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MR. FESTUS AIGUOBAUEGHIAN AMAYO VS UNIVERSITY OF BENIN & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATE:  13TH NOVEMBER, 2018           

SUIT NO. NICN/BEN/13/2017

BETWEEN

  1. FESTUS AIGUOBAUEGHIAN AMAYO

CLAIMANT

AND

  1. UNIVERSITY OF BENIN
  2. THE REGISTRAR AND SECRETARY TO

THE GOVERNING COUNCIL,

UNIVERSITY OF BENIN

  1. THE VICE CHANCELLOR                                 

UNIVERSITY OF BENIN

  1. THE GOVERNING COUNCIL,

UNIVERSITY OF BENIN, BENIN-CITY.

 

DEFENDANTS

REPRESENTATION:

W.O Ovbiebor holding the brief of George Umolu Esq with him are A.O Imiete, Kehinde Ojo, and A.O Ajayi for the Claimant.

C.P. Okechukwu, with him is M.O Ishola for the Defendants.

 

                                                JUDGMENT

The claimant approached this Court by a General Form of Complaint filed on the 18th          July 2017, claiming against the defendants the following reliefs:

  1. A DECLARATION that the procedures followed by the defendants in dismissing the claimant from the services of the 1st defendant is unconstitutional, ultra vires and inconsistent with Section 35[sic] of the Constitution of the Federal Republic of Nigeria 1999 and the procedures   laid down by the Regulation Governing the service of the Senior Staff of the 1st defendant, the provisions of the University of Benin (Transitional Provisions )Act 2004 and other labour laws relating to the termination of appointment with Statutory Flavour.

 

  1. A DECLARATION that the purported dismissal of the claimant from the service of the 1st defendant vides a Letter Ref No. REG/SSA/P.11201/71 University of Benin(Transitional Provisions) Act 2004, Regulation Governing the service of the Senior Staff of the University of Benin and other Labour Laws in respect of termination of appointment with Statutory Flavour and  therefore unlawful, ultra vires, null and void.

 

  1. A DECLARATION that the employment of the claimant with the 1st defendant is still subsisting.

 

  1. A DECLARATION that the claimant is entitled to his entire emolument from November 2016 when the claimant was suspended from office through February 2017 when his appointment was purportedly terminated to the date of his reinstatement.

 

  1. An Order directing the defendants to reinstate the claimant to his employment with the 1st defendant without any loss of seniority, rank or entitlement whatsoever.

 

  1. An Order directing the defendant to pay the claimant all his entitlement from November 2016 when the claimant was suspended from office through when his appointment with the 1st defendant was purportedly terminated by the Defendant to the date of reinstatement.

 

It is the claimant’s case that he was offered a temporary appointment by the 1st defendant on the 24th March 2011 and his appointment was later confirmed on the 20th July 2013. That sometimes in April 2016, a colleague of his, One Mr. Giwa Idehen asked his sister one Miss Rebecca Olohigbe Uwaifo to give him some money for him to assist them pay online because he (Mr. Idehen) had no network connectivity, he averred that he accepted to help them but had difficulty hence he had contacted another colleague, Mr. Bryon Orakwe who used to work in the Bursary Department but was re-assigned to CRPU Department to assist him. He was later on informed by Mr. Bryon Orakwe payment had been completed and he checked on the Uniben Portal Online to confirm same and communicated same to his colleague Mr. Giwa Idehen. He continued that some months after the payment, he was invited by the 1st defendant’s security department to answer some questions relating to School fees Payment given to the claimant by Mr. Giwa Idehen. He stated that he was shocked to receive a query letter dated the 22nd September 2016 and he responded to by a letter dated 23rd September, 2016 denying the entire allegation. After which he was invited to appear before the Senior Staff Disciplinary Committee (SSDC) on the 7th of October 2016, he rushed to meet the committee and explained, albeit impromptu his involvement in the act, he was however issued another letter dated 13th October, 2016, on the 14th October 2016 to appear before the SSDC, he appeared but no question was put to him by the Committee. That he was suspended on the 8th of November, 2016 without salary. That by a letter dated 22nd February 2017 he was dismissed from the employment of the 1st defendant. He contended that the procedure followed by the defendant in terminating his appointment is unconstitutional  and completely in violation of the Act establishing the 1st defendant and the Regulation governing the service of the Senior Staff of the 1st defendant.

 

The defendants on the other hand filed their joint statement of defence on the 21st June 2017, they averred that the University sometimes in 2016 discovered fraud in the online payment of Students School fees, this led to preliminary investigation by the security department of the University and a report was submitted thereto, that the claimant was found to have been involved in the case of receiving school fees in cash from a student which the claimant gave to one Byron Orakwe who was erstwhile Staff of the University. That during the preliminary investigation by the University security department, the claimant gave misleading information in writing that he was given money to pay school fees for one Miss. Rebecca Oloigbe Uwaifo which he said he paid through his First Bank Account and have him print out and he promised to supply his statement of account for clarification. That upon the discovery that Bryon Orakwe was under investigation for fraud, he gave another information in writing different from the previous wherein he admitted giving  the said Bryon Orakwe the school fees of Miss Rebecca Olohigbe Uwaifo  and that of his brother for the purpose of payment. They pleaded that the claimant was aware that Bryon Orakwe is neither a Bank nor an agent of the University authorized to collect the school fees of the Students in cash that the claimant is not entitled to go outside his official schedule to collect any cash from any student and pay their fees by proxy. That the claimant is also aware that it is an act of serious misconduct to give false information to the University management and in particular, on an issue bothering on finances of the University and his action fall short of what is expected of a public officer in the status of the claimant in the university. They stated further that due process of the law was followed, the percepts of fair hearing was observed and the laid down procedures of the University were complied with in the process that led to the termination of the claimant’s employment.

