CORAM

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PARTIES

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APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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APPEAL, ARMED FORCES LAW, CONSTITUTIONAL LAW, EVIDENCE, LABOUR LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant was an Assistant Superintendent of Customs II serving at the Tin Can Island Unit of the Lagos Command. On 23rd January, 2017, a 40 feet container No. PONU 825914-3 containing 661 pieces of pump action rifles and other dutiable items released from the Application Pool and Multimedia Terminal (APMT) Apapa Port in breach of extant Customs Clearing Procedure and Laws was intercepted by officers of the Federal Operation Unit, Zone A.

The Respondents’ case was that the subsequent investigation of the incident revealed the Appellant as one of the officers implicated in the wrongful clearing of the said container. The Appellant was robust in his rejection of any involvement. He was given a query to which he responded and alongside his other colleagues said to be involved, he appeared before the Disciplinary Panel set up on the issue.

The evidence generated against the Appellant were documentary being the outcome of a forensic examination of his previous handwriting on documents issued by him compared with those issued in respect of the irregularly cleared container. The Appellants insisted that the procedure adopted by the investigation panel was skewed against the Appellant and amounted to a breach of his right to fair hearing as guaranteed by the Constitution.

A letter of dismissal was served on the Claimant on 28th August, 2017 but dated 14th August, 2017.

Upon his dismissal, he initiated an action at the trial Court against the Respondents wherein he sought a declaration that the purported dismissal is null and void

The learned trial Judge of the National Industrial Court of Nigeria, Abuja Division then delivered a judgment wherein the Appellant succeeded in part of his sought reliefs.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 8th September, 2021 containing six grounds.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the refusal of the trial Court to consider and make pronouncement on the implication of the investigation report (Exhibit DWC) predating the forensic report (Exhibit DWE) and the reliance of the disciplinary committee on the investigation report in finding the Appellant culpable does not amount to a breach of the Appellant’s constitutional right to fair hearing?

2. Whether the Court below can exercise supervisory jurisdiction to review the proceedings and findings of the disciplinary committee set up by the management of the Nigerian Customs Service to ensure that the Appellant’s constitutional right to fair hearing is protected and not undermined?

3. Whether the decision of the learned trial Judge validating the proceedings and decision (save the purported dismissal of the Appellant as approved by the President and Commander in Chief of the Federal Republic of Nigeria) of the Respondents’ investigation panel and disciplinary committee and the reliance on the case of Hart v. Military Governor of Rivers State & Ors. (1976) LPELR-1355(SC) in remitting the case to the board of the 2nd Respondent or management for appropriate disciplinary action is not unfair to the Appellant having regard to the circumstances of this case?

 

 

 

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RATIONES DECIDENDI

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FAIR HEARING – THE IMPORTANCE OF FAIR HEARING IN EVERY PROCEEDING

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The right to fair hearing is sacrosanct to every proceeding. According to AKINTAN, JSC:

“It is settled law that the principle of fair hearing is fundamental to all Court procedure and proceedings. Like jurisdiction, the right to fair hearing is both a fundamental and a constitutional right of every party to a dispute who is to be afforded an opportunity to present his case to the adjudicating authority without let or hindrance from beginning to the end. It also envisages that the Court or Tribunal hearing a case should be fair, impartial and without showing any degree of bias against any of the parties. Every party must therefore be given equal opportunity of presenting his case.”

See O.O.M.F. LTD. VS. N.A.C.B. LTD. [2008] 12 NWLR (Pt. 1098) 412, at page 434. See also ESEZOOBO VS AJI & ORS (2016) LPELR-41289 (CA). – Per J. O. K. Oyewole, JCA

 

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EVIDENCE – THE IMPORTANCE OF EVIDENCE ABOVE ARGUMENTS OF COUNSEL

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Courts act on credible evidence adduced by the parties and cannot be swayed by arguments of counsel which were not predicated on adduced evidence. Arguments of counsel no matter how brilliant or ingenious cannot replace credible evidence. See KANO SUGAR PROCESSING CO. LTD & ANOR VS ACCESS BANK PLC & ORS (2014) LPELR-24590 (CA), CROSS RIVER PROPERTY DEVELOPMENT AND INVESTMENT COMPANY LTD VS ENOIBOR OBONGHA(2000) I NWLR (PT.670) 751 at 762-763, OJIAKO & ANOR VS NNAMENE & ORS (2013) LPELR- 21255 (CA) and NWALI V. EBSIEC & ORS (2014) LPELR-23682 (CA). – Per J. O. K. Oyewole, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF IN A CLAIM FOR DECLARATORY RELIEFS

