IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 4th OCTOBER, 2018 SUIT NO. NICN/BEN/16/2016
BETWEEN
MRS FLORENCE USIOMWANTA OKOSUN…………………… CLAIMANT
AND
1. POST PRIMARY EDUCATION BOARD,
EDO STATE
2. COMMISSIONER FOR EDUCATION, EDO STATE
3. THE ACCOUNTANT GENERAL, EDO STATE
4. THE AUDITOR-GENERAL, EDO STATE
5. THE MANAGING DIRECTOR, INFORMATION ………..DEFENDANTS
COMMUNICATION TECHNOLOGY AGENCY
6. THE ATTORNEY GENERAL, & COMMISSIONER
FOR JUSTICE, EDO STATE
REPRESENTATION
S.E. Ezenwa with him are E.C. Abeduego and I. Omoniyi for the claimant
J.O. Ugbodaga(Mrs) Chief State Counsel Edo State Ministry of Justice with her is I.O. Kadiri Senior State Counsel Edo State Ministry of Justice with him are for the defendants
JUDGMENT
The claimant’s case is that she was an employee of the 1st defendant till her appointment was dismissed through a letter dated 15th day of April, 2016 by the defendants. According to her, she was employed in 1986, which was subsequently confirmed. That she had series of promotion and that her last promotion to salary grade 15 was through a letter dated 14th of December, 2010 and that was when her appointment was purportedly dismissed, she was on salary Grade level 15 step 9. She continued that while she was carrying out her duties as an Economics teacher on 14th of March, 2014 in Idia College Senior, an accident occurred as a result of the nails on one of the damaged desks in the class which led to her fall and hitting her head on the edge of the high platform, that she was taken to the University of Benin Teaching Hospital (UBTH) by her husband who was called by the Principal of the school, Mrs. Esobe Ogbebor. But owing to the low level of attention and severity of her condition and as a result of the Medical Health Workers strike in UBTH at that time, her family decided to take her to the United States of America that night for proper medical attention in view of the fact that she has a Permanent Resident (Green Card). That her husband after she was flown abroad, wrote a letter dated 17th of March, 2014 to the Principal of her school informing her of the recent development of her (claimant) health. It is the claimant’s further statement that at Eastern Maine Medical Center, USA, a CT scan on her brain was carried out on 16th March, 2014, which indicated that she has traumatic brain injury with visible hematoma and that apart from the head injury; she also sustained injury in her rib, following which her husband wrote a sick report letter dated 16th of December, 2014 to the Post Primary Education Board through its Permanent Secretary informing the Board of her health and final preparation to discharge her upon conditions stated by the M.D. Furthermore, the claimant stated that when she called her Principal in October, 2014 on phone, she was informed by the principal that someone wrote a petition against her to the Post Primary Education Board, that she immediately informed the principal about her last examination scheduled to hold on 13th of January, 2015 which was to certify her medically fit and that thereafter she will return back to Nigeria and resume work. That when she was discharged and thereafter resumed school on the 26th of January, 2015, the principal handed over a copy of query dated 5th June, 2014 by the Board to her and that she wrote an answer dated 26th of January, 2015 through her Principal to the Permanent Secretary of the Board. That the defendants withheld her salaries in May, June, November, December and leave Transport Grantee in 2014. It is the averment of the claimant that she was handed a letter of dismissal from service dated 15th April, 2016, which was to take retrospective effect from the 17th of March, 2014 (three days after the accident that occurred in the classroom). She stated that before her letter of dismissal, she was never called upon by any panel, the defendants or any Government Agency to make her defence, that her employment is governed by her letter of appointment, Bendel State Post Primary Education Edict 1988, Edo State Education Law 1980 and the Unified Teaching Service Staff Regulations, 1973 and Edo State Civil Service Rules, 2006 and that by the Edo State Education law 1980 and Unified Teaching Service Staff Regulations, 1973, that the power to dismiss or exercise ultimate disciplinary control over a registered teacher in public institutions with the State is vested in the Teaching Service Commission. It is her further statement that the defendants did not comply with the procedures laid down by the above laws, consequent upon which she took out a General Form of Complaint in this Court on 8th July, 2016, claiming the following:
1. A Declaration that the procedures followed by the defendants in dismissing the appointment of the claimant with the 1st defendant is inconsistent with the procedures laid down in the Bendel State Post Primary Education Edict 1988, applicable to Edo State. The Edo State Education Law 1980 and the Unified Teaching Service (Staff) Regulations, 1973 and the Edo State Civil Services Rules.
2. A Declaration that the dismissal of the claimant’s appointment with the 1st defendant vide a letter dated 15th April, 2016, with reference No. TP/013,548/104 is inconsistent with the provisions of the Bendel State Post Primary Education Edict 1988, applicable to Edo State, the Edict establishing the 1st defendant under section 4 of the edict and governing the service of the employees of the 1st defendant, the Edo State Education Law 1980 and the Unified Teaching Service (Staff) Regulation, 1973 and other labour laws in respect of termination of appointment with statutory flavour and therefore illegal, unlawful and null and void.
3. A Declaration that the employment of the claimant with the 1st defendant, Post Primary Education Board, Edo State is still subsisting.
4. A Declaration that the claimant is entitled to all her emoluments, entitlement and salaries for the months of May, June, November and December, 2014 and from the month of January, 2015 till the date of her reinstatement.
5. An Order of this Honourable Court compelling the defendants to reinstate the claimant to her employment with the 1st defendant without any loss of seniority, rank or entitlement whatsoever.
6. An Order of this Honourable Court compelling the defendants to pay to the claimant all her salaries, entitlement and emolument for the months of May, June, November and December, 2014 and from the month of January, 2015 till the date of her reinstatement.