 

During trial, the claimant testified for himself as CW1, he adopted his sworn deposition dated the 18th May, 2017 and his further written statement on oath dated 16th October, 2017 as his evidence in the case, he tendered some documents which were admitted in evidence by the Court and marked Exhibit F1-F8. The defendants also testified through One Uyi-Oghosa Choice Osadolor, a legal officer in the 1st defendant he adopted his statement on oath dated the 21st June 2017 and presented some documents which were admitted and marked Exhibit U1 and U2.

 

In compliance with the rules of this Court, parties caused their final written address to be filed; the defendants filed theirs on the 20th July 2018 and canvassed three (3) issues for the determination of the Court viz:

  1. Whether from the evidence (oral or documentary) before the Court, the claimant’s constitutional right to fair fearing was not complied with before his dismissal from the services of the defendants
  2. Whether having regard to the procedure leading to the sack of the claimant by the defendant, there was a breach of the University Regulation Governing the Condition of Service of the claimant.
  3. Whether having regard to the allegation of misconduct against the claimant, the defendants   were justified in dismissing the claimant from the service of the university.

 

On issues one and two, counsel noted that the burden of proof in a case of this nature rest squarely on the claimant and that when a claimant alleges the breach of his right to fair hearing he must prove same, he cited the Supreme Court case of Ardo v. INEC [2018] All FWLR Pt.918 pp 32 and the Court of Appeal decision in Ajayi v. N.U.R.T.W [2009] All FWLR Pt.477 page 175. He stated that the facts contained in Paragraphs 14, 16, 17, 19, 20, 23 and 24 of the Statement of facts are expressly admitted by the claimant and from the letter dated 23rd September 2016 and 6th October 2016 are clear evidence that the defendants afforded the claimant of every opportunity to defend himself of the allegation of misconduct which contravenes ChapterX11, Section 3, A (1) & (IX) of the Regulations Governing the Service of the Senior Staff of the University of Benin. That furthermore, Exhibits U1 and U2 are prima facie case against the claimant based on his conflicting statement. On the allegation of the claimant in his reply to the statement of defence that he ought to have not less than 2 weeks to make representation by virtue of the provisions of Chapter X11 Section 5(B) (IV) of the Regulations Governing the Service of the Senior Staff of the University of Benin, counsel contended that the provision referred to by the claimant governs cases of termination of appointment and not cases of dismissal. He also continued that the claimant’s complaint that the governing council did not set up an investigative panel is misconceived as the Council acted through all the organs/department of the University by virtue of delegated powers. It is counsel’s position that an employer is not bound to wait for trial or conviction of an employee alleged to have committed fraud or other dishonest act before melting any disciplinary action including dismissal of such an employee, he cited B.A. Imonikhe v. Unity Bank Plc [2003] All FWLR Pt.586, pg 427, Ratio 1. He stated that the fact that the claimant was not tried or convicted for the offence of conspiracy or fraud in the law Court cannot make his dismissal by the University to be null and void, and also that no notice was given to them to produce the original record of proceeding of the Disciplinary Committee as such it is the duty of the claimant to substantiate his claim that there is nothing incriminating was found against him by the Disciplinary Committee. Counsel continued that on the allegation of the claimant that he was invited by the Disciplinary Committee of the defendant and was not questioned, counsel contended that it is not every sitting of the panel especially in internal administration of inquiry that oral evidence is required and that it is enough for the claimant to know the case against him and to respond to same in writing as such the allegation of fair hearing was misconceived, reference was made to Hart v. The Military Government of Rivers State &Ors [1976] 11 & 12 reprint pg 109, Eke v. The Military Administrator, Imo State [2007] All FWLR Pt, 381 pp. 1720. That from the documentary evidence before the Court, the claimant had an opportunity to make representation through his statements dated 22nd June 2016 and 24th June 2016 and answer to query and invitation to the Disciplinary Committee on two occasion as such in compliance with the doctrine of Audi Alterem Partem

 

On issue three, counsel stated that a crucial issue to be decided by this Court is whether the defendants are justified in sacking the claimant from the university on account of misconduct, he continued that the allegation of misconduct against the claimant bothers on conspiracy with another staff in the sum of N136,000 (One Hundred and Thirty-Three Thousand Naira) school fees of a student and that the claimant never denied the fact that he meddled with the said sum which was outside his official duty,  that by virtue of page 142 of Exhibit F7, unruly behavior or improper behavior that scandalizes the University amount to misconduct, and that his conduct fell  short of an officer who should remain in the system if the good name of the University must be upheld. Counsel then concluded that the claimant’s case discloses no cause of action, he relied on the decisions of Oshobaja v. Amud [1992] 6 NWLR (Pt. 250) pg 690 at 702, Egbe V. Adefarasin [1985] 1 NWLR (Pt. 3) pg 549, Thomas V. Olufusoye [1986] 1 NWLR (pt.18) pg689 and urged the Court to dismiss same.

