MRS MERCY THANKGOD ADEJOH -VS- NATIONAL TEACHERS INSTITUTE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

DATE: MAY, 25^TH 2017 SUIT NO: NICN/LKJ/07/2014

BETWEEN

MRS MERCY THANKGOD ADEJOH ……. CLAIMANT

AND

NATIONAL TEACHERS INSTITUTE COUNCIL ……. DEFENDANT

REPRESENTATIONS

1) EMEJE ARUWA, Esq for the Claimant.

2) NATHAN DANDIEN, Esq for the Defendant.

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a General Form of Complaint dated 28^th November, 2014 and filed same day. The Claim was later amended by Amended Statement of Claim dated 4^th July, 2016 and filed same day.

The reliefs sought by the Claimant are as follows:

A DECLARATION that the dismissal of the Claimant from the employment of the National Teachers Institute was wrongful.
AN ORDER reinstating the Claimant to the service of the National Teachers Institute.
AN ORDER awarding general damages of N25,000,000.00 (Twenty Five Million Naira) against the Defendant for wrongful dismissal of the Claimant from service.
The cost of this action.

SUMMARY OF FACTS

The Claimant who was employed by the Defendant in 2001 and confirmed in 2003, was a staff of the Defendant until her purported dismissal by the Defendant vide the instrument dated 30^th May, 2014. The circumstances surrounding her dismissal started when she received a call from an unknown caller sometime in February, 2014 to which questions on when she was employed and the last time they typed results were asked. To these she replied she was employed in 2002 and the last time they typed result was in 2010. This led to a query and appearance before a disciplinary committee on which she deviated from her earlier response on the phone and stated rather that the last time results were typed was in 2006. This led to series of event that culminated in her dismissal.

On their part, the Defendant, while admitting that Claimant was their staff until her dismissal, states that it was one Mr. S.A Kolawole, the then Director of Examination, Research and Academic Services that called the Claimant as part of their investigation into the fraudulent issuance of results in the Kogi State Office of the Defendant. This investigation led to the culpability of the Claimant thereby resulting in her dismissal.

COMMENCEMENT OF HEARING

Hearing commenced on the 29^th October, 2015 to which the Claimant testified for herself as PW1 through whom they tendered all their exhibits. They thereafter closed their case on 10^th February, 2016.

Defendant opened their defence on 24^th May, 2016 by calling their sole witness, one Yakubu Badamasi through whom they tendered all their exhibits. Thereafter, they closed their case.

DEFENDANT’S FINAL WRITTEN ADDRESS

In Defendant’s final written address dated 27^th June, 2016 and filed 28^th June, 2016, Counsel on behalf of Defendant formulated three (3) issues for determination, that is:

Whether from the state of pleadings, evidence and circumstances of this case, the dismissal of the Claimant from the Defendant’s employment was wrongful.
Whether the Claimant is entitled to be reinstated to the employment of the Defendant.
Whether the Claimant is entitled to the grant of her Claim for general damages in the sum of N25,000,000.

ARGUMENT

ON ISSUE 1

Whether from the state of pleadings, evidence and circumstances of this case, the dismissal of the Claimant from the Defendant’s employment was wrongful.

Learned Counsel to Defendant submits that a declaratory relief as captioned in the first claim of the Claimant requires that a party seeking same place sufficient facts before the Court for the grant of same. He refers Court to Makanjuola V. Ajilore (2001) 12NWLR (Pt.727) 416 @437 Paras A – C; Section 131 (1) of the Evidence Act, 2011

