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DR. FELIX BABATUNDE DADA -VS- YABA COLLEGE OF TECHNOLOGY,

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

 

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATE: 16TH SEPTEMBER, 2019                           

SUIT NO: NICN/AK/21/2017

 

BETWEEN

 

  1. FELIX BABATUNDE DADA                      CLAIMANT

                                               

AND

 

  1. YABA COLLEGE OF TECHNOLOGY, YABA

  1. THE COUNCIL, YABA COLLEGE OF

TECHNOLOGY, YABA

 

  1. THE RECTOR, YABA COLLEGE OF

TECHNOLOGY, YABA                                             DEFENDANTS

 

  1. THE REGISTRAR, YABA COLLEGE OF

TECHNOLOGY, YABA

  1. THE DEPUTY REGISTRAR (SSP), YABA

COLLEGE OF TECHNOLOGY, YABA

 

REPRESENTATION:

 

OMOTAN OGUNMODEDE FOR THE CLAIMANT.

 

AMOS ILARI FOR THE DEFENDANTS, HOLDING THE BRIEF OF OMOLOLA SATAR

JUDGMENT

 

The claimant in this suit commenced this action by originating summons filed on the 22nd June, 2017, along with other accompanying processes, same was converted to general form of complaint by order of court of 25th October, 2017, and the claimant subsequently filed his complaint and other processes on the 1st of November, 2017, claiming against the defendants as follows:

  1. AN ORDER setting aside the suspension of the salaries of the claimant from the 1st defendant’s employment.

  1. AN ORDER setting aside the suspension of the claimant.

  1. A DECLARATION that the claimant has validly retired from the defendant’s employment since 30 September, 2016.

  1. AN ORDER setting aside the letter of dismissal of the claimant by the defendants with Reference Number:  AD/R/S.841/Vol.2/295 dated April 12, 2017.

  1. AN ORDER directing the defendants to pay the claimant the sum of N408,463.64 per month being the withheld salary of the claimant from January, 2016 to 30th September, 2016 totalling N3,676,172.76k.

  1. An order directing the defendants to pay the claimant his pension from October, 2016 till date of judgment and thereafter till his death.

  1. An order directing the defendants to pay the claimant his severance package.

  1. An order directing the defendants to pay the claimant his gratuity.

  1. Interest on money at 21% per annum.

The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witness and documents to be relied upon, while the defendants filed their amended joint statement of defence and other accompanying processes

The case of the claimant is that he was appointed as a senior staff of the 1st defendant vide letter dated 5th October, 1993, and worked for the 1st defendant for a period over twenty years.  In April, 2009, the claimant was granted a long-term study leave with pay to study abroad at Kingston University, London and was later granted an extension from December 2012 till December 2013.  He averred that he was recalled in May 2014 and resumed work in June, 2014, despite the non-completion of his programme. Upon resumption, he was invited to the Senior Staff Investigation Committee of the 1st defendant for alleged violation of the College Study Leave Policy and appeared. He later wrote a letter of protest on the membership of the 5th defendant in the committee, on the premise that his right to fair hearing by the committee cannot be guaranteed with the 5th defendant as a member.

He stated that all the ordeal he passed through affected his health and he was constrained to retire from the service of the 1st defendant on the 6th of June, 2016 after giving the requisite notice.   He averred that he later demanded for his entitlements without any response from the defendants, but was issued with a letter of dismissal dated 12th April, 2017, thereafter.

The claimant finally averred that his dismissal was unlawful, ultra vires and in breach of his right to fair hearing, he therefore urged the court to grant the reliefs claimed.

The defendants on the 7th of June, 2018 filed their amended statement of defence witness statement on oath and list of documents to be relied upon at the trial.

In their joint defence the defendants denied paragraph 1 of the statement of fact and admitted some parts thereof. The defendants averred that the claimant’s employment is regulated by his Letter of Appointment and his entitlement to pension is within the purview of the pension management of the institution of which is to the awareness of the claimant.

The defendants stated the breakdown of the claimant’s study leave spanning five years and four months as follows:

  1. Study leave with pay (Jan. 1 2009 – Dec. 31, 2011)
  2. Study leave without pay (Jan. 1 2012  – Dec. 31, 2012) extension.
  3. Study leave without pay (Dec. 2012  – Dec. 2013) extension.

They stated that they had to recall the claimant back to his duty post as it was evident that the Doctorate Degree he was undergoing was not going to be completed any time soon. The defendants further averred that they received a report on the credibility of the academic reports of the claimant which led to an investigation in order to clarify the issue of violations discovered.

