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HAJIA HAUWA KULU INUWA -VS- CORPORATE AFFAIRS COMMISSION

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IN THE NATIONAL INDUSTRIAL OCURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFROE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 12TH FEBUARY 2018                                                      

SUIT NO: NICN/342/2016

HAJIA HAUWA KULU INUWA              ……………………………..  CLAIMANT

 

AND

  1. CORPORATE AFFAIRS COMMISSION       ……………………,      DEFENDANTS
  2. REGISTRAR-GENERAL, CORPORATE

    CORPORATE AFFAIRS COMMISSION

REPRESENTATION

  1. B. JINGI for the Claimant

AUSTIN NWAORAH for the defendants with V. IZERE

JUDGEMENT

  1. The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 26th September, 2016 against the defendants for the following reliefs:

(a)      A DECLARATION that the 2nd Defendant lacked the competence to terminate the         appointment of the Complainant being a staff on CASS 5-1.

(b)      A DECLARATION that the Letter of Termination of Appointment dated 31st August, 2016      signed by S. R. Uba for the 2nd Defendant is null and void and of no effect whatsoever.

(c)      A DECLARATION that the Stoppage of the Salaries and Allowances of the Complainant          from October 2015 up to the purported date of Termination of Appointment, without being     put on suspension is unconstitutional as the Complainant was not afforded fair hearing as         provided by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

(d)      AN ORDER directing the Defendants to re-instate the Complainant to her rank and post.

(e)      AN ORDER directing the Defendants to pay the Complainant all her Outstanding Salaries          and Allowances from October 2015.

(f)       Costs of this action.

  1. Claimant’s Case
  2. The Claimant, a lawyer by profession was offered Provisional appointment by the 1st Defendant on the 2nd day of May, 2007 and the appointment was accepted on the 7th day of May,2007. The appointment was later confirmed on the 24th day of November, 2008. The claimant averred that as a Senior legal practitioner, she ought to have been appointed to a higher post then ‘a Deputy Manager’, but for lack of the Board, the 1st Defendant appointed her to the post she has power to appoint.

  1. Claimant stated that upon inauguration of the Board, the board on its 52’ meeting held on the 24th day of September, 2010 approved the proper placement of the claimant from Deputy Manager on CASS 7/4 to Manager on CASS 6/3 with effect from 24th September, 2010. On the 2nd day of February, 2012 the claimant was notified of her promotion from Manager on CASS 6/3 to Senior Manager on CASS 5/1 with effect from 1st January, 2011.

  1. Claimant averred that she worked in many Departments and headed many units satisfactorily and that in the course of her service, she was posted to head the 1st Defendant’s Yaba, Office in Lagos, Lagos State. While in Yaba she felled sick and applied for sick leave, however, that the application was refused by the 1st Defendant. The claimant continued with her treatment of which the Defendants considered her absence from duty as an affront. She was subsequently issued a query which she answered.

  1. The Defendants caused the claimant to appear before the Central Disciplinary Committee of which the claimant in protest, wrote a resignation letter which was rejected by the Defendants. The Central Disciplinary Committee recommended for the dismissal of the claimant, but the Management Committed it to termination of Appointment. As there was no Board in place, the Defendant being aware that the claimant is a Senior Staff and only the Board could discipline her wrote the Honourable Minister of Industry, Trade and Investment for approval to terminate the appointment of the claimant.

  1. On the 25th day of August, 2016 the Director (Human Resources Management) D.H. Mohammed on behalf of the Permanent Secretary of Ministry of Industry, Trade and Investment approved the request of the Defendants to discipline the claimant. On the 31st day of August, 2016, the Defendants terminated the appointment of the claimant with effect from 25th August, 2016 for disregard to constituted authority and negligence of duty.

  1. The claimant being aggrieved with the action of the Defendants caused a complaint to be filed against the Defendants challenging her termination of appointment.

  1. The DEFENDANTS STATEMENT OF DEFENCE was filed on 2nd December, 2016.

  1. Defendants admitted paragraph 10 of the statement of facts only to the extent that the claimant was transferred to the 1st Defendant’s Yaba office in Lagos State via a letter of transfer dated 6th day of March, 2015.The Defendants denied paragraphs 11 and 12 of the statement facts and averred that the claimant became reluctant and unwilling to discharge her duties at the 1st Defendant’s Yaba office in Lagos when she discovered that she failed her promotion examination. The Defendants admitted paragraph 13 of the statement of facts to the extent that the claimant’s application for leave dated 13/10/15 was received and state that the application was refused as the medical report submitted by the claimant did not conform with clause 7.10 of Commission’s conditions of service. The claimant was consequently advised to use her annual leave to treat herself or in the alternative represent her request in line with the provisions of Commission’s conditions of service.

  1. The Defendants admitting paragraphs 15 and 16 of the statement of facts stated that the claimant was queried on the 10/11/15 to explain why disciplinary action should not be taken against her for absconding from duty and gross misconduct in line with clause 2.09 of the Commission’s conditions of service and non-rendition of monthly activity reports for 4 months (July-October, 2015) and state that the claimant refused, neglected or failed to answer the query.
  2. Defendants reacting to paragraphs 18 and 19 of the statement of facts averred that on the 3/12/15 the claimant only forwarded a written response to the Chairman of the Disciplinary Committee but state that at no time did the claimant seek for any extension of time within which to appear before the Central Disciplinary Committee, neither was there any letter to the claimant by the Chairman of the Committee granting her any such extension.

  1. In answer to paragraphs 21 and 22 of the Statement of Facts the Defendants averred that the claimant is aware of the gravity of her actions and that the Central Disciplinary Committee had found her guilty of absconding from duty, Negligence of duty and Disregard for Constituted Authority after the Committee’s deliberation on her case, adding that that was why she stayed away from her duty post since the 5/11/15 till her appointment was formally terminated after due disciplinary procedure.

  1. Responding to paragraphs 23 and 24 of the Statement of Facts defendaants stated that a termination letter dated 31/8/16 was served on the claimant and that the claimant’s appointment had been terminated in line with the conditions of service of the Commission and the claimant’s Offer of Appointment adding that one month in lieu of termination and other entitlements if any, will be paid to her in accordance with Commission’s conditions of service.