7. The sum of N4,000,000.00 (Four Million Naira) as general damages.
And such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The defendants in response, jointly filed their statement of defence on the 23rd February, 2017. They jointly confirmed that the claimant was appointed as a classroom teacher on 28th November, 1986 on salary grade level 7 step 1 by the Post Primary Education Board, Edo State, that since her employment, she was burdened with frequent excuses to travel abroad and lacks respect for constituted authority as she does not take no for an answer, that her posting from one school to another had always been as a result of her perpetual absenteeism and insubordination to the constituted authority. They averred further that the claimant perpetually absents herself from work for months without permission to travel abroad. They averred that the claimant travelled abroad in the morning of the 15th day of March, 2014 and spent ten months without permission. They continued that the staff of University of Benin Teaching Hospital (UBTH) were on strike on the 14th March, 2014, where the claimant claimed she was treated, that the outpatient card was not registered by the UBTH authority and also that the claimant cannot produce any receipt of payment that was made for the issuing and registration of the card and moreso that the C.T. brain scan and MRI equipment are available in UBTH and other teaching hospital in Nigeria. It is further stated that the letter from the claimant’s husband to the principal of the Idia College Senior Secondary School dated 17/3/14 falls short of the required procedure in service rules on how medical leave is obtained. The defendants went on to aver that due to the claimant’s absence from work, the 1st defendant gave the claimant’s absenteeism query dated 5th of June, 2014 which was not replied to until the 16th day of December, 2014 when her husband brought a letter titled sick report and also that she never responded to the query until her salary was stopped by the 1st defendant on the account of 10 months absenteeism from work. It is further stated that they followed the laid down procedures of the Bendel State Post Education Edict, 1988, Edo State Education Laws, 1973, Unified Teaching Service Staff Regulations 1973 and Edo State Civil Service Rule 2006. They pleaded that according to the Rules, any officer who absents him/herself from duty or from Nigeria without leave, renders him/herself liable to be dismissed from service for serious misconduct against the civil service rule. It is final their contention that this suit is frivolous, incompetent, vexatious, that the claimant is not entitled to the reliefs sought and that this suit be dismissed as it lacks merit.
During trial, the Claimant testified for herself alongside one Dr. Victor Abhiele Okosunas her husband as CW1 and CW2. They adopted their sworn depositions on oath as their evidence in this case and tendered some documents which were admitted in evidence and marked ExhibitsVA-VA1, F – F18. The Defendants also testified through Mrs. Esohe Ogbebor, the Principal of Idia College as DW1, Iyekepolor Onorovbiye as DW2, Mokayi Mary as DW3, and Festus Okoruwa as DW4.They adopted their sworn deposition on oath as their evidence in the case and tendered some documents which were admitted by the Court as Exhibits EO, FO1-FO3.
At the close of trial, the defendants filed their final written address on the 3rd of May, 2018 wherein a sole issue was framed for determination, viz:
Whether the dismissal of the claimant from the defendants’ public service employment on account of protracted absence from duty is in accordance with the rules of her engagement into the public service
In addressing the sole issue, learned counsel argued that the procedure for dismissal of staff who is absent from duty for a long period of time like 10 months, as the claimant did in the circumstances of this suit without prior permission to so do, or without having to procure referral letter to leave Nigeria for alleged treatment differs from the normal procedures contained in Paragraphs 5 & 6 of the Second Schedule to the Bendel State Post Primary Education Law, 1988 applicable to Edo State Nigeria. He submitted that, the gross-misconduct of protracted absence from duty post and insubordination found by the defendants to have been committed by the claimant is not part of the professional misconducts wherein the law stipulates that the defendants ought to set up an Investigative Committee to investigate the claimant and make findings before exercising any disciplinary measure against the claimant. He cited the2nd Schedule Paragraph 5 of the Bendel State Post Primary Education Law, 1988. However, it was submitted that vide Section 39(a), Part 4, Unified Teaching Service (Staff) Regulations, 1973 and Rule 030413 of the Edo State of Civil Service Rules, (Revised) 1st January, 2006, the sanction for the claimant’s gross-misconduct of absenteeism and insubordination as found against her is summary dismissal.
The defendants went on to submit that she was given the required query and the opportunity to explain herself in the discharge of the onus placed by the rules of Public/Civil Service. Counsel cited the cases of Udegbunanam v. FCDA [2003] 10 NWLR (Pt. 820) 487, Parag G; Obo v. Commissioner for Education Bendel State [2001]2NWLR,(Pt.693)625; Lagos University College of Medicine v.Adegbife[1973]1ALRCOMM:247,andIderima v. Rivers State Civil Service Commission [2005] 16 NWLR (Part 951) 378. He continued that she was issued a query on 5/6/2014 which she answered on the 26/1/2015, Exhibits FO1 and F7 to the dissatisfaction of the defendants. It is posited that the claimant failed to follow due process to obtain proper permission to travel out of Nigeria for medical treatment as stated in the Civil service Rules 2006 and that and the only punishment by the rules of service is dismissal or in the least termination of service. He relied on the case of Obo vs. Commissioner for Education, Bendel State (supra); LCRI vs. Mohammed [2005] 11 NWLR (Pt. 935) 1 at Paras C – E. Counsel submitted that the manner of claimant’s travel is also described as an afront and insubordination to constituted orders and law of Edo State and the defendants, which is with consequent sanction of dismissal as the cases of Sule v. Nigerian Cotton Board [1985] 2 NWLR (Part 5) 17 at 24; UNICAL v. Essien[1996] 10 NWLR (Pt. 477) 225 and Udegbunam v. FCDA (Supra) were relied upon.