 

The Claimant on the other hand also filed his final written address on the 24th August 2018 and raised five (5) issues for the determination of the Court viz:

 

  1. Whether from the circumstances of this case, the Defendants comply (sic) with the procedure specified in the University of Benin [Transitional Provisions] Act, 2004 and Regulations Governing the Service of Senior Staff of the University of Benin in dismissing the Claimant’s appointment with the 1st Defendant.
  2.  Whether from the circumstances of the case, the 4th Defendant  gave the Claimant fair hearing before his appointment with the 1st defendant was dismissed by the Defendant
  3. Whether from the circumstances of this case, the defendant can be said to have proved or established the allegation of misconduct leveled against the Claimant upon which the Claimant’s appointment with the 1st Defendant was dismissed.
  4. Whether it is lawful for the Defendants to dismiss the Claimant’s appointment with the 1st Defendant and give the dismissal a retrospective effect
  5. Whether the claimant has proved the case by preponderance of evidence or by balance of convenience to entitle him the reliefs sought in this case.

 

In arguing issue one, learned claimant’s counsel submitted that the claimant’s appointment with the defendant is a statutory flavored employment which cannot be terminated/dismissed like a mere master/servant relationship, he referred the Court to Paragraph 3 of the Statement of fact, and the Regulation Governing the Service of the Senior Staff of the 1st defendant (Exhibit F8) and cited Oloruntoba-Ojo v. Abdul-Raheem[ 2009] 13 NWLR (Pt 1157) P.83, he  continued that since parties are ad idem on the regulation governing the claimant’s appointment, the issue at stake here is did the defendants comply with the provisions of the said Act before dismissing the employment of the Claimant from the 1st defendant, he continued that it is no doubt that the burden is on the claimant to establish that his termination/dismissal is unlawful and of which he has led evidence to that effect in paragraphs 2,3,7, and 8 of the Statement of Fact that he is an employee of the 1st defendant and paragraph 30 also of the Statement of fact, the regulation governing his employment and also paragraph 6 of the Statement of fact that the 4th defendant is the body responsible to discipline the Senior Staff of the 1st defendant. Counsel contended that that the defendant have failed completely to show that they complied with the provisions of the laws governing the claimant’s appointment with the 1st defendant. He continued that the claimant have evidenced and equally pleaded the stages of disciplinary process in the 1st defendant’s establishment which is in consonance with the Regulation Governing the appointment of senior staff, he made reference to Section 5 of ExhibitF8. He also contended that the failure of the defendant to set up Ad-hoc Committee on Enquiry is fatal to the Defendants case and that there is no law or regulation that establishes the SSDC neither did the defendant tender any document showing or suggesting that the Governing Council delegated its power to the SSDC to investigate the matter, Counsel cited Bamgboye v. University of Ilorin [1999] 10 NWLR (pt.622) 290, Chapter XII Section 5( iv) of the Regulations and Section 17 of the University of Benin (Transitional Provisional Act). He submitted that the entire powers created in Section 17(1) of the University of Benin Act is vested solely on the Governing Council, he noted that there is no evidence before the Court to show that the 4th defendant was seized with the fact of the case or that the case came up before it before the employment of the claimant was terminated/dismissed, also the record of the proceedings of the Governing Council where the decision to dismiss the claimant’s appointment was taken. As such, there is nothing before the Court to show that the decision to dismiss the claimant’s appointment by the 1st defendant was a decision of the Governing Council, See the case of Emine v.State [1991] 17 NWLR (Pt. 204) 480 at 495, F.C.S.C v. J.O. Laoye [1989] 2 NWLR (pt.106) 652, there is also no evidence that the Governing Council delegated its power to the Security Department or SSDC. He also submitted that the provisions of Section 15(1) of the University of Ilorin Act are impari materia with Section 17 of the University of Benin (Transitional provisions) Act 2004.

On issue two, Counsel submitted that the failure of the defendant to set up Ad hoc Committee of inquiry to investigate the allegation against the claimant and the 4th defendant’s failure to carry out its duty under Section 17 of the Act establishing the 1st defendant amounts to denial of fair hearing, he cited Kanda v. Government of the  Federation of Malaya [1962] AC 322 at 337, he continued that the failure of the defendant to set up Ad-hoc Committee of Inquiry to investigate the allegation against the claimant and the 4th defendant’s failure to carry out its duty under Section 17 of the Act establishing the 1st defendant amount to denial of fair hearing, he also argued that it is expected that before the 4th defendant could find the claimant liable to those allegation, he ought to have been given a hearing by the 4th Defendant. Reliance was placed on the Supreme Court decision Oloruntoba-Ojo v. AbdulRaheem supra. He continued that the action of the defendant falls short of the requirements laid down by the Apex Court particularly on issue of fair hearing and that no panel of inquiry was set up to investigate the case of the claimant and the Governing Council failed to play their role as set out in Section 17 of the University of Benin {Transitional provisions} Act 2004 and the Regulations Governing the Service of Senior Staff of the 1st Defendant and that the 4th defendant did not give the claimant fair hearing before his appointment with the 1st Defendant was dismissed.

