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.