Justice Edith Agbakoba is dead

 

ABUJA, Nigeria – The National Industrial Court of Nigeria, NICN has announced that Justice Edith Agbakoba, who works at the Abuja division of the court is dead.

She died on Monday, November 6, 2023

Following news of her demise, President of the NICN, Hon. Justice Benedict Kanyip, OFR has ordered all offices of the court to close at 1pm for Monday  and for all all flags to fly at half-mast throughout this week in honour of the late jurist.

“May God forgive the deceased all her entire shortcomings and grant her soul rest eternal peace”, the NICN said in a statement.

Justice Edith Agbakoba’s last judgment was in July, 2023, in the case between Mrs. Eunice Ovayeun Ojapa(Claimant) and the University of Ilorin and University of Ilorin Secondary School Governing Board.

 This is her decision on the matter: “I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgment and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the Claimant is entitled to the relief sought in this suit. Before I delve into the merit of this suit I shall address a few misconceptions bandied around in the final written addresses of the parties to this suit.

“Firstly, it is apropos to note that a similar argument, as is being raised by the claimant in this case, to the effect that, in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court or criminal tribunal before disciplinary issues or action can be raised, was advanced in Ike Edward Chukwuemeka v. Enterprise Bank unreported Suit No. NICN/LA/181/2011 the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 to 17 –

“The claimant was invariably relying on the old dispensation as evinced by case law authorities such as Biishi v. The Judicial Service Commission [1991] 6 NWLR (Pt. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as Arinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. 

“The Supreme Court in same case, Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. 

“That it is, therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA reiterated and applied this principle. In the instant case, therefore, the argument of the claimant in that regard accordingly goes to no issue; and I so find and hold. 

“Secondly, the claimant had in arguing  that she was not accorded her right to fair hearing  was relying on section 36 of the 1999 CFRN (as amended), As to the provision of fair hearing, the Supreme Court, with regard to fair hearing, stated the position of the law as per their recent decision in REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410, relying on BAKARE V. LSCSC [1992] 8 NWLR (PT. 266) 641 AT 699 – 700 and EKUNOLA V. CBN [2013] 15 NWLR (PT. 1377) 224 AT 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. 

“In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body.  This court In HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS UNREPORTED SUIT NO. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017, held “that a careful reading of REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS (SUPRA) will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims – audi alterem partem and nemo judex in causa sua”. The former relates to criminal trials in Courts of Tribunals whilst the latter is the yardstick of the domestic tribunals and administrative panels. 

“In HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS SUPRA  this court went on to state that “The reliance by lawyers on section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law. Under administrative law, by judicial review, the court can always set aside any disciplinary process that does not adhere to the common law rules of natural justice”

 “This means that the claimant in contending that she was denied fair hearing by the defendants is wrong to have premised her contention on the Section 36 of 1999 CFRN, Relief a) therefore cannot be granted as couched. The Claimants only redress if any lies within the realms of Natural Law Equity and Good Conscience as per Common law. 

 “Finally, the defendant made heavy weather of the question as to the effect of the Claimant additional written address in support of her reply to the Statement on defence, the Defendants are asking the /court to discountenance the reply as not being supported by evidence. It is pertinent to point out that under an adversarial system of adjudication, once a statement of defence is filed issues are deemed to be joined, in fact it is the law that a reply document is only necessary when the statement of Defence raises fresh issues and if the desire is mainly to refute the Defence in such instances rely documents are not necessary at all. 

“The Court of Appeal had this to say in  OYEKANMI & ANOR V. MTN (2020) LPELR-50168(CA)  (PP. 50-59 PARAS. E) “A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponent’s case as required by the Rules of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case. By failing to adopt the additional witness statement on oath as was found in YUSUF & ANOR V. HWAKIS   (PP. 27-28 PARAS. D)

“Where a witness fails to adopt his written further statement, the statement cannot be used as material in the proceedings to determine the pending matter, same would be deemed abandoned”. See, NWALUTU VS. NBA & ANOR (2019) LPELR – 46916 (SC) PP. 25 – 27, PARA. B, GOAR VS. DASUN & ORS (2009) LPELR – 4205 (CA) PP. 26 – 27, PARAS. A – C, OBEYA VS. OKPOGA MICROFINANCE BANK LTD (2019) LPELR – 47615 (CA) P. 23, PARAS. B – F and IDRIS VS. ANPP (2008) 8 NWLR (PT. 1088) 1, 97 and 153.”  Per Uwa, J.C.A. the Claimant’s Additional witness statement on oath is by virtue of the above authorities deemed abandoned. I so hold”.