  1. In answer to paragraph 25(c) of the statement of facts, the Defendants averred that paragraph 11:01 of the conditions of service applies only to Resignation and not Termination and hence does not apply to the claimant.

  1. In reply to paragraph 26 of the statement of facts, the Defendants stated that at all material time, the claimant was given fair hearing but she refused, neglected or failed to capitalize on the opportunities as phone calls and invitation were extended to her as admitted by her in paragraphs 17 and 20 of the statement of facts which opportunities she failed to utilize adequately.

  1. Responding to paragraph 26 of the statement of facts the Defendants averred that the claimant received her full salary in October, 2015 and was even paid the 1st tranche of her November salary on the 5th day of November, 2015.

  1. The Defendants denying paragraph 32 of the statement of facts stated that the claimant’s action is frivolous, vexatious and a waste of the precious time of the Honourable Court and wherefore the Defendants urge the Court to dismiss the action with substantial cost.

  1. CLAIMANT’S REPLY TO THE DEFENDANTS’ STATEMENT OF DEFENCE filed on 22nd.

  1. In response to paragraph 7 of the Defendants’ Joint Statement of Defence the claimant stated that she never failed to discharge her duties in the Yaba Office of the Defendant and that up to this moment she was not shown the result, to know how she faired in the promotion examination and as such she could not have allowed rumours of her failure to affect her official duties.

  1. The claimant states in In response to paragraph 9 of the Statement of Defence, the claimant states that her application for leave of medical grounds was in complete compliance with the provision of clause 7:10 of the Condition of Service of the 1st Defendant.

  1. In response to paragraphs 8 and 33 states that lack of forwarding the quarterly reports to the Headquarters could not have been her fault as she properly handed over her duties to her assistant one Mrs. Ifeoma Igwemadu before she left to attend to her health challenges.

  1. The claimant in answer to paragraph 34 of the Statement of Defence states that the staff Responsibilities (b) in chapter two of the Condition of Service of the 1st Defendant ie, “the principle of ‘a fair day’s work for a fair day’s pay” does not apply to the claimant as she is already protected, covered and governed by clause 7:10 of the some condition of service.

 

  1. In answer to paragraph 40 of the Joint Statement of Defence the claimant avers that, it was wrong for the defendants to seek approval of the Honourable Minister to terminate her appointment because there was no Board in Place. The Defendants quickly forgot that during the employment of the claimant, they could not seek the approval of the Honourable Minister to place her in her proper rank because there was no Board in place, but rather placed her on a rank where the management has the power to employ. That if the Honourable Minister does not have power to approve employment to the rank where only the Board has power to employ, he would not have power to approve termination of appointment that is vested only on the Board. That the approval of the Honourable Minister is therefore null and void.

  1. Whereof the claimant shall content that the Defendants’ Joint Statement of Defence is frivolous and lacking in merit and shall urge the Honourable Court to discountenance the said Statement of Defence and enter Judgment for the claimant per her claims.

  1. At the trial the claimant testified as CW, adopted her written statement on oath of 29th September 2016 and her additional written statement on oath of 22nd March 2017 which were marked C1 and C2 respectively and proceeded to tender eleven (11) other exhibits.
  2. List them

  1. The court reserved its ruling on the question raised with regard to the legal requirement and operation of a Notice to produce and the legal requirements for a Certification till final judgment. CW was duly cross examined and the claimant’s case was closed
  2. The defendants called one witness Olamide Oyeniyi who testified as DW, adopted his written statement on oath of 21st  December 2016 which was marked D1 and proceeded to tender twenty (20) other exhibits. He was duly cross examined and the defendants thereafter closed their case.

  1. List Defendants exhibits

  1. At the close of trial parties where directed to file their final written addresses in line with Order 37 rule 20 (3), (4) and (5).

  1. The DEFENDANTS FINAL WRITTEN ADDRESS was filed on 11th August, 2017.

  1. ISSUES
  2. Whether or not the termination of the claimant’s employment was lawful and valid.
  3. Whether or not the claimant was afforded fair hearing in the process leading to the            termination of her employment.

 

  1. ON ISSUE 1
  2. Whether or not the termination of the claimant’s employment was lawful and valid.

 

  1. Learned Counsel submitted that upon the appraisal of the facts and evidence led in this case, the nature of the claimant’s employment is one devoid of statutory flavour. PIUS A. HUL & 2 ORS VS CORPORATE AFFAIRS COMMISSION & 4 ORS, Appeal No: CA/A/ 154/2004, per OLUFUNMILOLA OYELOLA ADEKEYE, JCA. He submitted that in a master (employer) and servant (employee) relationship the master has unfettered right to terminate the contract of employment and the reason or motive for exercising the right does not render the exercise of the right ineffective. OSIANYA VS. AFRIBANK NIG PLC reported in (2007) 6NWLR (pt 1031) 565. It is Defendants counsel’s submission that the relationship between the claimant and the Defendants was governed by exhibits C3 (offer of provisional appointment) and exhibit D21 (condition of service, Corporate Affairs Commission). Furthermore, that the court has held that where there is a written contract of employment, it is outside the province of the court to look anywhere for terms of termination of the contract, other than the written contract. KATTO Vs. C.B.N (1999) 6NWLR (pt. 607) 390 at 405, Paras. D-F.

 

  1. He submitted that where a contract of employment does not forbid the employer to terminate, the employer has the unfettered right to do so. DUDUSOLA Vs. NIG GAS CO. LTD (2013) 3-4 S.C (pt 11) 4(E114-15 PARAS 30-58 16-17, PARAS 20- 25 per Aka’ahs, JSC.

 

  1. Counsel noting that the Claimant made heavy weight of the fact that she was a senior staff in the Defendants employment hence it is only the Board of the commission that can terminate her appointment, submitted that the fact that the Board of the defendant is not in place does not mean that senior staff in the employment of the Defendants should be law unto themselves and thus not subject to discipline. Imonikhe Vs. Unity Bank Plc (2011) 12NWLR pt (1262) P.649, Para C.

 

 

  1. ON ISSUE 2
  2. Whether or not the claimant was afforded fair hearing in the process leading to the termination of her employment.