The defendants further stated that the Committee that investigated the claimant’s violation of the 1st defendant study leave policy were properly constituted as the expanded management committee, even though the members of the Governing council were already composed, but were as yet to be inaugurated at the time. Thus the power of the Governing Council was delegated to the Expanded Management Committee by virtue of the provisions of the Federal Polytechnic Act.

The Defendants alleged that the claimant refused to honour the defendants summons and query and his notice of retirement was a ploy by the claimant to avoid disciplinary action by the defendants due to his insubordination.

The defendants averred that the claimant was properly removed from office due to violation of the 1st defendant’s leave policy and that the claimant’s suit is malicious, provoking, frivolous, vexatious and same should be dismissed with substantial cost.

Trial commenced in this suit on the 15th February, 2018 with the claimant testifying for himself as CW1, he adopted his witness statement on oath, and further witness statement on oath.  He tendered several documents which were admitted by the court and marked as Exhibits F1- F37, he was cross-examined by the defence Counsel and afterwards closed his case.

The defendants on their part opened their defence on the same date by calling one W. A. Babatunde Wahab, a public servant in the employment of the 1st defendant as DW1, he adopted his witness statement on oath and tendered several documents which were admitted without objection and marked as Exhibits W1 – W8b, the witness was later cross examined, and the defence closed its case.  The case was adjourned for the adoption of final written addresses. Counsel for both parties adopted their addresses on the 15th of July, 2019.

Omolola O. Satar Esq. of counsel for the defendants in his final written address dated 21st March, 2019 and filed on the 22nd March, 2019, formulated three issues for determination to wit:

  1. Whether the claimant’s dismissal was unlawful and contrary to the Public Service Rule.
  2. Whether the claimant’s claim that he was not accorded fair hearing by the Defendants’ Committee is justifiable.
  3. Whether the claimant is entitled to be paid his salaries and other entitlements from the date of his suspension and be paid damages by the defendant for the dismissal of the claimant’s employment.

On issue one, learned counsel submitted that the reason for the dismissal of the Claimant was due to falsification of records which is a serious misconduct by virtue of Rules 030402 of the Federal Government Public Service Rules, and that this was done in accordance with the Public Service Rules, Federal Polytechnic Staff Manual and the rules of natural justice and is therefore not unlawful. In support of his position he cited EZE V SPRING BANK (2011) 48 NSCQR, P.128.

Learned Counsel posited that the Claimant was availed an opportunity to defend himself at the disciplinary committee and there was substantial compliance with the conditions of service. He therefore surmised that his dismissal is valid on the ground of serious misconduct, dishonesty and disregard of the disciplinary committee. He also cited Rule 030414 of the PSR in support of the action of the defendants.

The defence Counsel added that it is on record that the Claimant was issued with a query and he refused to respond to same but chose to write a letter threatening the 5th Defendant. This he submitted is contrary to the provisions of Rule 030301 of the Federal Public Service Rules, as it is termed a “Misconduct”.He therefore urged the court to resolve issue 1 in the defendants’ favour.

On issue two, defence Counsel submitted on the claimant’s contention that he was not accorded fair hearing by the committee, that all federal government employees are governed by certain rules and regulations known generally as rules of engagement. In the instant case, he cited Federal Polytechnic Staff Manual as well as the Public Service Rules 2008 as the relevant rules guiding the employment. He also cited the Supreme Court in INAKOJU V. ADELEKE (2007) 1S.C (PT 1), PG 1 @ 10, and submitted that the main objective of these rules are to protect the employees from any form of discrimination as well as to ensure that employees’ activities and actions are guided by laid down rules. These rules also set out the disciplinary process and the scope of disciplinary actions where required.

Learned Counsel argued that in accordance with the Regulations and Rules guiding the employment, the Claimant was summoned to answer to allegations on violation of the leave policy of the 1st Defendant and he failed, refused/neglected to appear and defend the allegations against him. On the 18th May 2016, he was issued with a query and he refused to respond to same. Later again on the 26th May 2016, the school sent a reminder to him and this he also ignored. The defence counsel therefore raised a question, whether the defendants’ efforts above does not amount to affording the claimant a fair hearing.

The defence counsel referred the court to Rule 030406 of the Public Service Rules on serious misconduct which can result in a dismissal, and cited The Court of Appeal in EIGBE V N.U.T (2008) 5 NWLR (PT.1081), PG. 610 @ 628 and urged the court to resolve issue 2 in favour of the Defendants

On issue three, defendants’ counsel submitted that having established in the previous issues that the Claimant’s employment was terminated in accordance with the provision of the Public Service Rules as a result of serious misconduct, it follows therefore that the Claimant cannot be entitled to payment of salaries from the time of his termination till he resigned and compensation from such termination. Counsel submitted that if the Defendants’ 1st and 2nd issues succeed there will be no basis for the Court to grant him rights to a severance package, pension or gratuity, citing N.N.B PLC V. EGUN (2001) 22 WRN Page 29.