It is the submission of the defendants that the lingering stance of the defence against Exhibit F6 is that same was tendered by the claimant; a witness; who cannot or is not in a position to answer questions on it, due to the fact that Exhibit F6 is expert evidence and the claimant through whom it was tendered is not a correlated medical practitioner expert and the law enjoins this Court to expunge this type of Exhibit, because the claimant witness CW2, through whom this Exhibit was tendered and admitted with objection is not in the requisite position to answer questions on the said Exhibit in cross-examination and a Court of law is entitled not to place probative value on evidence which does not pass the test of cross-examination. The cases of Buhari v. INEC [2006] 19 NWLR (Part 1120) 246 at 415, Paragraphs A – B and Haruna v. Kogi State House of Assembly [2010] 7 NWLR (Part 1194) 604 at 636 – 637 paras G – A were commended to the Court. Counsel submitted that this default is a fundamental vice not only against the claimant’s Exhibits F6 & F7, but against her claim in this suit and he urged the Court to so find. He cited in support the cases of Elukpo &Sons Ltd v. Federal Housing Authority [1991] 3 NWLR (Pt. 179) 322 at 333andBuhari v. INEC (Supra).
Counsel continued to submit that the claimant’s claims is devoid of documents evidencing that she went for treatment abroad or that she was in coma for the substantial period of that treatment and thus he urged the Court to uphold the dismissal of the claimant and also dismiss this suit in its entirely.
The claimant filed her final written address on the 25th May, 2018 wherein she submitted for consideration five issues, which are:
1. Whether from the circumstances of this case the defendants comply with the procedures specified in the Bendel State Post Primary Education Edict, 1988, Edo State Education Law 1973 and the Unified Teaching Service Staff Regulations 1973 and the Civil Service Rules in the dismissal of the claimant’s appointment with the 1st defendant.
2. Whether from the circumstances of this case, the defendants gave the claimant fair hearing before her appointment with the 1st defendant was dismissed by the defendants.
3. Whether from the circumstances of this case, the defendants can be said to have investigated, 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 from the circumstances of this case it is unlawful for the defendants to dismiss the claimant’s appointment with the 1st defendant and give the dismissal retrospective effect.
5. Whether the claimant has proved her case by preponderance of evidence or by balance of convenience to entitle her the reliefs sought in this case.
On issue one, it is counsel’s argument that claimant’s appointment with the defendants is a statutory flavoured employment which cannot be terminated like a mere servant/master relationship. He submitted that the defendants failed to show that they complied with the provisions of the laws governing her appointment with the 1st defendant as it is evidence before this Court that the Teachers Disciplinary Council did not investigate the allegation against her as provided in the Bendel State Post Primary Education Edict, 1988 neither did anybody including the 1st defendant investigate the allegation against her. He cited the case of Federal Civil Service Commission v. J.O. Laoye (S.C. 202/87) 10989 NGSC 35 (21 April, 1989) and urged the Court to resolve this issue in her favour and against the defendants.
In addressing issue two, counsel admitted that claimant was issued query which answered by the claimant but the defendants however failed to follow the Disciplinary procedures set out by laws governing her appointment with them by referring the matter to the Teachers Disciplinary Council and also calling witnesses to prove their case and that this failure amounts to denial of fair hearing. She relied on the cases of F.C.S.C v. Laoye (supra), Christian Iyafekhe v. University of Benin &Ors: NICN/BEN/27/20166 delivered on the 6th of October, 2017 unreported; Kanda v. Government of the Federation of Malaya (1962) AC 322 @ 337 he also submitted that the defendants’ action fall short of the requirements laid down by the Apex Court particularly on the issue of fair hearing. The following cases were also referred to: Oloruntoba-Oju v. Abdul-Raheem [2009] 13 NWLR (Pt 1157) p.83 Ratio 23; U.N.T.H.M.B v. Nnoli (1994) 8 NWLR (Pt. 363) p. 376; F.M.C, Ido-Ekiti v. Alabi [2012] 2 NWLR (Pt. 1285) P. 411 Ratio 6 and Mrs. Elizabeth Omoigberale v. Edo State Post Primary Education Board (unreported) delivered on 12th day of April, 2018. Claimant urged the Court to hold that she was not given fair hearing as the only document tendered in this case to show the disciplinary procedure the defendants followed is Exhibit ‘F02’ he also urged the court to determine this issue in her favour.
On issue three, counsel submitted that there is no evidence brought by the 1st defendant before this Court upon which it can be said that the allegation of misconduct paraded against the claimant was investigated and proved. He commended the cases of Igwilo v. Central Bank of Nigeria [2000] 9 NWLR (Pt. 672) p. 302 Ratio 2; S.D.P.C (Nig) Ltd v. Olarewaju [2002] 16 NWLR (Pt. 792) page 38 Ratio 5; Chiagorom v. Diamond Bank [2014] 44 N.L.L.R (Pt. 140) pg. 401 Ratio 17. Counsel submitted that the allegations against her upon which her appointment with the defendants was dismissed were not established both before the 1st defendant and in this court and therefore urged the Court to resolve this issue against the defendants and in her favour.
On issue four, counsel argued relying on the case of Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited [2015] 62 NLLR (Pt. 216) 40 that it is unlawful for an employer to terminate the appointment of its employee and give same a retrospective effect. Referring to claimant’s pleadings in her statement of facts and her witness statement on oath, learned counsel submitted that the dismissal of claimant’s appointment by the defendants is against all known rules, procedures, Regulations and Laws governing termination of appointment and was meant to inflict more hardship on her. In the circumstances, he urged the Court to hold that the dismissal of claimant by the defendants is unlawful and resolve this issue in her favour.