 

  1. It is Defendant counsel’s submission that the claimant throughout the trial of this case has not established or led any evidence to show or suggest that the claimant was not given fair hearing in the process leading to the termination of her employment. S & D Construction Co. Ltd Vs. Ayoku (2011) 13 NWLR (Pt 1265 )P. 497 Para 10. He further submitted that when the Claimant eventually appeared before the central disciplinary committee on the 9/2/16, her case was extensively deliberated on and the outcome of the deliberation resulted in exhibit D 14. Imonikhe vs Unity Bank Plc. (Supra), Onnoghen J.S.C as he then was at page 641, Paras. E-F; Adeyemi Vs. State (2011) 5NWLR (pt 1239) p7 Para 3, Bada JCA at pages 26-27, paras H-H’ Adebayo Vs. Attorney General of Ogun State (2008) 7NWLR (Pt 1085) page 201 at 205 to 206.

  1. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 4th August, 2017. With the following ISSUES FOR DETERMINATION

 

  1. Whether the Claimant who is a Senior Manager in the employment of the 1st Defendant on CASS 5/1 can appropriately have her appointment terminated by the management of the 1st Defendant in spite of the provision of clause 4:11 of the Corporate Affairs Conditions of Service.

  1. Whether the stoppage of the Salary of the claimant by the Defendants for absence from office when she was sick from October, 2015 to 31st August, 2016 when her appointment was terminated for Disregard to Constituted Authority and Negligence of Duty was not illegal.

 

  1. The Claimant Counsel pointed out that the defendants in arguing their 1st issue, submitted that the termination of Appointment of the Claimant was lawful and valid relying on the unreported case of Pius A. Hull & 2ors vs Corporate Affairs Commission & 4ors: Appeal No CA/A/154/2004, Judgement delivered on the 18th day of December, 2006, submitting that above case is quite distinguishable from the present case in so many respects thus:

  1. The Court of Appeal at page 12 of its judgment found that,

(b)                              “when the board of the 1st Respondent was dissolved in 1994 it was authorized to exercise the power of the dissolved Board. The Appellant did not deny this state of affair but also benefited from same. They had their appointments confirmed by the 3rd Respondent and were promoted by him” see line 5 to line 9 at page 12 of the copy of the Judgment.

 

  1. i          Whereas in the present case, when there was no board in place, the claimant was employed to a lower rank because there was no board even though there was a minister in place and she was properly placed to her rank when the board came or board see exhibits “C3” and 1’c6,,

  1. ii.        The Honourable Minister issued the letters of termination of appointments of the appellants, in the case of the claimant here the letter of termination of appointment was issue by one S. R. Uba for the Registrar — General.

  1. iii.       Section 5 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is very clear about the people or officers that would exercise the powers of the president on his behalf and that list did not include the Registrar-General of the Corporate Affairs Commission.

  1. It is counsel’s contention that by the provision of Section 11 of the Companies and Allied Matters Act, 1990, the claimant is a person on statutory appointment and as such her employment enjoys statutory flavor. And  argued that where a statute governs the conditions of employment as in this case, the employee acquires a special legal status and the employer must comply with the stipulations in the conditions of services where the provisions of a statute govern the conditions of employment of an employee, the court regards the employee as having secured a special legal status other than the ordinary master and servant relationship with the employer. That the employer in that respect is bound to comply with these conditions where its comes to termination of appointment of the employee, otherwise the act of termination would be wrongful, null and void. Federal Medical Centre Ido — Ekiti vs Alabi (2012) 2 NWLR (Pt. 1285)4ll at 438 paras E-H.

 

  1. ON ISSUE 1
  2. Whether the Claimant who is a Senior Manager in the employment of the 1st Defendant on CASS 5/1 can appropriately have her appointment terminated by the management of the lst Defendant in spite of the provision of clause 4:11 of the Corporate Affairs Conditions of Service.

 

  1. Learned Counsel submitted that the things a plaintiff in an action for wrongful termination of employment must plead and prove have been laid down by the that the things a plaintiff in an action for wrongful termination of employment must plead and prove have been laid down by the Supreme Court of Nigeria in the case of B.A MOROHUNFOLA VS KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (Pt. 145) 506  at 525, 526 paras H-A, where the Court listed the things as follows: –

(a)      “(a) That he is an employee of the Defendant;

(b)      how he was appointed and the terms and conditions of his appointment.

(c)      who can appoint and remove him

(d)      the circumstances under which his appointment can be terminated.

(e)      that his appointment can only be terminated by a person or authority other than the Defendant.” EMOKPAE VS UNIVERISTY OF BENIN & 2OR (2002) 17 NWLR (Pt 795) 139 at page 152 and ADAMS VS LAGOS STATE DEV’T & PROPERTY CORP (2000) 5 NWLR (Pt.656) 291.

 

  1. Counsel submitted that where a master and servant relationship is predicated on a statute or specific regulations which clearly stipulate the procedure for termination of the servant’s employment, it is mandatory for the master to follow strictly the provision of the statute or regulations. That the regulations in point here is the Corporate Affairs Commission Condition of Service, tendered in evidence by the claimant as Exhibit “C’4” and by the Defendants as Exhibits “D21”. OBAFEMI AWOLOWO VINCENT VS ONABANJO (1991) 5 NWLR (Pt.) 549 at page.

 

  1. It is counsel’s submission that since there is no provision in the condition of service that the Honourable Minister could act in the absence of the Board, that the termination letter dated the 315t day of August, 2016, terminating the appointment of the claimant has no backing of the law or the conditions of service and as such is null, void, and of no effect. OBAFEMI AWOLOWO VINCENT VS ONABANJO (1991) 5 NWLR (Pt.193) 549.

 

  1. He submitted that it is trite that where an employment governed by statute is wrongly or unlawfully determined, the employee is entitled to re-instatement. Prince Boniface M. Agbu vs Civil Service Commission Nasarawa State & 2ors (2011) 1 NWLR (pt. 1229) 544 at 560 – 561 paras H-F; Olaniyan vs University of Lagos (1985) 2 NWLR (pt. 9) 599; Shitta-Bay vs Federal Civil Service Commission (1982) 1 SC 40.

