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 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 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.
?
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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filed a memorandum of appearance and a notice of preliminary objection, along with a written address of counsel, see pages 53 to 60 of the record of appeal; the preliminary objection was struck out on the 27th of November, 2013.

Neither of the two respondents as can be seen joined issues with the appellant by way of pleadings; and the import of this is that the trial Court had no basis or reason to bring up the issue of transfer of service or different stages of employment suo motu.
If issues had been joined by way of pleadings, and the issues of transfer of service or different stages of promotion had been raised in the pleadings, then maybe one could say the trial Court raised those issues after examining and evaluating those issues or some documents relating to them before the Court, and found justification as in MUHAMMED V. ABUBAKAR (2008) NWLR part 1076 at 156 where it was held:
“Documents tendered before the trial Court are certainly meant for scrutiny or examination by the Court. They are not tendered merely for the sake of tendering, but for the purpose of examination and evaluation.
A trial Court has an onerous duty of considering

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all documents pleaded before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comment or act on it.”
If any of the respondents had pleaded or tendered any document in relation to transfer of service or different stages of employment, the trial Court could have found some justification in raising the issue, even if none of the parties raised them specifically as issues for consideration, it is with this scenario in mind that this Court held per Inyang Okoro JCA then in BRITISH AMERICAN TOBACCO NIG. LTD V. INTERNATIONAL TOBACCO PLC & ANR (2012) LPELR 9292-CA that:
“A Court can only be accused of raising an issue suo motu, if the issue or matter of facts did not exist in the litigation: A Court cannot be accused of raising an issue or a matter of fact suo motu if the issue or matter of fact exists in the litigation… A judge by nature of his adjudicatory functions can draw inferences from stated facts in a case, and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts are introduced suo

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motu. Equally, where a judge refers to a piece of legislature or rule of Court which assists him to exercise its discretion one way or the other, he cannot be accused of introducing the rule of Court suo motu.”

The position of the law generally is that on no account should a Court raise an issue suo motu, no matter how clear it may appear to be and proceed to resolve it one way or the other without giving the parties an opportunity to be heard on the point, particularly the party that may suffer as a result of the point so raised suo motu. See EZEANYA V. OKEKE (1995) 4 SCNJ 60 @ 89; COMMISSIONER OF WORKS BENUE STATE V. DEVCON LTD (1988) 3 NWLR (PT. 83) 407 @ 420.
The trial Court in this case acted out of bounds by rising the issues of transfer of service or stages of employment, because the appellant did not raise them anywhere in his pleadings or evidence, and neither did the respondents.?
What the law frowns at is not the rising of an issue suo motu, because there are situations which may necessitate that, for example where jurisdiction is involved, because the issue of jurisdiction can be raised suo motu by the learned Judge who has placed

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before it, a process which clearly divests it of jurisdiction, but failure to afford parties the opportunity to address the Court on the issue so raised, particularly the party that may suffer as a result of the point raised, it now becomes an issue of denial of fair hearing, see MABAMIJE V. OTTO (2016) LPELR-26058-SC.
The issues raised suo motu by the trial Court unfortunately were relied upon to take a decision which has tilted the scale of justice in favour of one of the parties, the respondent in this case. On the other hand, if the issues had been irrelevant or inconsequential and have not affected the mind of the judge in arriving at the decision then it cannot be said to have occasioned a miscarriage of justice. SEE AMASIKE V. REGISTRAR GENERAL, C.A.C. (2006) 3 NWLR PT. 968 P.466 @ 489.

Having found that the trial Court raised issues suo motu without giving the parties the opportunity of addressing it on same this Court is compelled to resolve the sole issue for determination in favour of the appellant, and against the respondents.

Having resolved the sole issue for determination in favour of the appellant, and against the respondents the

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appeal succeeds, and it is hereby allowed.

The judgment of the trial Court delivered on the 2nd of June, 2014 is hereby set aside as a miscarriage of justice; the case is remitted back to the Chief Judge of the National Industrial Court for retrial by another judge.

No cost is awarded to either party.

Other Citations: (2016)LCN/8608(CA)