Finally, the defendants’ counsel urged the court to dismiss the Claimant’s relief for payment of salaries and compensation for his dismissal and enter judgment against him with costs in favour of the Defendants.

Omotan Ogunmodede Esq. of counsel for the claimant in his final written address filed on the 26th April, 2019 formulated five issues for determination to wit:

  1. Whether the suspension of the claimant’s salary from January, 2016 till his retirement in September, 2016 is illegal, null and void and a breach of the Federal Polytechnic Act, the Staff Manual and the claimant’s fundamental right to fair hearing?

  1. Whether the suspension of the claimant is illegal, null and void and a breach of the Federal Polytechnic Act, the Staff Manual and the claimant’s fundamental right to fair hearing?

  1. Whether the claimant has validly retired from the employment of the 1st and 2nd defendants since September 30, 2016?

  1. Whether the dismissal of the claimant from the employment of the 1st claimant on April 12, 2017 is illegal, null and void and a breach of the Federal Polytechnic Act and the claimant’s fundamental right to fair hearing?

  1. Whether the claimant is entitled to his withheld salaries from January, 2016, retirement benefits, gratuity and pension?

On issue one, counsel cited Section 13(4) of the Federal Polytechnic Act, 1979(As amended) and Section 17 of the Federal Polytechnic Act (As amended); Regulation 8.6(iv) of the Staff Manual where it was provided that a staff in the employment of the 1st defendant is entitled to his salaries, except he/she is suspended, during which period he/she will be entitled to half of his salary.  Counsel argued that the claimant was in the employment of the 1st defendant till 30th September, 2016, and he is therefore entitled to his salaries for the period.  Counsel pointed out that the salary of the claimant was paid till December, 2015 but was stopped in January, 2016 without any notice or reason. No notice of the suspension of the claimant’s salary was given to him until five months after the stoppage of his salary vide Exhibit F24, which was dated 18th May, 2016, and the notice was withdrawn few days later vide Exhibit F25 dated 26th May, 2016. The 5th defendant in Exhibit F24 stated that the college management took the decision to suspend the claimant’s salary on 11thApril, 2016. Exhibit F24 was therefore only written over a month after the alleged decision. The claimants counsel questioned why the claimant’s salary was stopped since January, 2016 and on whose authority? Counsel referred to Exhibit F25 which was stated to have superseded Exhibit F24 and refers to the same meeting of 11thApril, 2016. Learned counsel posited that in Exhibit F25, there was no reference to the stoppage of the claimant’s salary meaning that, no decision was taken by the management to suspend the claimant’s salary. Learned counsel submitted that the 5th defendant was unilaterally responsible for the stoppage of his salary, and this was never rebutted by the defendants and especially the 5th defendant. He surmised that the 5th defendant cannot suo motu suspend the claimant’s salary and added that the defendants are aware of the illegality of their decision to stop the claimant’s salary, and this was why it took them almost five months to notify him of the decision vide Exhibit F24 and led to the withdrawal of same eight days later vide Exhibit F25 which superseded Exhibit F24.

The counsel referred the court to Exhibit F17 written by the claimant on 7th April, 2015 in which he complained about the 5th defendant’s membership of the investigation committee on the ground of bias, and that the 5th defendant’s relationship with the claimant’s wife led to the failure of his marriage. He also complained about the arbitral stoppage of the salaries of staff by the 5th defendant. The claimant’s counsel argued that even if the claimant is suspended, he is still entitled to half of his salary by virtue of Section 17(4) of Federal Polytechnic Act, 1979 (as amended). He therefore urged the court to resolve this issue in favour of the claimant and hold that the suspension of his salary from January, 2016 till his retirement is unlawful and order the payment of his salaries.

On issue two, counsel argued that the decision to suspend a senior staff of the 1st defendant, could only validly be taken by the College Council after hearing the staff or by the Rector who must immediately inform the Council, failure to inform the Council will however make the suspension invalid. He went further to highlight the other procedure to be followed in the suspension of a staff which can invalidate a suspension under Sections 17, (2), (3), (4)of the Federal Polytechnic Act, 1979 (as amended) and the case of O. A. ADEYEMI ADENIYI V. GOVERNING COUNCIL OF YABA (1993) LPELR-128(SC) Pp 45 Paras A-B.

Counsel added that assuming that it was the 3rd defendant that took the decision to suspend the claimant, the suspension would still have been unlawful as the Council sued as the 2nd defendant was not informed forthwith.

