Monday Goodhead Okpara & Ors v The Federal Road Safety Commission & Ors
Judge | Hon Justice O.a. Shogbola |
Judgment Date | 18 February 2015 |
Respondent | The Federal Road Safety Commission & Ors |
Appellant | Monday Goodhead Okpara & Ors |
Docket Number | . NICN/ABJ/195/2012 |
Counsel | Idris Abubakar Esq with M. I. Talle Esq and Khoni Bobai (Miss) for the Claimants. N. I. Okpor Esq with Princewill Ebere Esq, Laura Esuka Esq and Linda Egbule Esq for the Defendants. |
Court | National Industrial Court (Nigeria) |
The claimants commenced this suit by way of a complaint dated and filed on 10th July, 2012 wherein they claim against the defendants as follows:-
a. A Declaration that the purported termination of appointment of the 1st, 2nd, and 3rd, claimants is unlawful, unconstitutional, illegal, invalid, null, void and of no effect whatsoever.
b. An Order of this Honourable Court directing and compelling the defendants jointly and or severally whichever is applicable and or appropriate to reinstate the 1st, 2nd, and 3rd claimants and to also restore all their lost rights, benefits and privileges, such as salaries, promotion, etcetera.
c. Any other order(s) this Honourable Court deems fit to make in the circumstances of this case.
Attached to the complaint are the joint statement of facts, witnesses statement on Oath, list of witnesses and list of document’s to be relied upon.
The defendants filed a memorandum of appearance dated and filed on 12th September, 2014. Thereafter by a Motion on Notice granted the defendants filed and served their defence and other accompanying process. Later the defendants filed the witness statement on Oath.
The matter went on trial, the 2% claimants testified and tendered Exhibits while the defendants called five witnesses. At the conclusion of the trial parties filed their final written addresses.
In adopting their joint final addresses, the learned counsel for the defendants formulated two issues for the determination of the Honourable Court as follows:-
1. Whether the trial and termination of the claimants’ appointment was not done in accordance with the Federal Road Safety Commission Establishment Act 2007 and the Federal Road Safety Commission Regulation, maintenance of discipline rules 2005.
2. Whether the apprehension and confessional statement made by the claimants to collection of bribe from Motorists was one done under duress (use of gun).
The learned counsel for the defendants on issue 1 which is:-
Whether the trial and termination of the claimants’ appointment was not done in accordance with the Federal Road Safety Commission Establishment Act 2007 and the Federal Road Safety Commission Regulation, maintenance of discipline rules 2005.
The counsel submitted that the Federal Safety Commission Regulations on Maintenance of Discipline 2005 is the relevant law that regulates the conduct of officers of the Corps. Section 2(b) of the regulations makes the provisions of the regulation binding on all members of the corps.
By virtue of Section 3 (1) of the Regulations, the word ‘Bribe’ is defined as:-
…..any gift or material offered or received from a person or parents solicited or unsolicited before patrol and during patrol, or in the course of any official duty or assignment, intending to sway or include a person to do or omit to so something in the discharge or performance of his duty.
Counsel submitted that on the 13th day of September, 2009, the claimants were caught receiving gratification from motorists along Calabar – Akamkpa Road by the surveillance team. After several hours of close investigation and surveillance, the surveillance team devised a means to take the claimants out of the ambit of the soldiers who worked closely with the FRSC patrol team (claimants) and apprehended them.
Counsel submitted further that the sum of N13,000 (Thirteen Thousand Naira) Exhibit M5 was recovered from the socks of the PW2 (Bankong Odok) who stated that the money belonged to all of them, thereby committed an offence contrary to Section 21(e) of the Regulations.
That the claimant were taken to the Sector Commander’s office where they voluntarily gave their statements in writing denying ownership of the money (N13,000 Exhibit M5) found on PW2 (Bankong). PW2 in his written statement; admitted that the money found on him belongs to all them and pleaded for forgiveness.
Continuing, counsel submitted that the money found on PW2 (2nd claimant) even if he had denied that the money belongs to him or is for any or all the patrol team members (claimants), the presumption of the regulations on Maintenance of Discipline is that were nobody owns up for any money in excess, of N100 found in the patrol car or anywhere around the patrol members, such money shall be deemed money fraudulently obtained and the entire team upon conviction shall have their appointment terminated. So, the money would have been deemed belonging to all of them.
Counsel went further to submit that in accordance with the regulations, a BOI (Exhibit E) was set up to investigation the allegations of bribery leveled against the claimants by the surveillance team, the BO1 made their finding known by recommending that the claimants be tried by an FDC in accordance with Section 69 of the regulations.