Addressing issue five, counsel adopting all his argument in the previous issues submitted that her dismissal by the defendants was unlawful and submitted that she is entitled to all the reliefs sought in this case. She placed reliance on the cases of Olufeagba v. Abdul-Raheem supra, Ratio 18; P.H.C.N v. Offoelo [2013] 4 NWLR (Pt. 1344) p. 380 Ratio 9 and F.M.C, Ido-Ekiti v. Alabi (supra) Ratio 8. Based on this, he urged the Court to grant her all the reliefs sought.
On the 26th June, 2018, the defendants in response to the written submission of claimant filed a reply on point of law addressing the issues raised by the claimants thus; on claimant’s issue one defendant argued that her argument is misconceived as the misconduct which require them to make recourse to the procedure in Paragraph 5 (5(1)-(5)(l)) as contained in Paragraph 6 of the 2nd Schedule of the law; Bendel State Post Primary Education Law, 1988, are ably placed and reproduced by them before the Court and that the case of Elizabeth Omoigberiale vs. Edo State Post Primary Education Board (unreported Judgment of this Honourable Court delivered on 12/4/2018) cited by the claimant is in contradistinction with this suit as the facts do not contain the fact of allegation of absenteeism against the suing parties and also that the claimant has failed to show the defendants why she should not be punished as prescribed by the governing law of the contract of employment that existed between the parties vide See: Section 39(a) Part 4, Unified Teaching service (Staff) Regulations, 1973and(Rule 030413 of the Edo State of Nigeria Civil Service Rules, (Revised) 1st January, 2006). He posited that contrary to the claimant’s argument on Issue 1, the defendants submits that they complied duly with the procedure of the four cardinal laws governing the contract of employment in this suit and therefore, he urged the Court to resolve this issue against the claimant.
On claimant’s issue two, counsel contended that claimant misguided the issue via the argument she canvassed therein as the unreported case of Mrs. Elizabeth Omoigberiale v. Edo State Post Primary Education Board, which she placed a heavy reliance on is in contradistinction with this case. To the defendant while the law provides for the misconduct alleged against the claimant in Mrs. Elizabeth Omogberiale’s case, However, in this case, the Bendel State Post Primary Education Law, 1988 does not contain any provision or procedure for redressing absenteeism as alleged against the Claimant, rather, it is another governing law of Section 39(a) Part 4, Unified Teaching service (Staff) Regulations, 1973 with the Edo State Civil Service Rules that does have the requisite provisions of redress and the procedure is to the effect that the defendants should only issue the claimant a query letter in effect to her protracted absence from work without leave and this is what had been done in Exhibit FO1. That the claimant on being issued this Exhibit FO1 owes them a duty or burden of proof that her absence was lawful but this she failed to do, and that the defendants therefore had no option other than to treat her as provided in the said law which have the provision for redress. The defendants therefore urged this Court to resolve this Issue 2 against the claimant and in their favour.
In reacting to issue three, counsel argued that it is the claimant that has the burden of proving to the Court that her absence from duty post is lawful and that Exhibit F7 which the claimant submitted to the defendants as answer to the query and in a bid to prove that her absence was lawful, failed woefully in proving this lawfulness. Counsel then submitted that this Issue as formulated by the claimant exist against her interest in this suit and urged the Court to resolve same in favour of the defendants as it is trite law that the admitted fact of the claimant’s absence from duty post for about 10 months need no further proof and such fact not being specifically denied by the claimant should be regarded as established. He cited the case of Lewis & Peat (N.R.I) Ltd vs. Akhimien [1976] 7 SC 157 and urged the Court to so hold.
On issue 4 counsel submitted that the law forbids the defendants from paying the claimant any form of wage on a day the claimant fails to work. They further contended that this suit is distinguished a great deal from the case of Adekoge Sheu v. Lagos Nurtw (First BRT) Cooperative Society Ltd (Supra), and that the termination of the claimant in this suit only captures the precise period of time she commenced to absent herself from her duty post; 17/3/2014 and that there is nothing retrospective about the manner the she was relieved of her appointment. He urged the Court to so hold, and resolve this issue in favour of the defendants.
On issue five, counsel argued that that the claimant failed woefully in proving her case or claim in this suit as required by law. He also argued that the claimant is yet to address or challenge the un-contradicted contention from them that her Medical Report of Exhibit F6 which was tendered before this Court without the requisite medical personnel who could be cross-examined in regard is void of legal weight and that it is noteworthy that the claimant’s Final Written Address is silent on this contention. He went on to submit that without Exhibit F6 able established before the Court, the claimant cannot claim to have proved her case on preponderance of evidence in this suit because the defect in the tendering of the said Exhibit in this suit has created a huge gap which could only be resolved against the claimant and in favour of the defendants. He submitted that the law enjoins this Court to deem that the claimant has abandoned her argument in regard to the contention and treat the piece of the contention as being admitted by her and to resolve same as being contended by the defendants that Exhibit F6 lacks legal significance. They referred to the case of CAPPA &D’alberto Ltd v. AkintiloTilo[2003] 9 NWLR (Pt. 824) 49 Ratio 6 at Page 71.