It is the submission of Learned Counsel that the proof of this case rests squarely on the Claimant. Therefore, the burden of proving that Claimant was not in her right frame of mind when she responded on the phone to Mr S.A Kolawole that she was employed in 2002 and the last time they typed result was in 2010 rests on her. Learned Counsel contended further that though it is not in dispute that Claimant was employed in 2001 and her employment was confirmed in 2003, Claimant failed to tender these letters which should contain the terms of her employment before this Honourable Court. He refers to Exhibit A and A2 tendered by the Claimant as employment letter and confirmation of employment letter with the name “Madam Ogah Mercy Ojoagefu” and Ogah M. Ojoagefu (Mrs) in Exhibits A1 and A2 respectively as not belonging to the Claimant whose name on the process before Court is stated as Mrs Mercy ThankGod Adejoh. Therefore, Exhibits A1 and A2 go to no issue and lack evidential probative value and Court should reject and expunge them from the records of the Court. He refers Court to N.I.P.C V. Thompson Organisation (1969) 1 All NLR 134 @138 – 139; University of Ilorin (1999) 10NWLR (Pt.622) 290 @327 Para. E

While referring Court to paragraphs 26, 27, and 28 of Chapter 1of Exhibit B as well as Exhibits G1 and G2, Learned Counsel submits that claimant was not only found culpable of the allegations against her but she has failed to prove, on the balance of probability that her dismissal from the services of the Defendant was wrongful.

He therefore urged the Court re resolve this issue in the negative against the Claimant.

ON ISSUE 2

Whether the Claimant is entitled to be reinstated to the employment of the Defendant

Learned Counsel submits that Court can only order reinstatement in employment with statutory flavour and Court will not order reinstatement in master – servant employment. He refers Court to CBN V. Igwilo (2007) 4 -5 SC 154 @pg.173 Lines 9 – 30.

On what employment with statutory flavour is, he refers Court to the dictum of Per Tobi, JSC in Idonibu-Obu V. NNPC (2003) 1SC (Pt.1) 40 @ Pg. 72 Lines 7 – 39 as follows:

An employment is said to have statutory flavour if the employment is said to be directly governed or regulated by a statute or a section or sections of the statute delegate powers to an authority or body to make the regulations or conditions of service as the case may be. In the case of the latter, the section or sections of the statute must clearly and unequivocally govern or regulate the employment of the Plaintiff and must be unmistakably clear in the provision as to delegated legislation. The regulations or conditions of service must be implicitly borne out of the section or sections delegating legislation or donating the authority. In other words, there must be a clear nexus between the delegating section or sections and the regulations or conditions of service conveying a legal instrument or a document which is of similar content. In such situation, the regulations or conditions of service must commerce with the provision of the enabling statute; something to the following effect or purport, and as it relates to this appeal:

“In exercise of the powers conferred by Section 4(1) of the National Petroleum Corporation Act, 1977 as amended, and of all powers enabling me in that behalf, I hereby make the following Regulations and or Conditions of Service.

Learned Counsel submits that though it is not in dispute that National Teachers Institute is a statutory body, that does not mean, however, that all its employee enjoy statutory flavour. He refers Court to Idonibu-obu V. NNPC (supra) @58.

That the National Institute Act which established the Defendant did not make any provision regulating the employment of the Claimant. Furthermore, Exhibit B which is Defendant’s Staff Regulations and Conditions of Service is not made pursuant to the National Teachers Institute Act or any statutory provision. Therefore, Claimant employment does not enjoy statutory flavour.

ON ISSUE 3

Whether the Claimant is entitled to the grant of her Claim for general damages in the sum of N25,000,000.

Learned Counsel submit that Claimant was not wrongfully dismissed from office but in the unlikely event that the Court finds otherwise, it is the submission of Learned Counsel that damages due the Claimant is from the period of notice of termination of employment till the date of reinstatement. He refers Court to CBN V. Igwillo (supra) @179 Lines 15 – 25; Isievwore V. NEPA (2002) 13NWLR (Pt.784) 417 @437 Paras G – H. He also refers Court to the dictum of Per Onnoghen JSC in Ativie V. Kabel Metal Nig. Ltd (2008) 5 – 6 SC (pt.11) 47 @ 70 – 71 Lines 10 – 30.

Flowing from the foregoing, it is the submission of Learned Counsel that Claimant is not entitled to her claim of N20,000,000 and this Honourable Court should refuse to grant damages in the said sum or any other amount.