  1. Counsel further submitted that where an employee is sought to be removed in a contract with statutory flavour, that is a contract of employment wherein the procedures for employment and discipline are spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is null, void and of no effect. Alhaji Ibrahim Jibril vs The Military Administrator, Kwara State & 4ors (2007) 3 NWLR (pt. 1021) 357 at 386 paras A — C, Obot vs CBN (1993) 8 NWLR (Pt. 310) 140 and UBN vs. Ogboh (1995) 2 NWLR (Pt. 350) 647.

  1. ON ISSUE 2
  2. Whether the stoppage of the Salary of the claimant by the Defendants for absence from office when she was sick from October, 2015 to 31st August, 2016 when her appointment was terminated for Disregard to Constituted Authority and Negligence of Duty was not illegal.

 

  1. It is counsel’s submission that this Honourable Court has the power to make an order for payment of any outstanding benefits where it finds that the employment with statutory flavour as in this case was unlawfully terminated. And that they have earlier submitted under the first issue that the termination of appointment of the claimant by the Defendants is null and void. Thus, that the effect is that the claimant was always and still in the service of the 1st Defendant. Union Bank Ltd. Vs Ogboh (1995) 2 NWLR (pt 380) 647; Aiyetan vs National Institute for Oil Palm Research (1987) 3 NWLR (pt 59) 48; Garba vs Federal Civil Service Commission (1988) 1 NWLR (pt 71) 449 and Sapara vs University College Hospital Management Board (1988) 4 NWLR (pt 86) 58.

 

  1. On the 14th November 2017 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

  1. Court’s Decision

 

  1. 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 Judgement 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 reliefs sought in this case.

  1. The claimant’s reliefs are as follow;

(a)      A DECLARATION that the 2nd Defendant lacked the competence to terminate the         appointment of the Complainant being a staff on CASS 5-1.

(b)      A DECLARATION that the Letter of Termination of Appointment dated 31st August, 2016      signed by S. R. Uba for the 2nd Defendant is null and void and of no effect whatsoever.

(a)                               (c)      A DECLARATION that the Stoppage of the Salaries and Allowances of the Complainant          from October 2015 up to the purported date of Termination of Appointment, without   being put on suspension is unconstitutional as the Complainant was not afforded fair hearing as provided by the Constitution of the Federal Republic of Nigeria, 1999 (as            amended).

(d)      AN ORDER directing the Defendants to re-instate the Complainant to her rank and post.

(e)      AN ORDER directing the Defendants to pay the Complainant all her Outstanding Salaries          and Allowances from October 2015.

(7)      Costs of this action.

  1. In order to properly consider the claimant’s claim and entitlement to the reliefs sought or otherwise, it is necessary for the court to determine or to make a finding as to the nature of the claimant’s employment relationship with the defendants. The defendants have submitted that the claimant’s employment with them is one of Master and servant whereas the claimant in her statement of fact averment 30 stated thus;

  1. “The claimant further avers that the 1st Defendant is a Statutory Body and is not like a Private company where its Chief Executive can hire and fire with or without reason…” and in her final address maintain that the Claimant’s employment was one of statutory flavour arguing that the claimant had been confirmed.

  1. The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C.

  1. In SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA  Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of  appointment  referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20.
  2. In determining whether the respondent’s appointment is statutorily flavoured or not “..the courts have held that recourse should be had to the contends of the letter of appointment” FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B.
  3. In the instant case, the Offer of Appointment Letter Exhibit C3 reproduced below:

____________________

CORPORATE AFFAIRS COMMISSION

 

ADM/SSA/120/X/38  

Inuwa Hauwa Kulu

F199 Tunga Housing Estate

Minna Niger State.

 

Dear Madam,

OFFER OF PROVISONAL APPOPPPINTMENT

With reference to your application and subsequent interview. I am directed to offer you employment as a Deputy Manager in the Corporate Affairs Commission on the terms and conditions laid down below:

  1. Your Appointment is subject to the terms and conditions laid down by the Commissions from time to time.

Your appointment takes effect from the date you assume duty.

Your stating salary is CASS 7 step 1.

You will be on probation for a period of one year after which the appointment may be conformed subject to your satisfactory performance and favorable reports from your referees.

Other entitlements and allowances are as per the Commissions Condition of Service.

You are to inform this office within one month from the date of this letter, whether or not the offer is acceptable to you and also indicate the probable date you shall assume duty. Furthermore, the appointment is subject to your being found Medically fit for service in the Commission by a Medical Practitioner appointed or recognized by the Commission.

You may terminate your appointment by giving one months notice or payment of one month’s salary in lieu of notice. At the same time the commission may also terminate your by one months notice or payment of one month’s salary in lieu of notice

Please accept my congratulations

Yours faithfully

(Signed)

Y.M. MOHAMMED

DIRECTOR. PERSONNEL

FOR REGISTRAR- GENERAL

  1. Now, the authorities are all agreed on the following: the fact that an employer is the creation of statute does not elevate its employees to the status of employment with statutory flavor; there must be some preconditions on which a valid appointment or determination must be predicated for the employment to have statutory flavor; where the contract is determinable by the agreement of the parties simpliciter there is no question of the contract having statutory flavor; the fact that the other contracting party is the creation of a statute does not make any difference. See, for instance, FAKUADE V. OAUTH [1993] 5 NWLR (PT. 291) 47. The case of FMC, IDO-EKITI V. OLAJIDE [Supra] proceeded to add that for an employment to enjoy the status of statutory flavour, the manner of employment and termination must be specifically provided for in the statute creating the employment. That it is not every appointment in a Federal government agency that is clothed with statutory flavour. The fact that the Federal Government agency is a statutory body does not automatically mean that the conditions of service of its employees must be of special character ruling out the relationship of mere master and servant. It is only when the employment is protected by statute which makes the provisions for the procedure for employment and termination of such employment that it can be said that the employment is clothed with statutory flavour. In fact IMOLOAME V. WAEC [1992] 9 NWLR (PT. 265) 303 held that the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See also JIRGBAGH V. UBN PLC [2001] 2 NWLR (PT. 696) 11 CA, NEPA V. ADESAAJ [2002] 17 NWLR (PT. 797) 578 CA AND ILOABACHIE V. PLILIPS [2002] 14 NWLR (PT. 787) 264 CA.