I have gone through the processes filed by the parties in this suit as well as the written arguments of both counsel and authorities cited in support of respective cases before this Court, it is in my calm view that the issues that will best determine this suit are;
1. Whether or not the claimant’s dismissal is unlawful.
2. Whether or not she is entitled to her reliefs.
Before I delve into the main crux of the issues framed, I will like to deal with an objection raised by the defendants in respect of the admissibility of exhibit F6, i.e. the claimant’s medical report. The Court on the 11th of April, 2018, ordered parties to address it in their written submissions as to weight to attach to the medical report, Exhibit F6. The defendants in their address posited that Exhibit F6 which was tendered by the claimant CW2 is to be discountenanced as same ought to be tendered by an expert, it being an expert evidence and according to them the said Exhibit must be tendered by a medical practitioner who is also in a position to answer question which may arise therefrom. The defendants then urged the Court to expunge exhibits F6 from its record. Now the exhibit in contention is a Medical report from Eastern Maine Medical Center dated 16th of March, 2014 and it contains report on the health condition of the claimant. The general rule as to who can tender documentary evidence is that documentary evidence should be tendered through its maker. This is because the maker of such documents can validly answer the questions put forward with regards to the documents so his attendance may be necessary to facilitate cross-examination. See Section 91 of the Evidence Act 2011. See also the cases of Statoil Nig. Ltd v. Inducon Nig. Ltd [2014] 9 NWLR (Pt 1411) (P. 94, Paras, A-B). It is not at all times that documentary evidence must be tendered by the maker, as the person to whom it is made can also produce it in Court. If it can be shown to the Court by the person seeking to tender same that the maker of the document is dead or unfit by reason of his body or mental condition; that the presence of the maker of the document may also be excused if he is overseas or if it is not reasonably practicable to call him to tender the document in view of attendant expense. Obaseki, JSC (of blessed memory) in the case of Torti v Ukpabi [1984] 1 SCNLR 214 at 227-228 held thus “…. Where a document is admissible, the issue of proper custody is irrelevant to the issue of admissibility. I would state the principle in reverse, i.e. if a document is inadmissible, the fact of production from proper custody will not make it admissible. A document must be relevant to be admissible. Its production from proper custody goes to weight to be attached to the piece of evidence. If it is from proper custody, it is presumed to be genuine if evidence of execution and identity is not available. If this evidence of execution and identity is available, the evidence of proper custody adds nothing to the weight to be attached to the piece of evidence and if absent, cannot adversely affect the admissibility of the document. There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained”. See also the cases of Bello v. Ringim (1991) 7 NWLR (Pt. 206) 668 decided in the Court in appeal No. CA/K/25/90; Alaribe v Okwuonu [2016] 1 NWLR (Pt. 1492) 41 and Omega Bank Plc v. O.B.C Ltd [2005] 8 NWLR (Pt. 928) 547. It is clear and contrary to the argument of the defendants that Exhibit F6 can be admissible irrespective of whether or not the maker was called as a witness as the documents in question seeks to substantiate her pleadings and to convince the Court that she was indeed sick during the period of the alleged abscondment from work as leveled against her by the defendants. The question here is not to test the nature of her sickness, it’s not to establish negligence but to support her pleading that she was hospitalized in a hospital in the United States at the material time. The fact that claimant had an accident at work and was rushed to the hospital is not in contention. It is in the light of this that I find that exhibit F6 is relevant to the fact in issue and thus forms part of the record of this Court.
To the main gist of this case, it is claimant’s contention that the procedures followed by the defendants in dismissing her from the 1st defendant’s appointment is inconsistent with the procedures laid down in the Bendel State Post Primary Education Edict 1988, applicable to Edo State. The Edo State Education Law 1980 and the Unified Teaching Service (Staff) Regulations, 1973 and the Edo State Civil Services Rules and to that extent, the letter of dismissal dated 15th April, 2016, with reference No. TP/013,548/104 is inconsistent, illegal, unlawful and should be declared null and void. The defendants on the other hand argued that they followed the laid down procedures in the laws regulating their relationship with the claimant. They pleaded that according to the Rules, any officer who absents him/herself from duty or from Nigeria without leave, risks dismissal from service.
It is the law of common that the burden is on him who alleges unlawful termination/dismissal to discharge by placing before the Court and in support of his case, the document regulating or evincing his employment relationship; the terms and conditions of his employment; who can appoint and remove him; the circumstances under which his appointment can be terminated and that his appointment can only be terminated by a person or authority other than the defendant. In addition it is also important to plead all relevant documents and facts upon which to hinge his claim and to sustain his protest of unlawful dismissal. Having done this, the claimant is next required to call credible evidence in proof of the pleaded facts. In the case of Amodu v Amode [1990] 5NWLR (Pt 150) 356 at 370 the Apex Court per Agbaje JSC had this to say;
Since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service, between them it is for the plaintiff to plead and prove the conditions of the contract of service in question. It is also for the plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him.
See also the cases of Mr. Benedict Chidobem Ajuzi v. First Bank of Nigeria Plc [2016] LPELR 40459 CA; Dr. J.I Okwusidi v. Ladoke Akintola University [2011] LPELR 4057 CA; Joseph Enugunum & ors v. Chevron Nigeria Ltd [2014] LPELR 24088 CA. In prove of her case, the claimant tendered Exhibit F which is her offer of provisional appointment and confirmation of appointment letters. It is noteworthy that parties are in ad idem that the claimant’s employment is protected by statute and the law is long settled that an employment is said to be statutory where the conditions for appointment, remuneration and procedure for the determination of the employment are all embedded in a statute/law/regulation made undher it. See the cases of Uba v Council Federal Polytechnic Oko [2012] 63 NLLR (Pt. 221) 72; Eze v N.A.M.A [2016] LPELR 41453; Oforishe v. Nigeria Gas Ltd [2017] LPELR 42766 SC. Parties in this suit set out the following as the law that binds the contract of employment between them as follows; Bendel State Post Primary Education Board Edict,1988; The Edo State Education Law 1980 and the Unified Teaching Service (Staff) Regulations, 1973 and the Edo State Civil Services Rules, 2006. The point of divergence here is, to the claimant, due process was not adhered in dismissing her from the employment of the 1st defendant and to the defendants they followed strictly the provisions of the terms of the claimant’s employment before dismissing her. It is trite that for an effective and just determination of a contract of employment protected by statute, the provision of the statute must be satisfied as a breach thereof renders the act of termination/dismissal ultra vires and hence void. This is because the principle of natural justice is paramount in deciding a case of this nomenclature and the principle of audi alterem partem, which is constitutionally guaranteed is to ensure that parties are given the requisite opportunity to be heard and present their cases in defence of the alleged misconduct before dismissal. As reiterated earlier a breach of same touches on the foundation of the contract which will be declared null and void and of no effect by the Court. See the case of Chief Isaac Egbuchu v Continental Merchant Bank Plc & Ors [2016] LPELR 40053 SC; Federal Polytechnic Ede & Ors v. Alhaji Lukeman Ademola Oyebanji [2012] LPELR 19696 CA; Tsemwan & Ors v. Governor of Plateau State &Anor [2012] LPELR 7922 CA.