 

On issue three, Counsel submitted that the defendants have failed completely to establish the allegation that the claimant aided Mr. Byron Orakwe to perpetuate fraud and student school fees payment diversion. Counsel reiterated the position of law that parties are bound by their pleadings, he cited the case of A.I. Investment v. AfriBank (Nig) Plc [2013] 9 NWLR (Pt. 1359) 380 at 412, pars E-F. He also argued that the claimant was not afforded the opportunity to defend the allegation against him and was not given the opportunity to cross-examine his accusers or any witness called by the defendant, he then submitted that giving the clamant an invitation to appear on the same day he was given the letter is inappropriate as any document to be used against him must be given to him in advance thereby putting him on notice of what he is expected to meet at the Disciplinary Committee. He also noted that the alleged misconduct or fraud was not stated or referred to in the two SSDC letters of invitation (Exhibit F4), that there is equally nothing to show vide record of proceedings that the claimant was allowed to cross-examine any witness called by the defendants against him. Counsel contended further that the onus of proving the existence of the proceedings if any is on the defendants and not the claimant. He continued that assuming without conceding that there was a record of proceeding, the failure to tender the original or a photocopy is fatal to the case of the defence, he relied on Section 167(d) of the Evidence Act 2011 It is the also the contention of claimant’s counsel that the defendants did not produce any law that the act of the claimant contravened or produced any witness to give oral evidence of the existence of such law before this Court and thus the failure of the defendant to prove their allegation of misconduct against the claimant is fatal. Counsel placed reliance on the Court of Appeal decision in Igwilo v. Central Bank of Nigeria [2000] 9 NWLR (Pt. 672)P. 302 Ratio 2, S.P.D.C {Nig} Ltd v. Olarewaju [2002] 16 NWLR 9pt. 7920 P.38 Ratio 5, Chiagorom v. Daimond Bank [2014] 44 NLLR (pt.140) Pg 401. He concluded on the issue that no reason was given in the dismissal letter of the claimant’s appointment by the defendant and none was established both before the SSDC, Governing Council and in the Court and that there is no document to substantiate it as such the defendant have not proved or established the allegation of misconduct levied against the claimant.

 

It is the submission of learned claimant’s counsel on issue four that it is unlawful for an employer to terminate/dismiss the appointment of its employee and give same a retrospective effect; he cited the case of Bisiriyu Adegoke Sheu v. Lagos NUTRW (First BRT) Cooperative Society Ltd [2015] 62 NLLR (Pt 216) 40, he argued that the letter dismissing the claimant’s appointment was dated 22nd February 2017 to take retrospective effect from 2nd February 2017 issued by the defendants is unlawful.

 

In arguing issue five, learned Counsel submitted that the claimant is entitled to all the reliefs sought in the case, he placed reliance on the following cases, Olufeagba v. Abdul-Raheem [2009] 18 NWLR 9Pt. 1173)P. 384, P.H.C.N v. Offoelo [2013] 4 NWLR (Pt. 1344) P. 380, F.M.C Ido-Ekiti v. Alabi [2012] 2 NWLR (pt 1285) p. 411 Raio 8, Counsel contended that the defendants did not follow the procedure laid down in Section 17 of the University of Benin (Transitional Provisions) Act, 2004 in dismissing the Claimant’s appointment with the 1st Defendant and that since the claimant was suspended he was not paid his basic salary while on suspension. Counsel then noted that it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from an abuse or misuse of power. He relied on Ojukwu v. Governor of Lagos State 1986] 2 NWLR (Pt. 18) 621 and concluded that the Claimant has proven his case by the preponderance of evidence or balance of convenience to entitle him to the reliefs sought.

 

The Defendant filed a Reply on Point of Law and he further submitted that the letter of appointment of the claimant tendered in evidence is a contract of service as set out by the regulations of the 1st defendant hence the Court cannot be urged to rewrite the contract for the parties as the parties are bound by the terms of their contract, he placed reliance on the Court of Appeal decision of W.A.E.C v. Oshionebo [2007] All FWLR (Pt.370), page 1506 Ratio 7 and furthermore, he noted that in as much as there is a compliance with the provisions of Exhibit F7, the claimant’s appointment was rightly dismissed and also that there is a presumption of regularity of an official act in law which is in line with the latin maxim “Omnia Praesumnter rite ac sovemnites esse ease acta” which means “ all things are presumed to have been rightly and regularly done.” Counsel also relied on the Supreme Court decision of Ugwu v. State [2013] All FWLR (Pt.694) page 1. He noted that so long that the Governing Council has approved the dismissal of the Claimant’s employment; the argument of the claimant’s counsel that there was a breach of the provisions of Section 17 of the University Act is unfounded. He continued that the Claimant’s letter of dismissal cannot be taken in isolation from the series of correspondences leading to his sack, he noted the position of the law in the Court of Appeal decision of Animashaun v. Ogundime [2016] All FWLR  (Pt.832) 1783, Ratio 7 on the impropriety of the Court construing a single document in isolation and that the letter of dismissal of the claimant must be construed along with the  query issued to him, reply to the query, invitation to the disciplinary committee and the dismissal letter itself. He stated that it is the law that address of Counsel must Center on issues joined by parties, he cited Olaniyan V, Adeniyi [2007] All FWLR (Pt.387) 916, where the Court of Appeal held that it is the duty of counsel to make his submission in line with his client evidence, that since issues were not joined by parties on the retroactive nature of the letter of dismissal, any submission by the claimant’s counsel goes to no issue. Learned Counsel noted that the principle of stare decisis can only be applicable where the facts are similar. That in the case of Oloruntoba-Ojo Supra, the services of the appellant were no longer required and three months’ salary in lieu of notice was paid to the employee whilst in the instant case, the letter of dismissal of the Claimant clearly emanated from the Council’s decision to flush him out of the system as a result of his gross misconduct as shown in Exhibit U1 and U2.