Counsel contended that the claimant’s suspension is unlawful, null and void having not been done in the manner prescribed by the Act, as it is the law that where a statute provides for the method of performing an act, that method and no other method must be used. Learned Counsel argued that the Registrar [4th registrar] is an agent of the1st defendant and cannot delegate his power to the 5th defendant. The letters of suspension [Exhibits F24 and F25] are therefore void having been signed by the 5th defendant who at best will be an agent of the 4th defendant, he cited Bamgboye v. University of Ilorin [1999] NWLR (Pt. 622) 290 @ 329 Paras. D-E, 331 and urged the court to resolve this issue in favour of the claimant and set aside his suspension as unlawful and null and void.

On issue three, the counsel submitted that an employee can resign and/or retire from an employment in line with his contract of service as contained in his letter of appointment. The claimant gave a three month notice to retire on health ground -vide Exhibit F28 in line with his contract of service as contained in Exhibit F2. He therefore submitted that the claimant complied with the conditions in Exhibit F2, and validly retired from the 1st defendant’s employment.

Counsel submitted further that Exhibit F28 became effective on 6th June, 2016 when it was received, citing ONUKWUBIRI & ANOR v. IBEAKANMA & ORS (2014) LPELR-23804(CA). Learned counsel urged the court to resolve this issue in favour of the claimant and hold that the claimant validly retired from the 1st defendant’s employment and is entitled to all his retirement benefits including gratuity, pension etc.

On issue four, counsel cited A.I. Wilson V. Attorney -General of Bendel State & ORS (1985) LPELR-3496(SC) and submitted that since the claimant had validly retired from the employment of the 1st defendant on 30th September, 2016 vide Exhibit F28, the defendant can no longer dismiss the claimant as he was no longer in the employment of the 1st defendant. He urged the court to set aside the dismissal on this ground and declare same as invalid.

Counsel pointed out that the claimant was appointed by the 2nd defendant as an academic staff of the 1st defendant vide Exhibits F2 and F3 and his employment is statutorily flavoured, as the power of the 2nd defendant to appoint the claimant is derived from Section 4 of the Federal Polytechnic Act, 1979 [as amended]; The terms of the contract of the claimant’s employment are also regulated by the Federal Polytechnic Act. The claimant is therefore a public officer and by virtue of his appointment, his employment is pensionable.

 Counsel reiterated that the claimant can only be appointed and removed by the 2nd defendant [the Council]. He cited Section 17 of the Federal Polytechnic Act (as amended) and argued that a contract of service can only be terminated by adhering strictly to the procedure laid down in the Statute on a ground of misconduct.  He cited the case of Eperokun v. University of Lagos [1986] 4 NWLR [Pt. 34] 162 @ 201.

Counsel argued that the claimant was never invited to appear before the 2nd defendant and was not given notice of the reasons to dismiss him by the 2nd defendant nor afforded an opportunity of making representation to the council on the matter. The statutory procedure was therefore not followed in the alleged dismissal of the claimant, hence the alleged dismissal is unlawful, null and void and should be set aside as the breach of the statutory provisions rendered the purported termination void.

Counsel to the claimant contended that the College Council cannot act through an Expanded Management Committee or the Minister of Education as the power of statutory dismissal being a delegated power, cannot be delegated. It can therefore not be exercised by another person or body of persons other than the Council. Any delegation of that power or its exercise by another person or group of persons will be void. He cited the case of Dr. Tunde Bamgboye V. University Of Ilorin &Anor (1999) LPELR-737(SC The investigation of the Committee is also in breach of the twin rules of natural justice as the 5th defendant, who holds the brief of the defendants against the claimant, was a member of the Committee thereby being a judge in his own cause. He surmised that the letter of dismissal [Exhibit F33] having originated from this flawed process is therefore unlawful. He urged the court to so hold

On issue five, the counsel submitted that this issue is consequential. Once the court holds that the suspension of the claimant’s salary, his suspension and dismissal are unlawful and null and void and that the claimant has properly retired from the 1st defendant, the claimant will be entitled to his withheld salaries, pension, gratuity and severance package. He cited Section 173 (1) &(2) of the Constitution of the Federal Republic of Nigeria (1999) [As amended]; and ELECTRICITY CORPORATION OF NIGERIA v. NICOL (1968) LPELR-25505(SC).

Learned Counsel finally urged the court to resolve the issues in favour of the claimant.

After a careful perusal of the processes filed by both parties in this suit, I have come up with the following issues which will best determine this suit to wit;

  1. Whether or not the suspension of the claimant’s salaries and his subsequent suspension was lawful;
  2. Whether or not the claimant validly retired from the employment of the defendants on the 30th of September, 2016.
  3. Whether or not the dismissal letter of the claimant on April 12, 2017 by the defendants is lawful
  4. Whether or not the claimant is entitled to his claims.

