By Alex Enumah
The Court of Appeal, Abuja Division, on Tuesday upheld the judgment of the National Industrial Court in Abuja, which reversed the demotion of the former Commandant of the Economic and Financial Crimes Commission (EFCC) Academy, Mr Ayo Olowonihi.
The appellate court, in a unanimous decision, held that the appeal by the EFCC against the judgment of Justice Musa Kado lacked merit and accordingly dismissed it.
Justice Musa Kado, in a judgment delivered on February 26, 2019, agreed with the complainant that, his demotion did not follow due process, unlawful, illegal and should be set aside.
The judge, having set aside the demotion, ordered the EFCC to reinstate Olowonihi to his position as Detective Commandant, Grade Level 17.
The EFCC had demoted Olowonihi from grade level 17 to 16/7 in 2017, two years after he was recalled from suspension without pay.
Not satisfied with the commission’s decision, he had instituted a legal action at the Industrial Court, challenging his demotion and also prayed the court to order his reinstatement as well as payment of his entitlements held during the period of his unlawful suspension.
In the suit marked: NICN/ABJ/347/2017, the claimant in a 62-paragraph affidavit deposed to in support of the suit, said he was not given fair hearing before disciplinary action was taken against him.
Among the issues his lawyer, Prof. Joash Amupitan (SAN), raised for determination by the court include whether the EFCC Staff Regulations Handbook 2007 used for the discipline of the claimant was validly made, having not been approved by the commission.
In his judgment, the industrial court decided all three issues raised for determination in favour of the claimant.
The judge held that for the fact that the commission’s Regulation Handbook, which guides the appointment as well as disciplinary procedures of employees has not been approved by the commission renders it invalid, adding that there was no commencement date to show when it actually came into force.
Justice Kado having declared as invalid the EFCC’s handbook used in the purported discipline of the complainant, agreed with the submission of Amupitan that the defendant did not comply with the Public Service Rules which is the applicable regulation on disciplinary matters affecting the claimant who is a Director on GL 17.
Justice Kado held that while the chairman of the commission or the secretary has the right to initiate disciplinary proceedings against the claimant, it is the commission that has the power to sanction after due consultation with the Federal Civil Service Commission.
Similarly, on the issue of fair hearing, the judge agreed with the claimant that the fact that he was not given the opportunity to defend himself before the Ad hoc Committee set up to investigate him and two others rendered the whole exercise a nullity.
“There is a violation of natural justice,” the court held “the claimant’s appointment is statutory and can only be tampered with strict public service rule”.
He subsequently held that the letter of reinstatement downgrading the claimant to GL 16 is “nullified and set aside” and ordered the EFCC to reinstate the defendant to his position as Detective Commandant Grade Level 17.
Justice Kado however stated that the court cannot order the defendant to restore the claimant as Commandant of the EFCC Academy as the defendant has the right to deploy its personnel to any position it seems appropriate.
The court also refused to grant the prayers of the claimant on the payment of all his salaries and allowances within the period of the suspension on the grounds that the claimant failed to prove that he was entitled to such relief.
Displeased with the decision of Justice Kado, the EFCC then approached the appellate court to set it aside.
In the appeal marked: CA/A/163/2020, filed and argued by its lawyer, Mr Ibrahim Audu, the EFCC complained about the entire judgment of the lower court and urged the appellate court to declare it a nullity.
While on one hand he claimed that Justice Kado’s judgment was delivered well outside the 90 days as prescribed by law, on the other he claimed that the judge erred in law when he held that the EFCC’s handbook 2007 used for the discipline of the respondent was invalid as well as the decision that Olowonihi was not given fair hearing before punishment was handed down on him.
However, the Court of Appeal in its judgment in the appeal, held that the case of the EFCC lacked merit and ought to be dismissed.
In the lead judgment delivered by Justice Yargata Nimpar, the appellate court held that the lower court was right in declaring as invalid the EFCC’s handbook used in disciplining the respondent because it was not approved by the commission.
The appellate court further held that Justice Kado was right in setting aside the demotion as well as ordering the reinstatement of the respondent.
“Appeal lacks merit and it is therefore dismissed,” Justice Nimpar held.
However, when asked by journalists if the commission will appeal the judgment, the counsel to the EFCC, Mr Ibrahim Audu, simply said: “We will study the judgment and know the next step to take.”
Meanwhile, the appellate court had earlier fixed judgment for October 20, in Olowonihi’s cross appeal praying for the payment of his emoluments during the period of his purported suspension.