Imoudu Abudu Sule V. Police Service Commission & Anor (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A.

This is an appeal against the decision of the National Industrial Court of Nigeria, Abuja, presided by Honourable Justice E.D.E Isale, delivered on the 2nd of June, 2014; wherein the appellant claimed the following reliefs:
1. A Declaration that the directive by the Assistant Inspector General of Police (AIG) Zone 7 that the claimant proceed on retirement is ultra vires the powers of the AIG and in clear breach of the claimant’s contract of employment.
2. A Declaration that the letter by the 1st Defendant dated 10th July, 2012 is wrongful, null and void and of no effect whatsoever.
3. A Declaration that the claimant?s appointment into the Nigerian Police is with effect from 15th March, 1988 and consequently his year of retirement is 2018 when he attains the age of sixty (60) years in accordance with the Civil Service Rules.
4. An Order setting aside the directive of the AIG Zone 7 that the claimant proceed on retirement from the services of the Nigeria Police Force with effect from 1st October, 2011 and that of the 1st Defendant dated 10th July, 2012.
5. An Order

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declaring that the claimant is still in the employment of the 1st defendant and consequently directing the 1st and 2nd defendants to assign claimant to a duty post forthwith.
6. An Order that the claimant be promoted/elevated forthwith to the rank of Assistant Commissioner of Police or any higher appropriate rank by the date of judgment which said promotion is overdue but unlawfully denied him due to the directive of the AIG Zone 7 and letter by the 1st Defendant dated 10th July, 2012.
7. An order that the claimant be paid all his salaries and emoluments up to date from March, 2012.

Dissatisfied with the decision the appellant appealed by a Notice of Appeal filed on the 17th of June, 2014; the ground of appeal without the particulars is as follows:
GROUND ONE:
The learned trial judge erred in law by holding thus:
“There are situations such as that brought up by the claimant in this suit when an individual serves in Government, even where for instance he first works for the State Government and then transfers to the Federal, or whether employed as a Soldier and then later a police man. The question common to all, such as the Court

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ask now is: Do these different states of employment enlarge the statutory provisions of 35 years or the age of 60 years whichever comes first. In other words; can mandatory provisions of 35 years be enlarged?” Whereas the case presented by the Appellant was that he resigned his employment as Rank and File and was appointed as Cadet Assistant Superintendent of Police with effect from 15th March 1988 with 1st October 2018 as his date of retirement and the trial Court did not afford the Appellant any opportunity of being heard on the question of transfer of service or different states of employment and thereby breaching the Appellant’s Constitutional right to fair hearing guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and his occasioned a miscarriage of justice.

From this ground a sole issue for determination was formulated for the appellant as follows:
Whether raising the issue of transfer of service or different stages of employment suo motu by the trial Court and reaching a decision on same without affording the claimant the opportunity to address the Court on it does not amount to a denial of the appellant’s

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right to fair hearing.

This appeal is heard on the appellant’s brief alone, by an order of this Court praying for same, granted on the 4th of February, 2015, the respondents having failed or neglected to file their brief of argument in response, even after being served notice.

It is submitted for the appellant that raising an suo Motu without affording the parties an opportunity to be heard amounts to a miscarriage of justice because it is a denial of fair hearing; learned counsel referred the Court to ROCKSHELL INTERNATIONAL LTD V. B.Q.S. LTD (2009) 12 NWLR part 1156 at 667, AMADI V. CHIDA & ORS (2009) 10 NWLR part 1148 at 134, ARAKA V. EJEAGWU (2000) 15 NWLR part 692 at 700.

That also a Court should not set up a different case for parties than they set up for themselves; learned counsel referred the Court to OGUNDELE V. AGIRI (2009) 18 NWLR part 1173 at 252 and A.P.G.A V. UBA (2012) 11 NWLR part 311 at 352.
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It is important to note that the 1st respondent did enter appearance throughout the trial, and the 2nd respondent only entered appearance in response to a letter dated 10th May 2013, see page 44 to 45 of the record of appeal, and

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