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated 27^th October, 2016 and filed 28^th October, 2016, Learned Counsel on behalf of Claimant formulated four (4) issues for determination, that is:

Whether the Defendant breached the mandatory requirement of fair hearing and the provisions of Paragraph 27(ii)(g) of the National Teachers Institute Staff Manual and conditions of service as well as Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) so as to render the dismissal of the Claimant null and void

Whether the allegation that the Claimant was involved in fraudulent issuance of statement of results to undeserving students of the Defendant being criminal in nature was proved beyond reasonable doubt as to justify her dismissal from service by the Defendant.

Whether the Claimant has proved her case to entitle her to the judgment of this Court.

Whether this Honourable Court can rightly grant the reliefs sought by the Claimant and order her reinstatement.

ARGUMENT

ON ISSUE 1

Whether the Defendant breached the mandatory requirement of fair hearing and the provisions of Paragraph 27(ii)(g) of the National Teachers Institute Staff Manual and conditions of service as well as Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) so as to render the dismissal of the Claimant null and void

Learned counsel on behalf of Claimant submits that the Defendant breached the mandatory requirement of fair hearing and the provision of Paragraph 27(ii)(g) of the National Teachers’ Institute Staff Regulations and Conditions of Service.

That for an employer to lawfully dismiss an employee for wrongdoing, such an employer must abide by or comply with the mandatory requirements of natural justice which includes affording such an employee the right to fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended). He also refers Court to the decision in Olaniyan V. University of Lagos (1985) 2NWLR (Pt.9)599 @623 Para.H; Shitta-Bay V. FCSC (1981) 12 NSCC 26.

That from the facts and evidence before this Honourable Court, David Arome, a student who testified that the Claimant issued him a statement of result even though he failed his Teaching Practice for a fee of N25,000.00, was not cross examined by the Claimant as Claimant was not given such opportunity of cross examination.

ON ISSUE 2

Whether the allegation that the Claimant was involved in fraudulent issuance of statement of results to undeserving students of the Defendant being criminal in nature was proved beyond reasonable doubt as to justify her dismissal from service by the Defendant.

Learned Counsel submits that the criminal allegation against the Claimant were not established before the drastic measure of dismissal was meted out to her. That the allegation against the Claimant borders on corruption and abuse of office, hence, criminal. By virtue of Section 135 of the Evidence Act, 2011, the standard of proof foisted on the employer to prove the guilt of the Claimant is proof beyond reasonable doubt. The allegation of issuance of results to undeserving students was never established beyond reasonable doubt as required by law.

It is the submission of Learned Counsel that Exhibits G1 to G10 being public documents, same ought to have been certified before they can be tendered as exhibits before this Honourable Court. He also points out other defects as follows: that Exhibit G2 is an undated document; Exhibits G3, G5 and G5 are unsigned documents; Exhibit G5 was only signed by the secretary and not the chairman who was in attendance.

He therefore urged the Court to expunge the said documents as well as hold that the allegation that the Claimant was involved in fraudulent issuance of Statement of Results to undeserving students of the Defendant has not been proved beyond reasonable doubt as to justify her dismissal from service by the Defendant.

ON ISSUE 3

Whether the Claimant has proved her case to entitle her to the judgment of this Court.

Learned Counsel submits that the fact that Claimant was issued a query and suspension letters before her dismissal does not make the dismissal proper. That the testimonies of Dr Kolawole and one David Arome were used against her without giving her the opportunity of confronting any of them.

He therefore urged the Court to hold that Claimant has proved her case and therefore entitled to the judgment of this Honourable Court.

ON ISSUE 4

Whether this Honourable Court can rightly grant the reliefs sought by the Claimant and order her reinstatement

Learned Counsel submits that this Honourable Court can grant the reliefs sought by the Claimant given the nature of her employment. That when an employment is one with statutory flavour, the Court is vested with power to order reinstatement. The law is also trite that damages follow injuries and in case of wrongful dismissal a Claimant is entitled to damages.

