records relating to affairs of state or give any evidence derived from such record. However, counsel was quick to observe that the proviso to the section mandates the head of Government Ministry or Agency, following an order of Court to produce to the judge the official records in question or, as the case may be, permit evidence derived from it to be given to the judge alone in chambers; and if the judge, after careful consideration shall decide, that the...