On issue one, the claimant led evidence that the 1st defendant stopped paying his salary in January, 2016 without any prior notice or reason, and it was not until five months later i.e. 16th May, 2016 that he received a notification of his suspension and stoppage of his salary vide Exhibit F24 signed by the 5th defendant. In addition the claimant led evidence that Exhibit F24 was withdrawn some few days later vide Exhibit F25 wherein it was stated that the decision to suspend the claimant was taken in April 2016, by the college management but no mention was made about the suspension of his salaries.

The defendants on the other hand contended that the claimant refused/neglected to appear and defend the allegations made against him on the violation of the 1st defendant’s leave policy and fraudulent reports on updates on study leave. The defendants led evidence that on the 18th May 2016, the claimant was issued with a query and refused to respond thereto, hence the school sent another letter to him which was ignored. It was based on the refusal of the claimant to respond to the queries that led to his suspension and the stoppage of his salaries.

In treating this issue, it is important to note that the Claimant was in a statutory employment with the 1st defendant, and this was never in contention. The claimant in proof thereof placed before this court Exhibit F2 i.e. his letter of appointment. The position of the law is that a statutory employment can only be determined in accordance with the statute, Rules and Regulations guiding same. Thus, the burden is on the claimant to proof that there was a breach of the terms and conditions of his employment.

The Rules/ Regulations and conditions of employment relied on by the claimant in this case are Exhibit F2 ;Federal Polytechnics Act-1979 and the Federal Polytechnic Staff Manual, June, 1986.

The relevant portion of the statute guiding the claimant’s employment relating to suspension are hereby stated for ease of reference;

Section 17 of the Federal Polytechnics Act-1979 and Regulation 8.4 of the Federal Polytechnic Staff Manual June 1986(which are similarly worded) provide thus:

 

(2) The Rector may, in case of misconduct by a member of the staff which in the opinion of the Rector is prejudicial to the interests of the polytechnic, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause, any member of staff may be suspended from office or his appointment may be terminated by the Council, and for the purpose of this subsection, “good cause” means-

a: any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

b: any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or

c: conduct of a scandalous or other disgraceful nature which the council considers to be such as to render the person concerned unfit to continue to hold his office; or

d: conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.

(4) Any person suspended pursuant to subsection 2 or 3 of this section, shall be placed on half pay and the Council shall before the expiration of the period of three months after the date of such suspension consider the case against that person and come to a decision as to-

a.whether to continue such person’s suspension and if so on what terms (including the proportion of this emoluments to be paid to him);

  1. whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension;
  2. whether to terminate the appointment of the person in question, in which case such a person, will not be entitled to the proportion of his emoluments withheld during the period of suspension; or

d.whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine, and in any case where the Council, pursuant to this section, decides to continue the persons suspension or decides to take further disciplinary action against the person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person.

The facts deduced from the pleadings and supported by the evidence led before this court, are:

  1. It is not in dispute that the claimant’s salary was stopped in January 2016
  2. The claimant resumed work on the 1st of June, 2016 when he received all the letters written to him.
  3. The claimant was first placed on suspension vide Exhibit F 24 a letter dated May 18, 2016 wherein he was informed that the defendants at a meeting in April, 2016 decided the following;

  1. That his salaries should be stopped from December 2015
  2. That he be placed on suspension for three months

iii.              That the suspension is based on his refusal to appear before the defendants investigating committee.

Later, Exhibit F 25 dated 26th May, 2016 was written to the claimant which stated that:

  1. He had been suspended for three months for disobedience to constituted authority
  2. His suspension was with immediate effect.

iii.              He should appear before the defendants investigating committee to defend himself on the allegations against him on violation of College study leave policy

  1. The letter supersedes the earlier one dated May 18, 2016

It is worthy of note that stoppage of the claimant’s salary was not included in Exhibit F25. The question that arises therefrom is, whether the claimant is entitled to his salaries from January 2016 till May 2016? In answering this question, Exhibits F 22 and F 23 is instructive. Exhibit F 23 is a query dated February 29, 2016 issued to the claimant wherein the defendants observed that he (claimant) had been absent from duty since December 23, 2015. The claimant was asked to provide a written explanation to reach the Registry of the Defendants on 2nd March, 2016. At the foot of Exhibit F23 is an acknowledgment by the claimant endorsed as follows; “Received on the 1st of June 2016”. The claimant thereafter wrote Exhibit F 22 dated April, 2016 in response, wherein the following facts emerged;

  1. That he applied for annual leave on the 2nd of December, 2015 but he did not wait to get approval before proceeding on leave.
  2. On the 12th of January, 2016 he applied for an exam leave through the office of the Registrar

iii.              He was concerned that his salary was stopped since January, 2016.

