By Alex Enumah in Abuja
The Economic and Financial Crimes Commission (EFCC) and a director in its employment, Ayo Olowonihi, would on February 22, 2019, know their fate, in the suit filed by Olowonihi challenging his demotion by the agency.
This development followed the announcement that Justice Sanusi Kado of the National Industrial Court, Abuja Division, would deliver his judgment in the matter on that date.
Justice Kado fixed the date for judgment after counsel in the matter adopted and argued their final written addresses.
Olowonihi had instituted the legal action against the commission over his alleged demotion from grade level 17 to 16 step 7.
In the suit marked: NICN/ABJ/347/2017, the clamant wants the court to declare his demotion as well as the processes that led to it illegal, unlawful, null and void. The suit was supported by a 62 paragraph oath deposed to by the witness wherein among others he claimed he was not given fair hearing before disciplinary action was taken against him.
Hearing commenced on March 15 with the testimony of the claimant, who was his only witness in the suit while the commission opened its defence on April 30 and called four witnesses to support its case.
However, following the closure of the case of the defence on September 26, the court ordered parties to file and serve their written addresses and adjourned to November 12.
However due to official activities in the court, the matter was adjourned to November 15.
At the resumed hearing, while counsel to the defendant, Ibrahim Audu, informed the court that the defendant adopts wholly the contents of its written address and therefore, had nothing to say or add to it, counsel to the claimant, Professor Joash Amupitan (SAN) sought leave of the court to adumbrate on some of the salient issues raised in the course of hearing and in the claimant’s final address.
He reminded the court that the claimant had raised 3 issues for determination, one of which is whether the EFCC Staff Regulations Handbook 2007 (Exhibit CW1 – X1 – 112) was validly made?
Amupitan submitted that the defendant had erroneously cited Sections 131, 132, and 133 of the Evidence Act 2011, to the effect that he who asserts must prove. While acknowledging the provisions of the Evidence Act, the SAN told the court that where the assertion of the claimant is a negative assertion, the burden of proof shifts to the defendant. “Whosoever asserts the positive of a fact/issue is one with the legal burden to prove that issue”, he said.
He recalled that even when the court at the instance of the claimant issued a subpoena duces tecum, the defendant still did not provide evidence that the Staff Regulations Handbook was approved as required by Section 9 of the EFCC Establishment Act, 2004.
On the second issue, Amupitan reminded the court that the claimant has asserted that the Staff Regulations Handbook was not valid, same having not been approved by the Commission. He pointed out 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. He therefore, urged the court to declare the disciplinary procedure taken against the claimant by the defendant as contrary to the procedure laid down by law for the discipline of the claimant.
The 3rd issue raised by the claimant for determination was whether the denial of fair hearing to the claimant does not render the entire procedure null and void.
He said the claimant was accused of being behind some publications one of which was said to have maligned the person of the Acting Chairmen of the EFCC, Ibrahim Magu. “This therefore makes Magu an interested party in the dispute”, he submitted.
Amupitan stated that the claimant was arrested, queried, investigated and suspended on the orders of Magu, adding that while all defendant’s witnesses also during cross examination said they did not find anything linking the claimant to the publication, the defendant’s Senior Staff Disciplinary Committee sat over the case without inviting the claimant to hear him out.
Claimant’s counsel said, “The claimant was subsequently demoted including several other punishments on the orders of Magu. The Acting Chairman therefore became the accuser, investigator, prosecutor and judge over the matter in which he was a party”.
He concluded that there was a total failure of justice in the trial of the claimant as he was not given fair hearing.
He urged the court to protect the career of the claimant who is an employee, whose employment is with statutory flavor and therefore, does not hold his employment at the pleasure of the Acting Chairman.
The senior lawyer while asking the court to resolve all issues raised in favour of the claimant and grant the reliefs sought in the complaint, urged the Court to also grant consequential order or orders as the court may deem fit to make in the circumstance.
Justice Kado after listening to the submissions of counsel in the suit adjourned till February 22, 2019 for judgment.