He therefore urged the Court to hold that from the facts and circumstances of this case, the Claimant is entitled to all the reliefs claimed.

COURT

Having gone through the Claim of the Claimant, Defendant’s defence, evidence adduced by both sides as well as the robust argument by Counsel to the Claimant and Counsel to the Defendant, this Court, while adopting all the issues raised by both Counsel, has distilled a sole issue for determination, to wit:

Whether the Claimant has proved her case to be entitled to the reliefs sought.

Before addressing the issues distilled by the Court above, this Court wishes to state that having adopted all the issue raised by both Counsel, this Court will address such issues, when necessary, in the body of its judgment.

That said, this Court shall proceed to address the issues distilled above

Whether the Claimant has proved her case to be entitled to the reliefs sought

The case of the Claimant herein centers on her dismissal arising from investigation into fake issuance of results to students of the National Teachers Institute to which prior to the query issued to Claimant, Claimant was called by one Mr S.A Kolawole, to which Claimant claimed she did not know who was calling at the time, but proceeded to answer the questions on the date of her employment as 2002 and that they typed students result until 2010. Claimant later reneged on this position when she appeared before the panel and stated instead that the last time they typed result was in 2006 and that her employment was in 2001. As to her earlier answer as 2010, she claimed she was not in her right frame of mind when she answered the questions posed to her on the phone.

Before proceeding to evaluate the evidence tendered before this Honourable Court, this Court would want to first and foremost look at some of the concerns raised by the Claimant on the admissibility of certain documents tendered by the Defendant and the weight to be attached to same. Such exhibits include Exhibits G2, G3, G4, G5 and G6 which, according to Claimant’s Counsel, besides the fact that they are public documents that deserved to be certified in compliance with Section 104 (2) 0f the Evidence Act, 2011, same failed the test of admissibility and ought to be expunged. That Exhibit G2 is undated; Exhibit G3, G4 and G6 are unsigned while Exhibit G5 was only signed by the secretary.

Even if the Court were to overlook partial compliance with the Evidence Act requirements on certification of public documents, the Court cannot overlook the issues of undated document and unsigned documents. The law is trite that an undated document is a worthless document. See A.G Abia State & Ors V. Silas Agharanya & Ors (1999) 6NWLR (Pt.21)165. Moreso, an unsigned document is a worthless document devoid of any legal effect. See Fasehun V. AG Federation (2006) 6 NWLR (Pt.975) 141; Amaizu V. Nzerube (1989) 4NWLR (Pt.118) @page 755. The law is also trite that evidence wrongly admitted can be expunged by the Court. In this regard, Exhibits G2, an undated document; Exhibits G3, G4 and G6 being unsigned documents and Exhibit G5 being a document signed only by the secretary without the signature of the chairman are documents defective and devoid of any legal effect. Accordingly, this Court cannot attach probatory value to same and same are hereby expunged.

The Defendant in their issue 1 argued that the Claimant failed to tender her appointment letter on which the Court can determine the conditions and term of her employment. That rather, the Claimant tendered Exhibits A1 and A2 which bear the name “Ogah Mercy Ojoagefu” as against the name of the Claimant in the suit as “Mercy ThankGod Adejoh”. This Court wishes to state that besides the fact that the amendment to the Statement of Claim of the Claimant which was granted by the ruling of this Honourable Court dated 16^th December, 2016 remedied the situation, this Court is convinced from all the evidence available to this Honourable Court that parties in this case know that the names Ogah Mercy Ojoagefu and Mercy ThankGod Adejoh belongs to one and same person.

Another issue raised by the Defendant’s Counsel is whether the employment of the Claimant is one with statutory flavour. On this, Learned Counsel submits that even though the National Teachers Institute is a body established by statute, this does not mean that all its employees are cloaked with employment with statutory flavour. That even the Staff Regulations and Conditions of Service relied on by the Claimant cannot transform the employment of the Claimant to one that enjoys statutory flavour as same was not made pursuant to the NTI Act or any statutory provision. He relied on the cases of Idonibu-Obu V. NNPC (2003) 1SC (Pt.1) 40 @72; CBN V. Igwilo (2007) 4 – 5 SC154 @173 and Balogun V. University of Abuja (2002) 13NWLR (Pt.783) 42 @53 – 54 Paras E – A.