The kernel of this case is that the claimant in this suit was on the 15th of April, 2016 by Exhibit F12 dismissed from the service of 1st defendant, on the grounds that she was absent from work for a period of nine months without approval and which according to the defendants amounts to a misconduct, for which the appropriate sanction is dismissal. The position of the law which has gained notoriety is where an employee is being alleged of misconduct, the employer must inform him/her via a written notice or query as the case may be, stating the reasons for such allegation against him, he must be given an opportunity to defend himself, be invited to make representation or defence thereto at a disciplinary investigatory panel set up for that purpose; be offered an opportunity to cross examine his accusers if any or any witness who testified on behalf of the employer; be permitted to call witness to corroborate his defence and the documents to be used against him must be given to him before the date of the panel to enable him adequately prepare for his defence at the panel of disciplinary committee. See the cases of Kwara State v Ojulari [2007] 1 NWLR (Pt 1016) 551 CA; Benin Electricity Distribution Company Ltd v Esealuka [2013] LPELR 20159 CA. An indepth examination of all the documents before the Court, i.e. the Bendel State Post Primary Education Board Edict,1988; The Edo State Education Law 1980 and the Unified Teaching Service (Staff) Regulations, 1973 and the Edo State Civil Services Rules, 2006, Exhibits F15 provides for disciplinary procedure and it is pertinent to reiterate the position of the law, which is that where there are different statutes regulating an employment, it must be read holistically and not in part or in isolation so as not to render any provision or term superfluous, ambiguous or meaningless; it is in this regard that I will reproduce salient portions of all the laws regulating claimant’s employment for ease of reference hereunder viz-
First, the Bendel State Post Primary Education Board Edict, 1988 in its Second Schedule provides thus;
1. When an allegation of professional misconduct against a teacher is made, the appropriate Education office shall inquire into the Board accordingly.
2. if in the opinion of the Board the alleged misconduct is not proved or is not serious enough to warrant severe disciplinary action against the teacher, the Board may either exonerate the teacher or inflict on him such punishment as the Board may think fit
3. if the misconduct is such as may warrant severe disciplinary action against the teacher, the Board shall refer the matter to the Disciplinary Council.
4. During an inquiry by the disciplinary Council, the teacher against whom an allegation is made shall be given a fair hearing.
5. if in the opinion of the Council the alleged misconduct is serious to warrant proceedings with a view to his dismissal or the removal of his name from the register of teachers, the procedure shall be as follows;
a. the teacher shall be notified in writing of the grounds on which it is proposed to proceed against him and he shall be called upon to state in writing before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he intends to rely to exculpate himself;
b. after the teacher has furnished the statement, the disciplinary Council shall consider it and, if the Council is of the opinion that the statement exculpated the teacher no further proceedings shall be taken;
c. where the teacher does not furnish the statement within the time specified under sub-paragraph (a) of this sub-section or if the disciplinary council considers that the statement does not exculpate him, the Council shall direct that proceedings shall continue and shall inquire into the matter or appoint a committee to do so
d. if the Council decides to inquire into the matter, the teacher shall be informed that the question of his dismissal or removal of his name from the register will be considered by the Disciplinary Council on a specified day and time and that he will be required to appear before the disciplinary council to defend himself on that day and time;
e. if any witnesses are examined by the disciplinary council the teacher shall be given an opportunity to be present and to put questions to witnesses on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access to it;
f. the person making the allegation or the teacher may be represented by council.
g. the disciplinary council shall be entitled to be assisted in the conduct of inquiry by a law officer or legal practitioner assigned or appointed for the purpose by the Attorney General of the State;
h. if during the inquiry further grounds of dismissal or removal of name from the register are disclosed, the disciplinary council may decide that proceedings be taken against the officer upon those grounds and in accordance with the procedure prescribed in this schedule;
i. the disciplinary council having inquired into the allegation may decide that the teacher be dismissed or his name be removed from the register, or that he should suffer some lesser punishment, or that he be exonerated.
j. where the inquiry is conducted by a committee appointed by the council the provisions of sub-paragraph (d) and (f) of paragraph 5 of this schedule shall apply to the proceedings of the committee as if the word committee is substituted for the words “Disciplinary council”;
k. a committee appointed by the disciplinary council shall, after inquiry into the matter, make a report of its findings to the disciplinary council and the Disciplinary council shall consider such reportand if it is of the opinion that the report should be amplified in any respect or that further inquiry be made, it may refer the matter back to the committee for amplification or further inquiry; (Underline mine for emphasis)
l. upon considering the report of further report of the committee the disciplinary council may decide that the teacher be dismissed or that his name be removed from the register or that he should suffer some lesser punishment or that he be exonerated.
Section 39 of the Edo State Education Law 1980 and the Unified Teaching Service (Staff) Regulations, 1973, provides thus-
(1) A teacher may be dismissed by the commission if without reasonable cause, the onus of proof of which shall lie on him, he is absent from duty without leave or it on grounds of ill health he fails to produce a medical report to that effect.