The FDC was properly constituted (on receipt of the report of the Board of inquiry) having a Judge Advocate, a Prosecutor and 4 members namely:-
1. Kayode Olagunju, PhD (CC) ……. President
2. E. G. Dung (ACC) …… Member
3. H. N. Igwe (ACC) …… Member
4. I. Kyari (CRM) …… Secretary
5. E. E. Uzoma (SRC) …… Prosecutor
6. F. E. Ighile (DRC) …… (Judge Advocate, and
E. Odiete appeared as the defence counsel for the claimants in line with Section 64 (2) of the regulations which provides for the FDC’s constitution to hear and determine the allegations against corps members. The FDC report (Exhibit A) was tendered and relied on by both parties in this suit.
The counsel further submitted that the concept of appeal as enshrined in the FRSC Regulations on Maintenance of Discipline is not like the conventional appeal as practiced in our courts in Nigeria, this is because the appeal is not logged with another administrative court where several persons will seat, hear and review the appellant’s case.
Counsel contended that in as much as the Regulation provides for right to appeal under sub paragraph (24) of the Schedule 1 pursuant to Section 68 of the regulation which reads:-
Either party shall have a right to appeal against the finding, punishment or recommendation by the FDC to the REVIWING AUTHORITY (emphasis mine). Any such appeal shall be lodged by the appellant with the FDC that awarded the punishment within seven (7) days of the delivery of the Judgment.
Counsel said that reviewing authority in this instance, is the Corps Marshal and Chief Executive (COMMACE), no other person, since it is a case dealing with termination of appointment. He referred the court to sub paragraph (29) (d) of Schedule 1 to Section 68 of the FRSC Regulations on Maintenance of Discipline which states categorically that such appeal shall be logged with the Corps Marshal.
Continuing, the counsel submitted that the FDC complied with the regulations on all grounds and the claimant cannot be heard saying they were not given an opportunity to be heard, the regulations gave the appellate authority to hear the appeal based on the documents before it without necessarily hearing the appellant in person. Paragraph (26) (a) Schedule 1 to Section 68 of the FRSC regulation on Maintenance of Discipline provides:-
(26) On receipt of the FDC report the appellate authority shall within its powers to confirm, reduce or annul any punishment imposed in respect of any offence(s) against discipline and may:-
(a) Deal with or without hearing the appellant in person.
To the counsel for the defendants the claimants were given the opportunity to be heard by an independent and unbiased body from the stage of Board of Inquiry (BOI), Federal Road Safety Disciplinary Court (FDC) and the Appeal to the Corp Marshall.
That the claimants’ limited knowledge, understanding and or ignorance of how appeal form the FDC COMMACE works, should not be a yardstick for adjudging the hearing and subsequent termination of their appointment by the defendants as unlawful.
The claimants never complained that they were nor heard during the BOI and the FDC, their only grievance is that there was no appeal in their case. Assuming but not conceding the argument of the claimants as valid (which we totally disagree), the proper complaint should have been unlawful termination (which is not conceded) and not unlawful termination of appointment, as the court can only grant then relief in damages and not reinstatement. See the case of MALIKI V MICHAEL IMODU INSTITUTE FOR LABOUR STUDIES (2009) ALL FWLR (PT. 491) 974 CA.
To the counsel contrary to paragraph 38 of the Joint statement of fact of claimants wherein the claimants contended that the proper procedure was not followed in terminating the appointment of the claimants, the appeal logged with the Corp Marshall was heard, as stated in paragraph 4.15 supra, with emphasize once more that paragraph (26) (a) of Schedule 1 to Section 68 of the FRSC Regulations on Maintenance of Discipline 2005 allows the COMMACE to determine appeal logged with it, which is just a review (strictly speaking) of the recommendation).
The defendants counsel then submitted that sequel to the foregoing supra, the defendants laid evidence calling DW4 (Mr. A. A. Abu) who testified and tendered Exhibit A3 (response to the recommendation for the termination of appointment of the entire team) which dealt with the issue of appeal logged with Corp Marshall in this case).
The counsel submitted that the law is trite on the issue that whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See Section 131 of the Evidence Act (as amended). The claimants in this case failed to convince this honourable court that their appeal was not heard. The burden to prove the relief sought in a statement of claim to obtain Judgment lies on the plaintiff. That burden does not shift. See the case of THE ATTORNEY – GENERAL ANAMBRA STATE V THE ATTORNEY – GENERAL FEDERAL REPUBLIC OF NIGERIA (2005) 9 NWLR (PT. 931) 572. See also the case of OJOH V KAMALU (2005) 18 NWLR (PT. 958) PG. 523.
That the claimants did not inform...
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