 

After a careful consideration of all the processes filed before this Court, the accompanying documents tendered during trial, I watched the demeanor of the witnesses and read the arguments of learned counsel for both parties, it is my respectful view that the issues that would best determine this suit are:

 

  1. Whether or not the claimant was unlawfully dismissed?
  2. Whether or not the claimant is entitled to the reliefs sought?

 

Before going into the crux of this suit, there is a need to clarify at this point a misconception of the claimant at paragraph four of his reply to the defendants’ statement of defence which is that no Court of law has tried nor convicted him for the offence of conspiracy or fraud. I wish to unequivocally state that, that is no longer the position of the law. There is a departure from that position of law as judicially enunciated in apex Court case of P.C. Mike Eze v Spring Bank Plc, [2011] 12 S.C. (PT.1), 173 the Court affirming its earlier decision in Arinze v First Bank of Nig Ltd [2004] 12 NWLR (PT. 888) 663 @ 673, went on to state that it was not necessary for the respondent in that case which is the Bank to have waited for the prosecution of the appellant for the criminal offence disclosed in his various acts of gross misconduct, before dealing with him with appropriate dismissal. It is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also discloses criminal offences under any law; the employer has to prosecute or wait for the outcome of the prosecution of the employee for the criminal offence before proceeding to discipline the employee under the contract of service or employment. Rhodes Vivour, JSC; added thus-

” … the master does not have to report the matter to the Police and wait for the conclusion of a subsequent criminal trial before he dismisses the errant employee. The master can proceed to dismiss the employee once the master is satisfied that the employee did something against the interest of the master…”

 

The current position of the law is as clearly stated above by the Apex Court and hence the defendants/employer need not have to first try the claimant/employee in a Court of law or wait for the outcome of the Court’s decision before exercising its disciplinary powers over its employee. It is in consequence that I find claimant’s averment in this regard unmeritorious and thus discountenanced. I so hold.

As regards issue one, it is the Claimant’s claim that the procedures followed by the defendants in dismissing him from the services of the 1st defendant is unconstitutional, ultra vires and inconsistent with the Constitution of the Federal Republic of Nigeria 1999 and the procedures laid down by the Regulation Governing the service of the Senior Staff of the 1st defendant, the provisions of the University of Benin (Transitional Provisions )Act 2004 and other labour laws relating to the termination of appointment with Statutory flavour. The defendants on the other hand submitted that due process of the law was followed, the percepts of fair hearing was observed and the laid down procedures of the University were complied with in the process that led to the termination of the claimant’s employment.

 

There is no dispute between the parties as regards the statutory nature of the employment of the claimant. This is so in view of the fact that both parties are ad idem that their relationship is regulated by the University of Benn Act and the regulations made thereunder. An employment is said to have statutory flavour when the procedure for appointment, promotion and discipline of an employee is governed by statute. See the cases of Olaniyan v. University of Lagos [1985] 2 NWLR (pt.9) 599; Imolame v. WAEC [1992] 9 NWLR (Pt. 265) 303, Shitta-Bey v. FSCR [1981] 1 SC 40. The duty of the Court in determining an employment governed by statute is to ensure that the procedure laid down in the statute are complied with and followed to the letter by an employer in determining its relationship with an employee, as any breach would render the exercise of termination/dismissal null and void. The cases of Comptroller General of Customs & Ors v. Gusau [2017] LPELR- 42081; Ojabor v. Hon Minister of Communications &Ors [2018] LPELR-44247 CA; U.M.T. H.M.B v. Dawa [2001] 16 NWLR (Pt. 739) 424, Mrs Fakuade v. OAU Teaching Hospital [1993] 5 NWLR (Pt.291) P.24 are instructive.

 

This procedure ensures that an employee is given a fair hearing in the procedure leading to his dismissal as it is settled that before an employer can dismiss or terminate the employment of its employee, the requirement of fair hearing must be strictly adhered to. It is by giving an opportunity to a person whose rights and obligations may be affected to make representation to the administering authority before that authority makes decision affecting that person. It is a vital prerequisite, a breach of same goes to the root of the investigation and thus will be declared a nullity by the Court. See the cases of Faleye &Ors v. Dada & Ors [2016] LPELR 40297 SC; Banke & 178 Ors v. Akure North Local Government [2016] 64 NLLR (Pt 226) 155. This is equally founded on the twin pillars of Natural Justice rooted in the maxims audi alteram partem (hear the other side) and nemo judex in casua sua (you cannot be a judge in your own case). It means the affected person is given opportunity to defend himself by being given opportunity and enough time to present his defence to any allegation made against him, it means in simplest term an opportunity to be heard, See the cases of Ekeuzor v. Union Bank of Nigeria Plc [2014] 42 NLLR (Pt. 133) 758, P.792, pars A-B, Mohammed v. Kano Native Authority [1968] 1 All NLR 424. It is trite law that where an employee is alleged of misconduct, the employer must acquaint him of the allegation by issuing him a written notice or query stating the grounds of the miscounduct against him, give him a chance to defend himself and invite him to make an appropriate representation or defence thereto; any documents to be used against him must be given to him before the date of the panel to enable him satisfactorily prepare for what he would meet at the panel of the disciplinary committee and be given an opportunity to cross-examine his accusers if any, be allowed to call any witnesse/s if any. See the cases of Benin Electricity Distribution Company Ltd v. Esealuka [2013] LPELR-20159 CA, Audu v. Petroleum Equalization Fund Management Board &Anor [2010] LPELR-3824CA.