(2) A teacher may be dismissed or otherwise disciplined in the manner appropriate to the circumstances if, after two written warnings, he is guilty of continued and frequent lateness to or absence from school.
(3) A teacher who without reasonable excuse is absent from duty shall receive no pay for the period of such absence and any action taken by the commission in such case shall be reported to the appropriate authority.
Section 4 of the Edo State Civil Services Rules, 2006 provides for disciplinary procedure for serious misconduct. Rules 030402 (e) list serious misconduct to include “Absence from duty without leave” and it provides as follows;
030307– Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with this Rule;
(i) The officer shall be notified in writing of the ground on which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) used against him and he should be asked to state in his defence that he has been given access to the documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he relies to exculpate himself.
(ii) The query or preliminary letter shall be in the format shown in Appendix 11.
(iii) If the officer submits his representations and the State Civil Service Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the commission may take such action against the officer as it deems appropriate.
(iv) If upon considering the representations of the officer the commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment it shall impose on the officer such punishment as it considers appropriate.
(v) Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed Chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The Head of the officer’s department shall not be a member of the board.
(vi) The officer shall be informed that, on a specific day, the question of his dismissal shall be brought before the board and he shall be require to appear before it to defend himself and shall be entitled to call witnesses. His failure to appear shall invalidate the proceedings of the Board.
(vii) Where witnesses are called by the Board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto.
(viii) If during the course of inquiry further grounds for dismissal are disclosed, and the State Civil Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken prescribed above in respect of the original grounds.
(ix) The Board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the Board for further inquiry or report. The Commission shall not itself hear witnesses.
(x) If upon considering the report of the Board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken.
(xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and entitled to the full amount of salary denied him if he was interdicted or suspended.
From the above stated laws, it is noteworthy that the common thread that runs through all is that where an offence of misconduct is alleged, the employee must first of all be notified of the allegations against him and when he fails to exculpate himself, the Board shall constitute an investigatory panel of inquiry to enable the employee make his/her representation in defence of the alleged misconduct, if a witness/es are called to testify, the employee shall be entitled to present and to put questions to each witnesses, no documentary evidence will be used against the employee unless he has previously been supplied with a copy thereof or given access thereto and upon dissatisfaction of the representation of the employee, the Board may make recommendation for dismissal to the Commission. All these process elucidated by the above statute and rules must be adhered to strictly to ensure that fair hearing is dispensed with in such proceeding as non-compliance thereof may render the process of dismissal/termination null and void. See the cases of Amos Akila & Ors v. Director General State Security Services & 3 Ors [2014] 2NWLR (Pt 1392) 443; Obianwuna v. NEPA [2016] LPELR 40935CA.
In the instant case, the claimant was on the 5th of June, 2014 issued a query by the 1st defendant on the grounds that she has been absent from school. She answered same on the 26th of January, 2015 when she returned back to Nigeria after her treatment abroad. It is apparent from the records before the Court that the claimant was not invited to make representations before the Board or commissions as provided for by the Laws governing the contract of employment of the claimant. The defendants in defence stated that the claimant was dismissed vide Section 39(a), Part 4, Unified Teaching Service (Staff) Regulations, 1973 and Rule 030413 of the Edo State of Nigeria Civil Service Rules, (Revised) 1st January, 2006 which states that; “Any officer who absents himself from duty or travels out from Nigeria without leave renders himself liable to be dismissed from the service and the onus shall rest on him, to show that the circumstances do not justify the imposition of the full penalty” which according to them does not state that an investigative panel of inquiry should be set up before the claimant is dismissed. The claimant CW2 under cross-examination stated that the severity and or urgency of the accident made it impossible for her to take permission to travel as she was unconscious and did not know what transpired and this was corroborated by CW1, her husband when he stated that he had to hire a bus to Lagos to fly the claimant out of the country. He however, stated that on the 17th of March, 2014 and the 16th of December, 2014 he wrote in his personal capacity as the husband of the claimant to the Principal of Idia College Mrs Ogbebor, who according to CW1 witnessed the whole incident and did infact call him when the accident occurred whilst the claimant was teaching in the class. He wrote to the 1st defendant also wherein he attached a letter from Eastern Maine Medical Center dated 26th of November, 2014 exhibit BA and BA1 intimating them that CW2 has been flown out of the country for proper treatment. CW1’s testimony was confirmed by DW1, Mrs Ogbebor, she confirmed that the accident occurred at the school and her attention was called by the Vice Principal of the school, she had to call prayer warriors in her school to pray for the claimant in view of the seriousness of the claimant’s state. She equally confirmed that she called CW1 on phone informing him of the claimant’s condition. DW1 again admitted that she received the letter, i.e. exhibit BA1 written by CW1 on behalf of the claimant informing her of the claimant’s medical trip abroad, she stated that she did not submit the letter to the Board because it was during examination period and thought claimant would resume, failing which she then wrote a letter to the Board after two months of receipt of CW1’s letter. Now can we say that claimant’s dismissal is lawful? The argument of the defendants that claimant was dismissed vide Section 39(a), Part 4, Unified Teaching Service (Staff) Regulations, 1973 and Rule 030413 of the Edo State of Nigeria Civil Service Rules, (Revised) 1st January, 2006 which does not require that an investigative panel should be set up before dismissal does not accord with the statutes regulating their relationship with the claimant. I say so because the procedure regulating the claimant’s employment was not wholly exhausted. There was no investigative panel of enquiry set up and other procedure as required by the law was breached by the 1st defendant before dismissing her. According to the claimant she came back in January, 2015 when she answered a query issued to her, if they found it unsatisfactory and wanted to follow the procedure before dismissing her, they could have constituted a Board to investigate her case but they chose to turn the other eye away from the law. Assuming but not conceding that the defendants action is in compliance with Section 39 of the Unified Teaching Service Regulation captured earlier in this judgment i.e. “a teacher may be dismissed by the commission if without reasonable cause, the onus of proof of which shall lie on him, he is absent from duty without leave or it is on grounds of ill health he fails to produce a medical report to that effect’. The claimant, according to CW1 wrote a letter to both the Principal of Idia College where the claimant was a teacher as well as the 1st defendant attached her medical report. I find it so callous of the 1st defendant under whose care the claimant was as an employee, sustained the injury according to the claimant as a result of a broken table whose nail caused her accident hitting her head on the hard surface. DW1 confirmed that the accident occurred whilst the claimant was teaching, she spoke to her but claimant could not respond which is a confirmation of her condition at the time. What more evidence does the claimant need to produce aside a medical report which she already submitted. Mrs Ogbebor cannot feign ignorance of what transpired and did not deny that she received the letter from CW1, hence she wrote the Board on the 8th of May, 2014. Claimant did not in any way breach the provision of Section 39 supra. The defendants did fail woefully to comply with the provisions of all the statutes regulating the claimant’s employment. They acted as if the claimant is an employee at will, where she could be sacked at any time without more.