Regulation 10.1 of the Federal Polytechnic Staff Manual-June 1986 provides thus:

  1. a)The leave year shall be the period from 1st January to 31st December of the same year. Employees shall be free to take their leave anytime within the period, subject to official exigencies of work, and all leave entitlements must be taken within the year, otherwise it shall lapse, unless there is special approval by the Rector.

10.2:

  1. a)Leave shall be granted on the recommendation of Head of Department concerned provided that such recommendation is in accordance with the provisions of Regulation 10.3 below.

It is clear from the above evidence on record that the Claimant proceeded on leave without approval and was absent from office from December 2015, hence he did not receive all the letters sent to him through his department until the 1st of June, 2016. The suspension of the claimant’s salaries is therefore justifiable as he did not work for the period of which he is claiming, i.e. January 2016 till May 2016. The position of the law on this is very clear, and it is that an employee cannot claim for salaries or wages for services not rendered see Olatubosun v. NISER [1999] LPELR-257 SC.

The claimant in Exhibit F 22 asserted that he applied for Examination leave through the office of the Registrar on the 12th of January, 2016 but there is no record of such an application or approval of same before this court and the court is precluded from going on a voyage of discovery see Abubakar v. Yar’Adua [2009] All FWLR (Pt.457)1, where the Supreme Court held:

“a court of law can only pronounce judgment in the light of evidence presented and proved before it. A Court of law cannot go outside the evidence presented and proved before it by embarking on a voyage of discovery in search of other evidence in favour of the parties…”

The procedure for a grant of leave for an examination is stated in Regulation 10.9 5of the staff manual which provides thus:

An employee may be allowed special leave on full pay up to seven days to take an examination, the passing of which need not be a condition of his current appointment, provided the Registrar is satisfied:

 

(a) That his general value to the institution justifies the condition;

(b) That he is industrious and efficient in the performance of his duties; and

(c)  That his passing of the examination is likely to enhance his competence at his work in the institution.

 

Any days in excess of the 7 days shall be deducted from the officer’s next annual leave.

10.16

When an officer due to return to duty fails to do so, he shall be regarded as being absent without leave.

This means that even if the claimant indeed sought an examination leave, he only had seven days to be away from work, any excess of which he would be regarded as being absent without leave and in this case, the claimant was away up until June, 2016. The claimant in this case cannot therefore claim that the suspension of his salaries from January till May 2016 was unlawful.

I find that the suspension of the claimant’s salary from January till May 26, 2016 is lawful. I so hold.

On the suspension of the claimant, the duty of this court is to ascertain whether or not due process was followed. The claimant’s counsel made heavy weather of the breach of the claimant’s right to fair hearing in the process of his suspension. Suspension was aptly defined in the case of Akinyanju V. University of Ilorin [2005] 7 NWLR (Pt.923) 87 where the court held that suspension means to defer, lay aside or hold in abeyance, it also means to halt halfway but not to bring to an end. The issue of fair hearing is not applicable in the suspension of an employee pending an investigation, as an employer has a right to safeguard his interest in his business and where an employee has done anything that will jeopardise the organization, the employer’s right to suspend him pending investigation is sacrosanct and the principles of fair hearing will not come into play See Ayenwa v. University of Jos [2000] 6 NWLR (Pt.659) 142.

In Jide Osisanya V. Afribank Nig PLC 2007 1-2 SC 317the Supreme Court per Oguntade JSC held thus;

“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings.”

By regulation 8.4 of the staff manual and section 17 of the Federal Polytechnics Act, the defendants have the right to suspend an employee who is in breach of the laid down regulations.

Suspension is a tool of business practice and in accordance with judicial decision, to ask an officer being investigated to stay away from the place of work to permit unhindered investigation to be carried out and also allow peace to reign at his place of work is in line with best business practice. The period of suspension will keep such person out of further mischief and provide the employer further time for reflection and rumination. See Longe v. FBN Plc [2006] 3 NWLR (Pt.967) Pg.228; Amadiume v. Ibok [2006] 6 NWLR (Pt.975) 158 CA

While acknowledging the defendants’ right to suspend the claimant, the procedure laid down by the Rules and Regulations guiding his employment must be observed by the defendants. Section 17(4) of the Fed. Poly Act and the regulations in the staff manual that a staff placed on suspension must be on half salary and must have his case determined within three months, this was however not done in the instant case.

In Udegbunam v. F.C.D.A [2003] 10 NWLR (Pt.829) 487, it was held that an employer retains the discretion to give a lesser punishment to an employee, but it has no discretion to give a higher punishment than that prescribed.