 

It is plain on record that the employment relationship between the claimant and defendants is governed by University of Benin (Transitional Provisions) Act (hereafter called ‘the Act’) and the Regulation Governing the Service of Senior Staff University of Benin as stated supra. The position of the law is equally clear that where more than one document governs a particular contractual relationship, no single one will be construed in isolation, all documents in view of the contract must be construed together. See the cases of Samuel & Anor v. Lanre & Ors [2015] LPELR-25982CA; Udeaga v Benue Cement [2006] 2 NWLR (Pt 965) p. 600. An indepth examination of the Act, Section 17 provides for the Removal of academic and administrative officers and other staffs thus:

 

  1.  If it appears to the Council that there are reasons of believing that the  Deputy Vice-Chancellor  or any  other person employed as a senior member, administrative, technical or professional staff of the University should be removed from his office or employment on the ground of misconduct or of inability to perform  the function of his office or employment the council shall-
  2. Give notice of those reasons to the person in question;
  3. Afford him an opportunity to make representation in person on the matter to the council
  4. If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangement
  5. For a joint committee of Council and to Senate  to investigate the matter and to report in it on the Council; and
  6. For the person in question to be afforded an opportunity of appearing before, and being heard by, the committee with respect to the mater

And if the Council, after considering any representation and report made in pursuance of this subsection, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him an instrument in writing signed on the direction of the Council”.

 

Also, Exhibit F8 the Regulation Governing the Service of Senior Staff University of Benin at Chapter XII clause 5B governs the disciplinary procedure for misconduct and serious misconduct provides thus;

 “5 B. TERMINATIONS, DISMISSAL AND RETIREMENT

Any officer in the service of the university may be terminated, dismissed and or retired by the Council of the University on grounds stated under Sections 3 and 4 of this Chapter only in accordance with the following rules:

  1. The Registrar shall notify the officer in writing of the grounds, upon which it is proposed to terminate, dismiss and or retire such officer, and he shall be called upon to state in writing before a date to be specified and grounds upon which he relies to exculpate himself

…………II…………;

III. Ad-hoc Committee of Enquiry

(a) The alleged misconduct shall be investigated by an Ad-hoc Committee of Enquiry as may be set up by the Head of Unit, Head of Department, Dean, Provost, Director in consultation with the Vice Chancellor, which committee shall consist of at least three persons, one of whom shall be a representative of the relevant Union to which the officer is a member.

(b) The vice Chancellor shall stipulate the terms of reference of committee.

(c)  If any witness is called to testify, the officer shall be entitled to be present and to put questions to each witness.

(d) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto.

(e) If the officer does not furnish any representation within the time fixed, the Committee of Enquiry may take such actions, as it seems appropriate against him.

(f) if the officer submits representations and the Committee of Enquiry is not satisfied that he has exculpate himself, and consider that the officer should be dismissed, it shall make recommendations accordingly.

(g) if upon consideration the representations of the officer, the committee of Enquiry is of the opinion that the officer does not deserve to be dismissed from service but deserves some other punishment as it considers appropriate.

(h) if upon consideration the representations of the officer, the committee of Enquiry is of the opinion that the officer does not deserve to be dismissed, but that the facts of the case disclose grounds for requiring him to retire compulsorily, it shall so recommend.

The above captured disciplinary procedure is as regards misconduct or serious misconduct stipulated in Sections 3 and 4 of chapter XII of the regulation. The disciplinary procedure captured supra is in tandem with the general position of the law on discipline of an employee with statutory flavour. It is noteworthy that the major procedure to be followed by the defendants before dismissing the claimant on the allegation of misconduct is the issuance of query to him and also affording him an opportunity to make representation in person on the matter to the Council, thereafter a joint committee of the Council is called upon to investigate the alleged misconduct after which the alleged misconduct shall be investigated by an Ad-hoc Committee of Enquiry as may be set up by the Head of Unit, Head of Department, Dean, Provost, Director in consultation with the Vice Chancellor, he shall also be given the documentary evidence to be used against him and be allowed to cross examine witness/es if any. After the consideration of any representation, the Council if satisfied that he should be removed, then it may so do by an instrument in writing signed under/by the directive of the council. As reiterated, all the above procedure enunciated by the above Statute and Rules are to ensure fair hearing in the disciplinary procedure of its officers. It is the law that where an employment is protected by statute, the process of removal, suspension, termination, dismissal retirement etc. must be in compliance with the extant statute governing the employment and a breach of any statutory provision renders the process of such removal, suspension, termination, dismissal retirement void and of no effect. See the case of Obianwuna v. NEPA [2016] LPELR 40935CA. 