It is also the contention of the claimant that her dismissal letter was given a retrospective effect. A keen perusal of the document before me evinces that the claimant’s dismissal letter exhibit F12 dated 15th of April, 2016 was deemed to be with effect from 17th of March, 2014 in other words claimant’s dismissal was backed dated to 2014, three days after she sustained the injury at the 1st defendant’s school, whilst on duty and the same date CW1 wrote a letter to both the Principal of Idia College, claimant’s direct boss and the 1st defendant. A germane question that comes to mind is can an employment with statutory flavour be determined with retrospective effect? The answer is found in the latin maxim Lex prospicit non respicit, meaning the law looks forward and not backwards and case of Cosmos C. Nnadi v National Ear Care Centre &Anor [2014] LPELR 22910 CA where the Court of Appeal held per Mbaba JCA, gave a judicial teeth to this maxim thus;
I do not think in an employment with statutory flavour, a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by 1st respondent in this case, in complete disregard of the procedures stipulated in the conditions of service governing the contract of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously guarded tenure and their position is not that of mere master and servant relationship, whereof a master can simply fire his servant for any reason or without any reason, provided he gives him the stipulated notice or salary in lieu of the notice. to remove a public servant in flagrant contravention of the rules governing his service, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destabilize the security of tenure of his public service, frustrate his hopes and aspirations and thereby act in a manner inimical to order good government and well-being of the society.
The action of the defendants goes to show that they were in a hurry to dismiss the claimant from their employment, thereby acted in fragrant disobedience to requirements of the statute and regulations governing the employment of the claimant. They acted as if they are in the banana republic, where there is no regard to laws. I find the action of the 1st defendant to be preposterous and in utter disregard to the laws protecting the employment of the claimant and the rule of natural justice. Consequent upon which I find that the procedure followed by the defendants in dismissing the claimant and the subsequent dismissal is unlawful and void. I therefore resolve issue one in favour of the claimant.
On issue two, it is claimant’s claims that she is entitled to be reinstated without any loss of seniority, rank or entitlement whatsoever and all her salaries, entitlement and emolument for the months of May, June, November and December, 2014 and from the month of January, 2015 till the date of her reinstatement be paid. I have held supra that claimant’s dismissal is unlawful and thus void. It is settled law that where an employment is statutory and the process required by the Statute for discipline and disengagement was not followed, the act of determination of employment by the employer will be void, the effect of which is that the affected officer was in law never disengaged from his employment, he will then be automatically reinstated. Reinstatement in labour law refers to putting back an unlawfully dismissed/terminated employee back to his former position together with all the rights and privileges attached thereto prior to his dismissal. See the cases of William Dixon Ltd v Patterson [1943] S.C. (J) 78; Baba v NCATC [1986] 5 NWLR (Pt. 42) 514 CA; Mr. Camilus Tsemwan & Ors v Governor of Plateau State & Anor Supra. It is in this regard that I find for the claimant that she is entitled to be reinstated back to her employment without any loss of seniority, rank or entitlement whatsoever and all her salaries, entitlement and emolument for the months of May, June, November and December, 2014 and from the month of January, 2015 till the date of her reinstatement should be paid to her. I so hold.
Finally, claimant’s claims the sum of N4, 000,000.00 (Four Million Naira) as general damages. General damages are the kind of damages which the law presumes to be the consequence of the act complained of. I have already given an order earlier in this judgment for the payment of claimant’s salaries, entitlement and emolument for the months of May, June, November and December, 2014 and from the month of January, 2015 till the date of her reinstatement in consequence of the unlawful dismissal by the defendants which is the same as damages. It will therefore amount to double compensation to the claimant if I resolve this claim in favour of the claimant. It is upon this basis that I find and hold that claimant’s claim for damages fails.
On the whole, it is evident that the claimant’s claims succeed and for the avoidance of doubt, I declare and Order as follows;
1. That the procedure adopted by the defendants in dismissing the claimant is inconsistent with her contract of employment.
2. That the dismissal of the claimant by the 1st defendant is unlawful, thus declared null and void.
3. That the letter of dismissal dated 15th of April, 2016 is hereby set aside.
4. That the 1st defendant is ordered forthwith to reinstate the claimant back to its employment without any loss of seniority or rank.
5. That the claimant is to be paid all her emoluments from the months of May, June, November and December, 2014 and from the month of January, 2015 till the date of her reinstatement.
6. That the entire sum awarded is to be paid within 30 days of this judgment failing which it is to attract 21% interest per annum.
Judgment is accordingly entered.
Hon. Justice Oyebiola Oyejoju Oyewumi
Presiding Judge
