His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court of Nigeria, Sitting in Abuja on Tuesday 26th February 2019 in a judgment delivered declared that the Economic and Financial Crimes Commission (defendant’s) staff Regulations Handbook 2007 as invalid having not been approved by the Commission as required by the provision of section 9(1)(b) of the Economic and Financial Crimes Commission, (Establishment) Act.
The court also ordered that Ayo Peter Olowonihi (claimant) be reinstated to his post as Detective Commandant with all the rights and privileges, and not as the Commandant of the defendant’s academy because granting such an order will interfere with the unfettered discretionary power of the defendant of postings of members of staff of the defendant to appropriate place of service.
The claimant on 2/2/18 filed his complaint and sought against defendant among others; A declaration that the whole process of exercising disciplinary procedure over the claimant by the acting executive chairman of the defendant beginning with the letter of query dated 22nd December 2015, the notification of suspension dated 29th December 2015 and the letter of reinstatement dated 15th December 2015 is invalid, null and void and of no effect.
A declaration that the purported letter of reinstatement dated 15th November 2017 conditionally reinstating the claimant to his job, downgrading the claimant from grade level 17 to grade level 16/7 and forfeiting the entitlement of the claimant during the two years period of his suspension is null and void.
A declaration that the reliance on the Economic and Financial Crimes Commission Staff Regulations Handbook by the defendant and the whole disciplinary procedure adopted by the defendant, in this case, is null and void.
Likewise, An order of this Honourable Court for the payment of all the salaries and entitlements of the claimant from 29th December 2015 until this case is determined.
The claimant testified for himself that on 19/11/15, he was summoned by the acting chairman of the defendant where he was accused and confronted with allegations of being behind some online publications in respect of the activities of the defendant and the person of the acting chairman but denied the allegations.
The claimant also stated that a forensic investigation on his electronic devices, including his bank account and his e-mail addresses, were conducted on the directive of the acting chairman and nothing incriminating was found.
That while the investigation was ongoing the acting chairman, demoted the claimant and ordered his redeployment from EFCC Academy to his office. On 20/11/15, the claimant received another memo redeploying him to the office of acting chairman with a directive to hand over to the most senior officer at the academy.
The claimant stated further that he submitted his response to the query and was slammed with indefinite suspension without pay.
The suspension was made pending the outcome of the investigation. For two years now he had been without salary which has made it difficult for him to meet up with his obligations.
The claimant stated that since his suspension he has not been invited to appear before any panel nor was there any communication to him until receipt of the letter of reinstatement, dated 15/11/17 on conditions that he is demoted and forfeit all his salary for the period of suspension.
He was never invited by the committee to defend himself of any allegation of ‘breach of confidence’ or any other misconduct.
During cross-examination, the defendant witness stated that the EFCC Staff Regulations Handbook was made pursuant to section 9(2) of the Economic and Financial Crimes Act, 2004, it was approved by the Commission and it applies to all staff of the commission it contains provisions on appointment, promotion, discipline of staff and other provisions on condition of service.
Counsel to the claimant submitted that the mere fact that the circulated copies of the Regulations were not signed is not enough to contend that the Regulations was not approved or is invalid and the Committee had no powers to try a management staff.
After careful evaluation of all the submissions and processes filed, the presiding Judge, Hon. Justice Sanusi Kado expressed thus;
“The only way this court or any other Court can ascertain the authenticity of piece legislation, be it substantive or subsidiary, is if it is availed of the minute and proceedings showing the approval.
“If the court is to close its eyes to issue of legality and validity and refuse to inquire into it, it will be abdicating its responsibility. Such an act will be encouraging belligerence to due process of lawmaking.
“It is also interesting to note that EFCC Staff Regulations Handbook, 2007, clearly does not have commencement date, therefore, absence of commencement date clearly heightened suspicion of its approval.
“On the issue of suspension, it is the view of this court that an employer has the right to suspend an employee. The suspension is not the same with demotion or removal from service. It is a temporary suspension of an employee from performance of his ordinary routine duties assigned to him by virtue of his employment, where the length of the period of suspension was considered to be inconsequential to nullify suspension.
In view of the foregoing, the court declared inter alia that the purported letter of reinstatement dated 15/11/17, conditionally reinstating the claimant to his job, degrading the claimant from Grade Level 17 to grade Level 16/7 and forfeiting the entitlement of the claimant during the two years period of his suspension as null and void.
“A declaration is hereby granted that the defendant’s staff Regulations Handbook 2007, is invalid having not been approved by the Commission, i.e Economic and Financial Crimes Commission as required by the provision of section 9(1)(b) of the Economic and Financial Crimes Commission, (Establishment) Act.
“An order is hereby granted setting aside the letter of reinstatement dated 15/11/17 conditionally reinstating the claimant to his job with defendant on the ground that it is invalid, null and void.” Hon. Justice Sanusi Kado ruled.
His Lordship also ordered that claimant be restored to his post as Detective Commandant, GL. 17, with all the rights and privileges attached to the Grade Level, and not to his office as the Commandant of the defendant’s academy because such an order will interfere with the unfettered discretionary power of the defendant of postings of members of staff of the defendant to appropriate place of service.
The relief seeking for payment of all salaries and entitlements of the claimant from 29/12/15 was refused due to lack of proof and uncertainty, that the absence of particularisation of this claim has rendered the relief vague and uncertain.