Granted, it is not all employees in a statutorily established body that enjoy employment with statutory flavour. In circumstances like this, the Court is enjoined to look at the employment letter to determine the nature of such employment. In Claimant’s employment letter, that is Exhibit A1, it is clearly stated that the employment will be confirmed to 60 years retirement age, that is the employment is permanent and Claimant will be retired at age 60 on confirmation of her employment. In paragraph 5 of the employment letter, it is stated that “All employees are governed by the conditions stipulated in the Federal Civil Service Rules, Financial Instructions, the Scheme of Service, the NTI Regulation and Conditions of Service as may be amended from time to time, and the Federal Establishment Circulars that may be in force as and when appropriate”. The letter of appointment of the Claimant clearly takes her employment from the common law master – servant relationship to the one with statutory flavour, and I so hold. Furthermore, besides the fact that the employment the Claimant is governed by the Federal Civil Service Rules now the Public service Rules, the argument of Defendant’s Counsel on the ground that the Staff Regulations and Conditions of Service has no statutory backing cannot be sustained by this Honourable Court. This is so because a community reading of Sections 2 and 19 of the National Teachers Institute Act gives the NTI Council enormous powers which do not preclude it from formulating rules, regulations and conditions of service for employees of the Defendants. Therefore, from a community reading of Sections 1, 2, 3 and 5 of the National Teachers Institute Act, it can be implied that the Council has the power to formulate rules, regulations and conditions of service for employees of the Defendants, and I so hold. For the benefit of doubt, the said sections provide as follows:

Section 1 (2): There shall be established for the management of the affairs of the Institute a council to be known as the National Teachers’ Institute Council (in this Act to be known as “the Council”)

Section 2: Composition of the Council

Section 3: General duties of the Council.

It shall be the duty of the Council to-

(a) Organise and provide programmes for the training, development, upgrading and certification of teachers.

(b) …………………..

(c) ………………………

(d) ……………………

(e) …………………………

(f) ……………………………

(g) ………………………….

(h) ………………………….

Section 5: Registrar and other staff of the Institute.

Section 5(4): The remuneration and tenure of office and conditions of service of the Registrar and other employees of Council shall be determined by the Council in consultation with the Civil Service Commission.

Section 6: Application of the Pensions Act, etc

(1) The Federal Civil Service Commission may by order published in the Federal Gazette declare the office of the Director pensionable or any body employed by the Council to be pensionable office for the purposes of the Pension Acts.

(2) Subject to the provisions of subsection (3) and (4) of this Section, the Pensions Act shall, in its application by virtue of subsection (1) of this section to any office , have effect as if the office were in the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria.

Having found that the employment of the Claimant enjoys statutory flavour, the Court will now proceed to look at the merit of the claim of the Claimant.

The ordeal of the Claimant started after she received a call from one Mr S.A Kolawole to which Defendant stated that the call was part of investigation into issuance of fake result. The questions therefore are – Whose investigation? Was the Claimant being investigated already, and was she aware she was being investigated? Is that how investigation starts in the civil service? Investigation in the civil service starts by way of a query. See Rule 030302 of the Public Service Rules replicated in Clause 27(ii)b of the Staff Regulations and Conditions of Service. This gives rise to the next question – Was a query issued to the Claimant before the call? From all the evidence before this Honourable Court, no query was issued to the Claimant before the call. Therefore, at best, as at the time the call came, Claimant was a witness but not a victim. Granted, in the course of her formal investigation, Defendant has every right to question her on the disparity between what she said on the phone and what she said during her formal investigation. A position of this nature is akin to criminal trial where an Accused would, while agreeing that he made the statement says at the same time that he made the statement under duress. In such circumstances, the Court usually orders trial within trial.