From the record before the Court, the Claimant by Exhibit UI dated 22nd  and 24th of June, 2016 made various statement at the Security department of the 1st defendant, he was issued with a query dated 22nd September 2016 (Exhibit F3) by the 1st defendant signed under the hand of the Deputy Registrar on the grounds that he gave a misleading statement on the 22nd of June, 2016 and also aiding Mr. Bryon Orakwue to perpetuate fraud with regards to the alleged school fees diversion perpetrated by one Mr. Byron Orakwue, a programmer (I) in CRPU/ICTU, Vice Chancellor’s office which is in effect a misconduct as it is in contravention of Chapter XII, Section 3, A(10 & (IX) of the Regulations Governing the Senior Staff of the University of Benin. He responded by a letter dated 23rd September 2016 to the said query, he was given a letter dated 6th October, 2016 to appear before the Senior Staff Disciplinary Committee (SSDC) on the 7th October 2016 (Exhibit F4). Again he was invited on the 13th of October, 2016 to appear before the Senior Staff Disciplinary Committee. He was suspended on the 8th of November, 2016 (Exhibit F5) and on the 22nd of February, 2017 he was dismissed by the 1st defendant with effect from 2nd of February, 2016 (Exhibit F6). It is germane to state that there is no evidence on record to evince that an Ad-hoc Committee was constituted by the claimant’s unit head to look into the matter. No report or minute of the Senior Staff Disciplinary Committee was placed before the Court to show what transpired at the SSDC meeting. There is nothing to show that he was afforded an opportunity to examine or cross-examine the witness one Mr Idehen who according to the claimant was at the SSDC. Rather the defendants in this suit made a heavy weather on Exhibit U2 when it argued that the Security department Report clearly shows that an investigation was carried out and that the claimant made representations therein. I wish to state that there is nothing evincing that the document relied upon by the defendants and used against the claimant was given to him before he attended the SSDC panel; also the Security officer who allegedly submitted Exhibit U2 to the SSDC was not present at the panel to enable the claimant cross-examine him in compliance with Chapter XII rule 5B of exhibit F8. Noteworthy is also that by exhibit U2, it did not implicate the claimant in any way. Infact it is plain from that exhibit that the person found culpable by the investigatory body constituted by the VC, i.e. the security department that one Mr. Byron Orakwue, a programmer and a staff of ICTU/CRPU, be arraigned before the SSDC and sanctioned for gross misconduct, to wit diversion of students’ school fees payment. I then wonder why it turned out that the person that was arraigned before the SSDC is the claimant. There is no evidence on record to show that claimant was in any way alleged to have committed any act of misconduct. The defendant equally failed or deliberately refused to tender the report of the SSDC who investigated the alleged misconduct of the claimant. The import of which in my respectful view is because if they had tendered it before the Court it would be unfavourable to their case. See 167(d) of the Evidence Act 2011. The argument of learned counsel to the defendants in this regard is the most uncharitable, it smacks off good knowledge of the extant position of labour law, which is that where an employer by its conduct, action and facts before the Court evinces that there was an allegation of misconduct for which the employee is dismissed, they are of a required by law to prove the reason for which he was investigated and eventually dismissed. See Shell Petroleum Co. Ltd Vs Chief Victor Sunday Olanrewaju (2008) 18 NWLR (Part 1118) 1 at 19H to 20 A – B. This, the defendants have woefully failed to do. I have again observed that the defendants shot themselves in the foot the more by giving claimant’s letter of dismissal a retrospective effect. Meaning that the claimant’s dismissal which was vide a letter dated 22nd February, 2017, was to take effect on the 2nd of February, 2017. This is not permissible in law. See Shenaike v. Bras Ventures Limited [2016] 64 NLLR (Part 225) 53; Prince Boniface Agbu v. Civil Service Commission Nasarawa State & Ors [2010] LPELR-4870. Termination or dismissal of an employee, the law is trite must not be given a retrospective effect. This is because the law looks forward, not backwards as succinctly captured by this latin maxim, “lex prospicit non respicit”. It is obvious from the record and all stated above in this judgment that the defendants failed to follow the procedure listed in the Act and the Regulation governing the employment of the senior staff before determining the employment of the claimant. As stated above, employment with statutory flavour has to be determined in strict obedience with the rules and regulation guiding the employment and a breach thereof, the retrospective effect given to the letter of dismissal is equally fatal to the case of the defendants as the consequent of both is that the decision reached is a nullity and liable to be set aside by the Court. See the cases of Civil Service Commission Imo State & ors v. Ukweozor [2017] LPELR -42856 CA; Darma v. Eco Bank Nig Ltd [2017] LEPLR-41663 SC. It is against this backdrop that I find that the foundation upon which the Claimant’s employment was dismissed is flawed as there was no stern compliance with the provisions of the Act and the Regulation which is the pillar upon which the employment relationship between the claimant and the defendants stands. It is in consequent thereof that I find that the claimant appointment from the service of the 1st defendant vide a Letter Ref No. REG/SSA/P.11201/71 dated 22/2/2017 is unlawful, null and void and thus set aside.