 

  1. And by the more recent Supreme Court decision in PHCN V. OFFOELO [2013] 16 WRN 28  that the mere fact that an employer is a creation of statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment into one of statutory flavour. Rather, there must be a nexus between its employee’s appointment with the statute creating the employer or corporation. To illustrate the kind of nexus required before an employment is branded statutory, in PHCN V. OFFOELO Supra, the Supreme Court found that a finding of the trial court which was not disputed is that the respondent was employed by the appellant since 1966 and that the conditions of his contract of employment are contained in the “Conditions of Service of Employees of National Electric Power Authority” tendered as Exhibit A. The Court held that section 4 and paragraph 9 of the Schedule to the NEPA Act are the connection and authority, which empowers the appellant to make Exhibit A (conditions of the employment of the appellant’s staff). As such Exhibit A has the force of law as NEPA Act, which established the appellant and the appointment of staff made therein consequently attracts statutory flavour.

  1. Bearing in mind that by, UJAM V. IMT [Supra] it was held that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or by a section(s) of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. In the case of the latter, the section(s) of the statute must clearly and unequivocally govern or regulate the employee and must be unmistakably clear in the provisions as to delegated legislation. That the regulations and/or the conditions of service must be implicitly borne out from the section(s) delegating or donating the authority. In other words, there must be clear nexus between the delegating section(s) and the regulation or conditions of service conveying a legal instrument or document which is of similar content. In such a situation, the regulations or conditions of service must commence with the provision of the enabling statute.

  1. This court in the unreported case of SUIT NO. NICN/LA/74/2014 MAHMUD BAYO ALABIDUN V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR delivered on the 30th January 2015, considered these condition in determining the employment status of the claimant in that instant suit held thus “ Given these case law authorities, can it be said that that the claimant has shown to this Court that his employment is one with statutory flavour? The claimant had relied on section 10(1) of the FAAN Act in submitting that it is. Here I acknowledge that OLUFEAGBA V. ABDUL-RAHEEM [2009] 18 NWLR (PT. 1173) 384 SC held that statutory provisions establishing a corporate body always empower the body to employ staff and discipline them; and that once the statutory provisions are clear as to how to deal with an erring servant, they must be adhered to strictly including a clear observation of the principles of fair hearing. Section 10 of the FAAN Act Cap. F5 LFN 2004 deals with staff generally and provides in subsection (1) that “subject to this Act, the Authority may appoint such other persons as members of its staff as it considers necessary and may approve conditions of service for the staff”. Note that this section talks of approval of the conditions of service, not say making it. Exhibit MBA4, the Staff Conditions of Service, is dated 1st July 2011. It has in the “Special Note” the following statement –

(a)      The provisions of these Conditions of Service are subject to periodic review by      Management and Employees’ Unions Representatives.

(b)      All circulars, orders and other documents giving further details and/or explanation to the   provisions of these Conditions of Service, shall be negotiated and thereafter form part of        them, provided that they are not less favourable than these Conditions of Service.

  1. And in clause 1.4(i), it provides that “any amendment to these Rules and Regulations shall be undertaken after due negotiation between the Management and the Unions and ratification by the Head of Civil Service of the Federation and such amendments shall be incorporated in the Conditions of Service”.

  1. Now, nowhere in Exhibit MBA4 will it found that the conditions of service were made pursuant to any section of the FAAN Act as to make it come within the UJAM V. IMT Supra                                                                                                                                                                                                                                                                                criterion, which enjoins that the regulations or conditions of service must commence with the provision of the enabling statute if it is to be read as a product of delegated or donated authority. In other words, there is no nexus between Exhibit MBA4 and section 10(1) of the FAAN Act as demanded by PHCN V. OFFOELO (SUPRA). In fact there is nothing indicating to the Court that the Authority (FAAN) approved Exhibit MBA4 as to bring into play section 10(1) of the FAAN Act”.

  1. In the instant case, I find that there is no mention in Exhibits C14 or D21, the Condition of Service to indicate that the Condition of Service was made pursuant to any Act whatsoever nor the Companies and Allied Matters Act under Section. Neither is there any reference to the said Condition of Service amounting to any policy so as to bring it within the ambit of policy making as stated in the introduction of Exhibits C14. The law requires that the condition of service of a body creating a statutory employment was proceed by stating that the regulations for conditions of service are made pursuant to a provision in the enabling act that gives power to the said organ to make regulations or Conditions of services and in the instant case no such reference was made by C14 nor was any such power donated to any organ in the CAMA. I find.

  1. The claimant has tried to argue that Section 11 CAMA brings the employment within the ambit of statutory employment but a careful reading of this section reveals that the section merely guarantees the pension of employees where applicable see also the unreported case of SUIT NO. NICN/LA/534/2013 ELIZABETH MODUPE OYEDUNTAN V. WEST AFRICAN EXAMINATIONS COUNCIL (WAEC)& ANOR, where this court considered a similar provision to Section 11 CAMA held that the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour relying on IMOLOAME V. WAEC [Supra].

  1. For all the reasons and authorities cited, it is difficult to see how the claimant can properly and accurately consider herself as a statutory employee in the manner she did. It is my finding and holding, therefore, that the claimant has not shown to this Court how her employment is one with statutory flavour. And relief (d) cannot be granted.