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There is no disputing that the onus of proof of his entitlement to the declaratory reliefs herein lies on the Appellant as the Claimant. See DUMEZ NIG. LTD. VS NWAKHOBA (2008) 18 N.W.L.R. (PT 1119) 361, CHUKWUMAH VS SHELL PETROLEUM (1993) 4 N.W.L.R. (PT 289) page 512, CPC VS INEC (2011) L.P.E.L.R. – 8257 (SC) and ANYANRU VS MANDILAS LTD (2007) LPELR-670 (SC). – Per J. O. K. Oyewole, JCA

 

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FORENSIC EVIDENCE – DUTY OF A PARTY CHALLENGING FORENSIC EVIDENCE

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A party desiring to challenge expert forensic evidence cannot do so by his mere ipse dixit but must discredit the adduced expert evidence and produce contrary evidence of another expert. See ODULAJA VS HADDAD (1973) 11 SC 357, UNION BANK VS OGBOH (1995) 2 NWLR (PT 380) 647, SHELL DEV. CO. LTD. VS OTOKO (1990) 6 NWLR (PT 159) 693, YA’U VS DIKWA (2000) LPELR-10138 (CA), UNITY BANK PLC VS IDEMUDIA (2016) LPELR-40823 (CA), and ORIENT PHOTO NIG LTD VS ECO BANK PLC (2018) LPELR-44764 (CA). – Per J. O. K. Oyewole, JCA

 

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COURTS – DUTY AND CONDUCT OF COURTS REGARDING EXISTING LAWS

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The Court takes judicial notice of all existing laws pursuant to Section 122 of the Evidence Act whether or not such law was brought to its attention. See ELITE STORES (NIG) LTD & ANOR VS UBN PLC & ANOR (2021) LPELR-55031 (CA). – Per J. O. K. Oyewole, JCA

 

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CUSTOMS SERVICE – THE CREATION OF THE NIGERIAN CUSTOMS SERVICE

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The 2nd Respondent is a creation of Statute with a composition which includes statutory membership as stipulated in Section 2 of its establishment Act. See CBN VS. LIDAN ENGINEERING LTD & ORS (2021) LPELR-52622 (CA). – Per J. O. K. Oyewole, JCA

 

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EXECUTIVE POWERS – WHERE THE EXECUTIVE POWERS OF THE NIGERIAN FEDERATION IS VESTED

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The executive powers of the Nigerian Federation is vested in the President pursuant to Section 5(1) of the Constitution of the Federal Republic of Nigeria (as amended) which provides thus:

1) Subject to the provisions of this Constitution, the executive powers of the Federation –

(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

Section 5(1)(a)reproduced above provides that the executive powers thus vested in the President may be exercised through Ministers of Government. One of such Ministers is the Minister of Finance statutorily made the Chairman of the 2nd Respondent by Section 2(1)(a) of the Establishment Act of the 2nd Respondent. This ultimately traces the control of the affairs of the 2nd Respondent to the President who approved the dismissal of the Appellant. – Per J. O. K. Oyewole, JCA

 

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ARGUMENTS – THE EFFECT OF ELOQUENT ARGUMENTS DEVOID OF CREDIBLE EVIDENCE

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Regardless of their persuasiveness or craftsmanship, arguments of Learned Counsel cannot override credible evidence. Even the most compelling arguments cannot substitute for evidence. Any pleading devoid of credible evidence, irrespective of its eloquence, carries no weight in the Court’s quest for the truth. See the case law authorities of MAZI OKWUDILI NWA-ANYAJIKE & ANOR VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2023) LPELR-60317(SC) and SPDC (NIG) VS EKWEMS & ORS (2022) LPELR 61081 (SC) (PAGES 54- 55 AT PARAS F). – Per A. A. I. Banjoko, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. National Industrial Court Act

4. Nigerian Custom Service Board Act

 

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