 

Regarding issue two, having held that the Claimant’s dismissal is unlawful, it is his claim that his employment with the 1st defendant is still subsisting and therefore entitled to be reinstated. It is settled that in a statutory employment where the process of disengagement is not strictly adhered to, the employee is entitled to be reinstated. Reinstatement includes placing a person whose employment has be determined albeit unlawfully back in the same position as he occupied before the employer determined his employment. See the cases of P.T.I &Ors v. Nelsiomone [1995] 6 NWLR (Pt. 402), 414 at 488, National Electric Power Authority v. Isievore [1997] 7 NWLR (Pt. 511) 135, at 147. It is in its ordinary and primary meaning to replace/reinstate the person to the exact position in which he was before his removal, see also Busari v. Edo State Civil Service Commission & Anor [2014] 42 NLLR (Pt 129) 1 CA, P, 21-22, pars G-A, Judicial Service Commission Cross Rivers State &v Anor v. Young [2013] LPELR-20592 SC. It is therefore consequent upon the above stated supra that I find that the Claimant is entitled to be reinstated back to his position before his unlawful dismissal from the 1st defendant without any loss of seniority, rank or entitlement whatsoever.  I so hold.

 

It is claimant contention also that he is entitled to his entire emolument from November 2016 when he was suspended from office through February 2017 when his appointment was purportedly terminated to the date of his reinstatement. It is clear from the documents placed before the Court that the claimant was by exhibit F5 suspended on the 8th of November, 2016 by the 1st defendant. By the authority of Longe v. First Bank Nig. Plc [2010] 6 NWLR (Pt 1189) 1 SC, suspension of an employee is not an unusual procedure taken in order to facilitate investigation, as the defendants has unfettered right to so do. Suspension gives the employer ample time to accurately investigate into any allegation levied against an employee. The law is settled that it is the prerogative of an employer to discipline its employee, however, recourse has to be made to the contract of employment, See the cases of Mobil Producing Nig. Unlt & Anor v. Udo [2008] LPELR- 8440 CA, Mrs Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board &bAnor [2013] 35 NLLR (Pt. 103) 40;University of Calabar v. Esiaga [1997] 4 NWLR (Pt 502)p. 739-740, pars H-A,  Yaros v. Nigerian Stock Exchange [2014] 46 NLLR (Pt 147) 45 NIC P. 151, pars E-F. An indepth examination of Exhibit F8, Chapter XII 5(B) (a) of the defendant’s regulation empowers the Vice Chancellor pending investigation to suspend any erring staff; I hereby capture the provision hereunder thus:

 

“B. TERMINATION, DISMISSAL AND RETIREMENT

Any officer in the service of the University may be terminated, dismissed and or retired by the Council of the University on grounds stated under section 3 and 4 of this Chapter only accordance with the following rules:

 

  1. The Registrar shall notify the officer in writing of the grounds on which it is proposed to terminate, dismiss and/or retire such officer, and he shall be called upon to state in writing before a date to be specified and grounds upon which he relies to exculpate himself.
  2. Notwithstanding the powers of Council of the University, the Vice Chancellor pending investigation of grounds in B(1) above shall:
  3. Suspension

Suspend any staff upon report of any serious misconduct prejudicial to the University. Such suspended staff shall forthwith cease to exercise the powers and functions of his office. Suspension shall not exceed 12months in the first instance, and it could be extended. A staff on suspension shall be entitled only to his basic salary. (underline mine for emphasis)

 

The Claimant in this case was suspended whilst undergoing investigation for his alleged misconduct by the 1st defendant which they are in law allowed to do, but a staff of the 1st defendant on suspension is entitled to be paid his basic salary as captured supra. There is however, no shred of evidence before the Court that the claimant was paid his basic salary whilst on suspension and the defendants were silent on the suspension of the claimant, the defendants also failed to challenge the claimant’s pleading in that regard as such they are deemed to have admitted that the claimant was not paid any salary the period he was on suspension that is from November 2016 to when his employment was terminated in February 2017. It is thus obvious that they are in breach of the provisions of Chapter XII 5(B) (a) of the Regulation (Exhibit F8). I consequently find that the Claimant is entitled to his basic salaries from the period of suspension in November 2016 till when he was unlawfully dismissed February 2017. I so hold.

 

With regards to the claimant’s entitlement from February, 2017 when he was unlawfully dismissed, I have held the dismissal of the claimant to be unlawful and equally granted in favour of the claimant, his claims for reinstatement. It then automatically connotes that he is likewise entitled to his claims for payment of his emoluments. It is in this wise that I find that claimant is entitled to his emoluments from February, 2017 when he was unlawfully dismissed till his date of reinstatement. I so hold.

 

In conclusion, it is evident that the Claimant’s claim succeeds and for the avoidance of doubt I declare and order as follows:

  1. That the dismissal of the claimant by the defendants by a letter dated 22nd February, 2017 is unlawful and hereby declared null and void.
  2. That the said letter of dismissal dated 22nd February, 2017 is hereby set aside.
  3. That the employment of the Claimant with the 1st defendant is still subsisting.
  4. That the 1st defendant is ordered forthwith to reinstate the claimant back to his erstwhile position without any loss of seniority, rank or entitlement.
  5. That the claimant is entitled to be paid his basic salaries from the period of suspension that is from 8th November, 2016 till 22nd February 2017 when he was unlawfully dismissed from the services of the 1st defendant.
  6. That the claimant is to be paid all his emoluments from 22nd February 2017 till he is reinstated.
  7. That this Judgment should be complied with within 30 days, failing which the emoluments including basic salary to be paid to the claimant is to attract the interest of 10% per annum.

 

No order as to cost.

 

Judgment is accordingly entered

 

 

                                  Hon. Justice Oyebiola Oyejoju Oyewumi

                                                  Presiding Judge

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