 

  1. Back to the claimant’s reliefs; –

  1. With regard to reliefs (a) and (b), the claimant is seeking a declaratory relief that the 2nd defendants lacked competence to terminate her appointment by virtue of the fact that the claimant is a CASS 1 and that the Registrar General or his designate R. U. Uga is not authorized to terminate the claimant’s employment. The defendants maintain that in terminating the claimant’s employment that they were well within their rights as her employment was one of employee/employer commonly referred to as master servant and that they had the  reason or motive or lack thereof unfettered right to hire and fire and does not render the termination ineffective.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       The defendants maintain that the termination was not retroactive arguing that the claimant finally appeared before the Central Disciplinary Committee on the 9th February 2016 (having failed to appear to previous invitation of 10th December 2015)  and the defendants duly considered this before they issued the letter of termination letter which was dated the 31st August, 2016 terminating the claimant’s appointment.  In addition to that they contend that the said termination is valid having been approved by the minister, who as a member of the executive, is empowered being an appointee of the President of the FRN by virtue of Section 5 CFRN 1999 (as amended) can stand in the place of the board. Relying on the unreported case of CA/A/154/04 PIUS A HUIR V. CORPRATE AFFAIRS COMMISSION &4 ORS delivered on 18th December, 2006. The claimant on their part, contend that the termination was not in compliance with the provisions of the condition of service, that where termination in addition was, backdated having been addressed to take effect from 25th August but was actually dated 31st August, 2016, she contends further that her appointment being on CAAS 1 can only be determined by the Board and that there is no residual power in the enabling Act under which the Registrar can terminate her appointment.

  1. With respect to the authority of PIUS A HUIR V. CORPRATE AFFAIRS COMMISSION &4 ORS, the claimant argued that whereas in respect of the employee involved in that case, his employment was susceptible to approval by the minister in the absence of the Board whereas in respect of her own appointment, she had to wait for the Board to be inaugurated in order to be given her proper placement. See Exhibit C6. The claimant in furtherance of her claim of employment had tendered Exhibit C4 tendered by the defendants as Exhibit D17, the defendants condition of employment which provides in Chapter 4 dealing with Staff Discipline, paragraph 4.11 that “Disciplinary measures affecting staff on CASS 5-1 shall be taken by the Board of the Commission on the Recommendation of the Management.

  1. The claimant had also presented Exhibit C7, her letter of promotion of 2nd February, 2012 promoting her to Senior Manager on CASS 5/1 with effect from 11th January, 2011.

  1. The defendant has not shown the court the authority or the basis on which the Registrar of the Commission is empowered to terminate the claimant in direct contravention of the provisions of the Condition of Service. Or how the claimant does not fall within the category of staff not to be disciplined by the Board. The defendants relying on the case of PIUS A. HUL & 2 ORS VS CORPORATE AFFAIRS COMMISSION & 4 ORS, Appeal No: CA/A/ 154/2004 delivered on the 18th December 2006 urged the court to accept their contention that the Minister in the absence of the Board is empowered to act as he has done in  this case. However, the Court of Appeal in reaching the position of PIUS A. HUL & 2 ORS VS CORPORATE AFFAIRS COMMISSION & 4 ORS, Appeal No: CA/A/ 154/2004, the Court of Appeal were not presented with the issues formulated by the claimant to wit: when she was recruited she was placed on cadre and had to wait until 25th September by which time a Board was appointed to get her proper placement as evidenced in Exhibit C6.

  1. The claimant has proved from the above that she is of the category of staff that can only be disciplined by the Board. I find.

  1. The argument of the claimant I find, leads to the irresistible conclusion that the nature of the appointment in question (her appointment) is not the same as what was considered in PIUS A. HUL & 2 ORS VS CORPORATE AFFAIRS COMMISSION Supra. Also, the court of Appeal was not presented with the claimant’s peculiar situation where she was employed but required the Board ratification to be given her proper appointment.

  1. The condition of service, Exhibit C14 clearly provides that the claimant is to be disciplined by the Commission, the defendants have not shown where in the said Exhibit C14 the enabling law donated to the Parent Ministry the legal authority to act as the commission in the advent of there being no board.

  1. Furthermore, it was held in this court that the proper thing for the defendant to do in a situation where the Board approval is required to take any action and no Board is in place, would be to wait until the Board is reconstituted. See the case SUIT NO. NICN/LA/590/2012 ADESOJI SODEKE Vs. NATIONAL DRUG LAW ENFORCEDMENT AGENCY delivered October 24, 2016 This court held that “Rather than await the composition of the Board, the Chairman/Chief Executive in breach of Regulation 38 re- instated the claimant. The court went on to hold that  “ that The claimant was then erroneously recalled from interdiction and reinstated ……The defendant being a statutory body, it is imperative for it to comply fully with its Regulations on discipline” that court held ……the failure of the defendant Agency to comply with Regulation 38 and 121 rendered his recall from interdiction and reinstatement null and void”. See also the unreported SUIT NO: NICN/CA/60/2015 SARAH A. AYUK Vs. UNIVERSITY OF CALABAR TEACHING HOSPITAL delivered 3rd March 2017 and SUIT NO: NICN/CA/59/2015 COMFORT EKPENYONG EDET Vs. UNIVERSITY OF CALABAR TEACHING HOSPITAL delivered 3rd March 2017’

  1. From the foregoing, I find that the claimant’s appointment is governed by the agreement between her and the defendant which both parties agree is the condition of Service Exhibit C4 also D 17.

  1. The position of the law is as was stated in SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16. PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP that “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them.

 

  1. Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void. The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.” – per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620.

  1. I find that the defendants had no authority to terminate the claimant’s appointment in the manner in which they did. I find that the procedure adopted by the defendant is not in consonance with the Condition of Service and as such is wrongful.

  1. Exhibit C13 is the letter of Termination.

  1. This letter dated 31st August, 2016 informs the claimant that her services with the defendants are terminated with effect from the 25th August, 2016 for Disregard to Constituted Authority and Negligence of Duty, and in the last paragraph states that the Finance and Accounts Department will arrange for the payment of one (1) month salary in lieu of notice and other entitlements (if any).