It is based on the above, that I find that the 1st defendant retains the right to suspend the claimant S.17 (4) of the Act requires that he should be placed on half pay, thus the suspension without pay is ordinarily unlawful. However, from the facts available in the instant case, as at the time the claimant was suspended he was absent from duty and there is no evidence that he was working for the 1st defendant, his only defence was that he sought for leave but did not wait for the approval before proceeding on leave. The claimant is therefore disentitled from claiming salaries for work not done. I so hold.

On issue two, the claimant contended that he retired from the service of the 1st defendant on health ground vide a letter dated the 6th of June, 2016 and his intention to proceed on his terminal leave immediately and gave the defendants a 3 month notice to retire in line with his letter of appointment, and immediately proceeded on another accumulated leave.

The defendants on the other hand contended that the voluntary retirement notice letter was an act or ploy by the claimant to avoid been disciplined by the defendants due to his act of insubordination.

Regulation 6.1 of the Fed. Poly. Staff Manual provides thus;

The compulsory retiring age shall be 60 years. However, an officer can voluntarily opt to retire on attaining the age of 45.

The provision is crystal clear on this issue that an officer can voluntarily opt to retire provided he has attained the age of 45. It is in evidence that the claimant is of age as at the time he put in his letter of retirement, this is in evidence and was not in any way contended by the defendants.

In WAEC v. Oshionebo [2006] 12 NWLR (Pt.994) 258 CA, it was held that a notice of resignation is effective, not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent.

The above principle also applies to retirement, in that there is absolute power to resign/retire and definitely no power to refuse same. Anything contrary to this will amount to unfair labour practice. I lean in support of the position canvassed by my learned brother Benedict Kanyip J. in a paper delivered by him titled “The Changing face of Nigerian Labour Law Jurisprudence and What Employers need to Know” a discussion paper presented at the Perchstone & Graeys ;Emerging Trend Seminar on Labour Law, when he wrote as follows;

“…it should be noted that labor laws, when ambiguous, are designed to benefit the employee….in Ineh Monday Mgbeti v. Unity Bank Plc, a clause in the Employee Handbook, which provided, inter alia, that Management reserves the right to reject a notice of resignation or payment in lieu from an employee if it is seen as a strategy to cover up a fraud or misconduct to avoid disciplinary action (what I will call the Unity Bank Clause), was not only struck down but it was held to approximate to forced labour contrary to Section 34 (1) (c) of the 1999 Constitution and section 73 (1) of the Labour Act; as such the provision was illegal and unconstitutional. In arriving at this decision, the NIC placed reliance on the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No.29) otherwise called the Forced Labour Convention…”

Similarly, the reason given by the defendants to accept the voluntary retirement of the claimant is that it is a ploy to escape disciplinary action. This position is however untenable as the claimant exercised his right to retire whilst the defendants slept on theirs.

I find premised on the above that the claimant having attained the age of voluntarily retirement, validly retired from the service of the 1st defendant effective 30th from of September, 2016. I so hold.

On issue three, whether or not the dismissal of the claimant in April, 2017 by the defendants is valid, it is pertinent to state that the defendants placed heavy reliance on the Public service rules, 2008 over the Federal Polytechnics Act 1979 which is applicable to the defendants and is fully operational. As a matter of fact, the claimant’s offer of appointment i.e. Exhibit F 02 in paragraph 2 was specific as to the conditions of service applicable to the claimant, where it states:

“The conditions of service including the fringe benefits, are as obtainable in Federal Polytechnics.”

The law is trite that the express mention of a thing is the exclusion of another. See Adekoye & Ors v. Nigerian Security Printing Minting Company Ltd [2009] LPELR-106 (SC)

I find therefore that it is the Federal Polytechnic Act 1979 and the Federal Polytechnic Staff Manual June 1986 that is applicable to the employment of the claimant.

The procedure for the removal from office of an academic staff is captured in

Section 17 of the Federal Polytechnics Act-1979 and Regulation 8.4 of the Federal Polytechnic Staff Manual June 1986, is hereby restated as follows;

If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic other than the Rector, should be removed from office on the ground of misconduct or inability to perform the function of his office, the Council shall-

  1. Give notice of those reasons to the person in question;
  2. Afford him an opportunity of making representations in person on the matter to the Council; and
  3. 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 arrangements-(i) if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; or (ii) for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and (iii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the council.

These steps were not complied with before the claimant retired, as the claimant’s case was never referred to council, assuming even that the retirement of the claimant in September, 2016 did not occur, can the defendants be said to have validly dismissed the claimant in April, 2017? The answer is in the negative as the letter of dismissal tendered as Exhibit F33 clearly discloses the following facts:

  1. The Minister of Education approved at the Expanded Management Committee of August 29, 2016 that the claimant be dismissed accordingly.
  2. The claimant was dismissed in April, 2017, eight(8) months after the Minister for Education’s directive to dismiss the claimant with immediate effect for gross misconduct
  3. The letter was stated to have superseded an earlier letter dated March 30th 2016 on the subject matter.