Given the circumstances of the case herein, the Defendant has every right to subject the Claimant to questions and scrutiny that can best bring out the true position of things as well as confront the Claimant with every available evidence.

Moreso, if Claimant’s only offence was that she said on the phone that they typed results till 2010 whereas in the course of her formal investigation she retracted and said they only typed results until 2006, all that Defendant would need do is to confront her with evidence of results that were typed till 2010 to show that it was her earlier answer that was true and not the latter. However, from the evidence before this Honourable Court, the Claimant was not tried on the disparity of her statements but on the ground that a student, one David Arome, claimed he collected his result to which a pass was recorded for him in his Teaching Practice (to which he alleged he actually failed) from Claimant after paying her N25,000.00 (Twenty Five Thousand Naira).

The Defendant herein may have discovered that there was racketeering on issuance of fake results, but it owes a moral and legal duty to carry out deep investigation of such discovery to make sure that the real culprits are fished out and made to pay for their crimes. This Court cannot sustain a termination or dismissal on which the procedure leading to such decision flies in the face of natural justice. In the course of her investigation, the Claimant has a right to exculpate herself of the allegation against her by not only to be shown the result of David Arome to which it was alleged she doctored and proof of N25,000.00 paid her by her accuser but also an unhindered opportunity to cross examine the said David Arome. Failure to so do is a breach of her right to fair hearing and I so hold. See Federal Civil Service Commission & 2 Ors. V. Laoye (1989) A.N.L.R @350.

By virtue of Claimant’s employment letter, the employment of the Claimant is governed by the Federal Civil Service Rules now Public Service Rules. Rules 030307 of the Public Service Rules provides as follows:

Unless the method of dismissal is otherwise provided for in this rule, an officer in the federal public service may be dismissed by the federal civil service commission only in accordance with this rule.

(a) The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point, it must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases

(i) which are likely to result in dismissal, officer should be given access to any document(s) or report(s) used against him/her and him/her should be asked to state in his/her defence the he/she has been given access to the documents. The officer shall be called upon to state in writing, within the period specified in the query, any grounds upon which he/she relies to exculpate himself/herself;

(ii) The query or preliminary letter, shall be in the format shown in appendix II

(iii) If the officer submits his/her representations and the federal civil service commission is not satisfied that he/she has exculpated himself/herself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish and representations within the time fixed, the commission may take such action against the officer as it deems appropriate;

(iv) Where necessary, the commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed Chairman by the commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;

(v) If upon considering the representations of the officer the commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves. Some other punishment, it shall impose on the officer such punishment as it consider appropriate.

(vi) The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board.

(vii) Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;

By virtue of Rule 30307 (vii) above, the accused ought to be shown all documents used against her and opportunity to examine any witness called to testify against her.

From the evidence before this Honourable Court, such opportunity was not availed the Claimant at the domestic panel and as such, decisions emanating thereof cannot be upheld by this Honourable Court, and I so hold. See the case of Ogieva V. Igbinedion (2005) All FWLR (Pt. 260) Pg. 85 @ pg. 87 where their Lordships of the Court of Appeal held thus;

Where a statutory requirement for exercise of a legal authority is laid down, it is expected that the public body invested with the authority would follow the requirement to details.

The non-observance in the process of reaching its decision renders the decision itself a nullity, In other words, when a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person property or office, such procedure must be strictly followed.

From all that have been said above, the claim of the Claimant succeeds as follows:

CLAIM 1 Succeeds.

CLAIM 2 Succeeds

CLAIM 3 Fails.

CLAIM 4 Fails: Parties are to bear their respective cost.

For the avoidance of doubt, the Court hereby declares/orders as follows:

THE COURT HEREBY DECLARES that the dismissal of the Claimant from the employment of the National Teachers Institute was wrongful.
THE COURT HEREBY ORDERS the Defendant to reinstate the Claimant to the service of the National Teachers Institute with immediate effect.

Judgment is hereby entered accordingly.

……………………………………

HON. JUSTICE M.N ESOWE