  1. The mere fact that the letter bears a date, 31st August, 2016, and six (6) days after the date of the purported termination (25th August, 2016) in itself presupposes retrospective action of 6 days. But the defendants have contended that the disciplinary process was commenced on the claimant when she was first queried on the 10th November, 2015, thereafter on the 18th November, 2015 when her salary was stopped, the Claimant appeared before the Central Disciplinary Committee (CDC). The   CDC deliberated on the claimant’s case on the 9th February 2016, 22nd March 2016 and 19th May 2016. See D19. Duly made recommendations to the Management on the 22th July, 2016, who in turn forwarded their recommendation to the Honourable Minister of Industry Trade and Investment, the Honourable Minister acting ostensibly for the Board aka Commission approved the claimant’s termination on 25th August, 2016.  See Exhibit D20 (7). And the date of 25th August 2016, is the date the termination was approved, hence, the effective date.  In the English case of GISDA CYF V   BARRAT (2010) LPELR-17827(UKSC) delivered on the 13th day of October, 2010   the Supreme Court of England maintained that the “effective date of termination was when the employee had actually read the letter and knew of the decision…” Our Courts have held that the effective date of termination letter is the date the letter was written. See CONTROLLER OF PRISON Vs IDEHEN [2009] 4003 LPELR (Pp. 15-16 para F-B),   

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

  1. I find that Exhibit C13 was indeed back dated.

  1. Exhibit C 13 in its last paragraph states “ that the Finance and Accounts Department will arrange for the payment of one (1) month salary in lieu of notice and other entitlements (if any)” this sentence I find is not in consonant with the legal requirement governing payment of salary in lieu of notice.

  1. Learned Authour Chigozie Nwagbara  in her Determination of Contract of Employment and Remedies for Wrongful Dismissal, by Chigozie Nwagbara at page 24 @2000 Tate Publishers Lagos. had this to say about Payments in lieu of notice The said payment should be given with the notification and not thereafter
  2. The above arrangement/ stipulation found in C13 is contrary to the position of law that states that “it is that payment in lieu of notice is permissible, but such payment must be made at the time of the termination of the contract and not afterwards, see CHUKWUMA Vs. SPCN 1993 8 NWLR512 @ 518 Karibiyi Whyte JSC.

  1. The claimant contends that she is actually entitled to three months’ salary in lieu of notice and not one month salary in lieu of notice as is contained in her conditions of service citing paragraph 11.01 of Exhibit C 14.

  1. This paragraph 11.01 of Exhibit C14 provides as follows

  1. “RESIGNATION

 

  1. A staff below CASS 6 may resign his/her appointment anytime by giving one month notice or payment of one months’ salary in lieu of notice. Staff on CASS 6 and above shall give 3 months’ notice or payment of 3 months’ salary in lieu of notice.”

  1. In the course of this trial, in fact, during cross examination of the claimant, the court was informed that the claimant had tendered her letter of resignation to the defendant, the court then sought to hear from counsel to both sides during adumbration, how the court was to view this evidence particularly in light of the legal position that there is an absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. See YESUFU V. GOV. EDO STATE [2001] 13 NWLR (PT. 731) 517 SC, furthermore a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed.

  1. The claimant counsel submitted that although the claimant had sent in her letter of Resignation the defendants had refused it and as such she still remained their employee. While the defendants counsel argued that that by their condition of service employees facing disciplinary actions were not permitted to Resign their appointment and it was in that basis that they the defendants refused the claimants resignation letter.

  1. Now paragraph 11.01 of Exhibit C14 provides that’s “……. the Commission may reject resignation notice of staff who are trying to avoid facing disciplinary procedures.”

  1. From the evidence before the court, the claimant was issued with a query on the 10th November 2015; Exhibit C9, the claimant sent to the defendants a resignation letter in protest; D5 and an internal memo titled query D7, written in response to the said query C9 both referring to the said query of the defendants, I am satisfied  from the contents that the claimants letter of resignation was written while the claimant was undergoing disciplinary procedure and in view of the legal position that parties are bound by the terms of their agreement and the courts cannot construct a new agreement for the parties. By law, where the contract of Employment has been reduced to writing, the court and the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract. See WESTERN DEV.CORP.Vs. ABIMBOLA [1966] 4NNSCC 172. NWAUBANI Vs. GOLDERN GUINEA BREWRIES PLC. [1995] 6NWLR Pt.400 Pg184, COLLEGE OF MEDICINE OF UNILAG Vs. ADEGBITE [1973]5SC149 and INTERNATIONAL DRILING CO. Vs. AJILILA [1976]2SC115

  1. I find that the defendants were well within their rights to reject the claimant’s letter of resignation in line with the provisions of Exhibit C14 and the circumstances of this case accordingly.

  1. Considering that in Exhibit C14, the provisions as to entitlement to  3-month notice is reserved and applies only in respect of Resignations and as the facts and issues before the court do not present a case of Resignation, the court is presented with a clear case of termination and considering that both Exhibit C4 and Exhibit C14 prescribe one month notice simpliteur for staff at termination, I find the claimant is entitled to only one month notice or one month salary in lieu, which I have found was not given to her.

  1. In reliefs (c) and (e), the claimant is asking for a declaration that the Stoppage of her Salaries and Allowances from October 2015 up to the purported date of Termination of Appointment, without being put on suspension is unconstitutional as the Complainant was not afforded fair hearing as provided by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and an order directing the Defendants to pay all her Outstanding Salaries and Allowances from October 2015. The defendants in acknowledging, partly the fact that they had not paid the claimant, maintain that they had stopped the claimant’s salaries and allowances on the 18th November, 2015 in accordance with the general principle of labour of “No work no pay” in line with their condition of service to which the defendants evince Exhibit D18. The problem with this exhibit is, it bears no indication that it was ever served on the Claimant as it is bereft of any acknowledgement or distinguishing dispatch marking as required by law. I find that, this document bears no indication that it was ever given to the claimant or that any money was ever even paid into her bank account. see NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B. followed in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082)1, where it was held that a, (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses. are all credible evidence of Service. It is the case of the defendant that the claimant was absent from duty on grounds of ill health from 12th October, 2015 only to appear between the 2nd and 5th November, 2015 and disappear again and appear once more on the 9th February, 2016 when she appeared before the Central Disciplinary committee. They also maintain that she was duly paid her full salary in October 2015 and part of her salary (1st tranche) for November 2015. I am satisfied that with respect to the claimant’s absence from 12th October, 2015 the defendants more or less directed that it be covered by the claimant’s annual leave; -See Exhibit D4and so the claimant is thus entitled to payment for that period, I find. But Exhibit D15- Exhibit D17 bear no indication that the money was ever received by claimant’s bank. The court has been merely presented with three computer printouts of staff salary voucher devoid of any indication of acknowledgment (debit or crediting advice). From the defendants pleading, the claimant is entitled to payment up to 18th November, 2015 and there is no reliable indication that she was paid, I so find.