I pause here to state that there is no letter dated March 30th 2016 tendered during the course of trial in this court. This court will not as stated earlier go fishing for evidence for the parties. The parties in a case owe it a duty to bring all facts before the court that is relevant to the just determination of their case in the absence of which the court will base its decision on the evidence led before it.

It is on record that although the claimant’s retirement took effect in September, 2016, having submitted the letter of retirement in June 2016, with the requisite three months’ notice to terminate in September 2016, the employment relationship had been effectively brought to an end and his retirement effectively activated, the later decision to dismiss the claimant in August 2016 by the defendants is thereby rendered as an afterthought, more over this decision was not communicated to the claimant until April, 2017 about 8 months after the decision was taken, when the notice of retirement had expired and the claimant is presumed in law to have exited the service of the 1st defendant.

In view of the above, I find it unnecessary to delve further into the procedure that led to the purported dismissal of the claimant having held earlier that the claimant validly retired in September, 2016.

I find that the purported dismissal of the Claimant after he had validly tendered his voluntary retirement is unlawful and of no effect whatsoever. I so hold.

On the reliefs sought by the claimant, I find that the claim one which is for an order setting aside the suspension of the salaries of the claimant from the 1st defendant’s employment. I have held that workers are only entitled to wages for work done. This relief fails. I so hold

Claim two is for an order setting aside the suspension of the claimant. Having held that the defendant did not comply with the statute in suspending the claimant, I find that this relief although succeed, but this will be merely academic, considering the facts in this case. I so hold.

Claim three is for a declaration that the claimant has validly retired from the defendant’s employment since 30th September, 2016.  I have held that the claimant validly retired from the defendants’ employment. This relief therefore succeeds. I so hold.

Claim four is for an order setting aside the letter of dismissal of the claimant by the defendants with Reference Number:  AD/R/S.841/Vol.2/295 dated April 12, 2017. I have held earlier that the subsequent purported dismissal of the claimant by the defendants is null and void. I find therefore that this relief succeeds. I so hold.

Claim 5 is an order directing the defendants to pay the claimant the sum of N408,463.64 per month being the withheld salary of the claimant from January, 2016 to 30th September, 2016 totalling N3,676,172.76k. The claimant is however not entitled to any salary for the period as claimed considering the reasoning of the court above on this issue. I so find and hold.

Claim 6 is for an order directing the defendants to pay the claimant his pension from October, 2016 till date of judgment and thereafter till his death.

The Court of appeal in MOMODU V. N.U.L.G.E [1994] 8 NWLR (PT. 362) 336 CA, held that pension is an accrued right of an employee upon retirement from the service of his employer and same cannot be unilaterally taken away by his employer. The claimant having worked for the defendants for over 15years and also attained the age of 45 is entitled to his pension. See Regulation 6.7 of the Federal Polytechnic staff manual. It is in consequence that I find that claimant is entitled to be paid his accrued pension by the defendants. I so hold.

Claim 7 is an order directing the defendants to pay the claimant his severance package. A severance is a sum of money that an employer pays to an employee when the employee leaves the company in case of layoffs, often in exchange for some kind of waiver. In fact according to Wikipedia, a severance package is pay and benefits employees receive when they leave employment unwillingly. The claimant in this case voluntarily retired from the defendant’s employment. I find therefore that he is not entitled to severance. I so hold.

Claim 8 is for an order directing the defendants to pay the claimant his gratuity. Just like his pension, the claimant is entitled to be paid his gratuity in accordance with Regulation 6.7 of the Fed Poly Staff Manual. I so find and hold.

Claim 9 is for interest on money at 21% per annum. All monetary sum awarded in this Judgment shall attract an interest of 20% per annum on the total judgment sum until same is finally liquidated.

It is in the light of all the above that I hold that the Claimant’s claims succeed in part and for the avoidance of doubt, I declare and order as follows;

  1. The claimant validly retired from the employment of the defendants in September, 2016.
  2. The letter of dismissal of April, 2017 is unlawful null and void.
  3. The claimant’s pension and gratuities accruing to him should be paid by the defendants.
  4. Reliefs 1, 5 & 7 fail
  5. All monetary sum awarded in this Judgment shall attract an interest of 20% per annum on the total judgment sum until same is finally liquidated.

No order as to cost.

Judgment is entered accordingly.

 

 

 

 

Hon. Justice A. A. Adewemimo

Judge

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