  1. As for the claimant’s claims to payment (sic) post of 18th November, 2015 (sic) up to the date of termination, the defendants argued that the claimant had absconded and that they were entitled to evoke the concept of no work no pay, although the court has not been presented with any evidence that the defendants communicated to the claimant their intention to enforce the said rule, which would in itself amount to conclusive proof of actual or prove the question of absenteeism /abscondment, however bearing in mind that the Conditions of Service Exhibit C13 in Chapter 4 paragraph 4.04. (ix) provides for the “withholding /forfeiture of salaries” as a disciplinary measure, I find that for the claimant to successfully refute the defendant’s contention and argument as to the right to enforce the no work no pay rule, the claimant would require to present this court with irrefutable evidence that she actually worked for the said period under review i.e. October, 2015-/April 2015 up to the date of Termination. This I find the claimant has not so as to warrant the Court to further consider this contention. Therefore reliefs (c) and (e) fail and cannot be granted in the circumstances of this case.

  1. I had already stated that relief (d) cannot be granted as the nature of that relief is not compatible with the Employer /Employee or Mater and Servant relationship. See BCC PLC V. AGER [2010] 9 NWLR (PT. 1199) 292 SC, which held that there is a distinction between mere wrongful dismissal and an invalid or null dismissal; and that where the Court makes a finding of wrongful dismissal, a payment in lieu of notice will apply, but where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination as what the employer did was a nullity before the law. See ZIIDEL V. RSCSC [2007] 3 NWLR (PT. 1022) 554 SC. It is only in employments that are tainted or smack of/ with statutory flavour that can be declared null and void. All other employments can only be declared, where appropriate, as wrongful.

 

  1. Having found that the defendants are not authorized in law to terminate the claimant’s employment and the back dated letter of termination are sufficient to overturn the claimant’s termination, together with the finding that the nonpayment to the claimant of her one month salary in lieu of notice; in addition to the above, I also find that the non-payment of the claimant’s salary in lieu of notice with the letter of Termination is contrary to the law and constructively wrongful.

  1. In a master servant relationship such as this instant case, the law is that even when the procedure is not followed or the action is wrongful, the termination, notwithstanding all that,, will still stand on the basis that the court’s will not impose an employee on an unwilling employer. See the case of EKUNOLA v. C.B.N. (2013) 15 NWLR (PT. 1377)  224 @ 231 S.C. where the Apex Court held that an employer is obliged to follow the right procedure in summarily dismissing his employee. Where an employee’s dismissal is founded on allegation of gross misconduct, the employee is not entitled to any notice or salary in lieu of notice. Once a letter of dismissal is served on the employee he stands effectively dismissed and whether or not t or not the dismissal is wrongful to entitle him to damages is a question for the court to resolve.

  1. Now on the question of denial of  fair hearing;- In the instant case,  I find that by giving the Claimant a query as per exhibit “C9” and followed by the Claimant’s answer exhibit “C10” and the convening of various Disciplinary Committees to look into the answer as per exhibit “D13 and D18”, vis-à-vis the issues raised in the query, and permitting the claimant to address the Committee, the defendants have effectively afforded /given the claimant the requisite opportunity incidental and sufficient to satisfy the labour law standard of fair hearing being granted the claimant. And in the world of work fair hearing since MR YESUFU AMUDA GARBA & ORS V. UNIVERSITY OF MAIDUGURI [1986] LPELR-1305(SC); [1986] 1 NWLR (PT. 18) 550; [1986] ALL NLR 149; [1986] 2 SC 128, resonates as opportunity to be heard. An employee whose employment is terminated on ground of misconduct after being given an opportunity and has replied to a written query regarding the issue forming the basis of his termination cannot complain of lack of fair hearing. GUKAS v. JOS INTERNATIONAL BREWRIES LTD [1991] 6 NWLR (Pt. 199) 614. SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 351 IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 640 referred to.] U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. [YUSUF v. U.B.N. (1996) 6 NWLR (PT. 457) referred to.] (Pp. 41-42, PARAS. H-B) OSUMAH v. E.B.S. (2004) 17 NWLR (PT. 902) 332 referred to.] (P. 39, PARAS. E-G). See also REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410

  1. Furthermore, the law requires that for a claimant to raise the plea of denial of fair hearing in a labour court the claimant must have raised the denial in her very first response to the allegation of misconduct. See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [2013] 35 NLLR (PT. 103) 40 NIC; – I find the claimant in the instant case did not raise the question of fair hearing or lack of it in C10, her response to query, her first response in the disciplinary action, or even in Exhibit D10, the claimants response to the Chairman, Central Disciplinary Committee. Reliefs (c) and (e) have not been substantiated in the instant case, I find and therefore fail.

  1. All in all, the claimants case succeeds but only this far, reliefs (a) and (b) succeed in part reliefs (c), (d) and (e) fail.

  1. This is the court’s judgement:

  1. It is hereby declared that the 2nd Defendant lacked the competence to terminate the appointment of the Complainant being a staff on CASS 5-1.

  1. It is hereby declared that the Letter of Termination of Appointment dated 31st August, 2016 signed by S. R. Uba for the 2nd Defendant is wrongful and of no effect whatsoever.

  1. The defendant shall pay the claimant one month’s salary in lieu of notice guaranteed by their terms of contract.

  1. The defendant shall also pay the claimant one month’s salary as damages for constructive wrongful termination of appointment.

  1. The defendant shall pay the claimant her due salaries or entitlements in allowances for the period of October -November 18th 2015 or where such has indeed already been paid present to the Chief Registrar of this court, verifiable evidence of payment having been made to the claimant of her salaries or entitlements in allowances for the period of October 2015 -November 18th 2015.

  1. Cost of this suit is placed at N150, 000.00 One Hundred and Fifty Thousand Naira.

  1. All sums to be paid within 30 days thereafter 10% interest shall inure.

  1. This is the court’s judgment and it is hereby entered accordingly.

………………………………………….

HON. HUSTICE E. N. AGBAKOBA

JUDGE

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