IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 9TH APRIL, 2019 SUIT NO. NICN/AK/44/2013
BETWEEN
IDOWU AANU …………………… CLAIMANT
AND
1. FEDERAL UNIVERSITY OF TECHNOLOGY,
AKURE
2. GOVERNING COUNCIL, FEDERAL UNIVERSITY
OF TECHNOLOGY, AKURE
3. PROF. JOSEPH ADEOLA FUWAPE ….…………………..DEFENDANTS
(VICE CHANCELLOR, FEDERAL UNIVERSITY OF
TECHNOLOGY, AKURE)
4. MR. RICHARD ADEYINKA ARIFALO
(REGISTRAR, FEDERAL UNIVERSITY OF TECHNOLOGY,
AKURE)
REPRESENTATION:
Tope Timokun, A.A. Ikujuni and O.J. Adewole for the Claimant.
Dr. O.J. Jejelola with him A.A. Akinrelere, K.A. Gbadamosi Esq.
Faleyimu Vera (Miss) for the Defendants.
JUDGMENT
This is a transferred case from the Federal High Court, Akure and by an Amended General Form of Compliant filed before this Court on the 13th October 2017, the Claimant claim against the defendants jointly and severally as follows:
A Declaration that the dismissal of the claimant from the employment of the 1st defendant, for no specified offence known to the regulations governing the employment of the claimant and without a fair hearing, communicated to the claimant vide a letter, Ref. No. FUTA/REJ/DEMHRS/JS.PF.1453 and dated 20th of May, 2008 is ultra vires the defendants, illegal, unconstitutional, null and void.
An Order of Certiorari directing the defendants to bring the proceedings of the “Disciplinary Panel on Mr. Idowu Aanu” before which the claimant appeared for “interrogation” or trial (which is not admitted) before this Court for Quashing and Quashing same.
An Order setting aside, nullifying or voiding the said dismissal of the claimant from the 1st defendant, and re-instating the claimant to his position in the 1st defendant with all the rights and privileges attached to the said position, including the payment of backlog of his salaries and promotion therein.
IN THE ALTERNATIVE
A Declaration that the dismissal of the claimant from the employment of the 1st defendant, for no specified offence known to the regulations governing the employment of the claimant and without a fair hearing, communicated to the claimant vide a letter, Ref. No. FUTA/REJ/DEMHRS/JS.PF.1453 and dated 20th of May, 2008 is ultra vires the defendants, illegal and wrongful.
An Order directing the defendants, jointly and severally to pay the sum of N4,943,000 (Four million, Nine hundred and Forty-Three Thousand Naira) as special and general and exemplary damages for the wrongful dismissal of the claimant from the employment from the 1st defendant, with particulars as follows:
a.Special Damages:
i.Loss of income for nine (9) years with hardship
Occasioned by loss of income (N27,000 x 12 x 9 yrs) = N2,916,000
ii.Last monthly salary for May, 2008 = N 27,000
b.Exemplary and General Damages
Loss of job opportunities and career prospects occasioned by the stigma of his dismissal on criminal offence and damages to reputation and social standing, psychological trauma and emotional distress occasioned by the sigma of his dismissal on criminal offence which was published for public consumption in the defendant’s bulletin =N2,000.000.
The grouse of the claimant for initiating this suit against the defendants is that as a confirmed staff of the 1st defendant, he was never issued an official query for any act or conduct with criminal intent. That the letters dated 9th June 2004 and 21st July, 2015 respectively were queries for being absent from work without permission and those were normal administrative queries with no criminal intent. However, on the 30th January, 2008, he was issued a query by One Mr. K. Ayeni in respect of an allegation levied against him by One Mr.Ayodele Bolade which was reported to the security department of the 1st Defendant. That he responded to the said query on the 1st February, 2008 and on the 14th March 2008 respectively, he was invited to appear for interrogation that upon arrival on the said date and time, he met the venue under lock and key with no sign of human presence, and on the 26th March, 2008 he received yet another letter to appear for interrogation on that same day. Upon his appearance, he averred that he explained himself and underscored the transaction that ensued between him and the complainant, that he denied any criminal allegation against him. Yet, he received another letter to appear for interrogation on the 7th April 2008, he responded to same and he was confronted with another allegation of collection of money under false pretence. According to him he responded that his dealings had no criminal coloration. Claimant went on to state that on the 20th May 2008, he received a Letter of Dismissal from the employ of the 1st defendant signed by the Registrar, that on the 28th May, 2008, he was denied access to his current account No. 0383025001038-5 with UBA Bank based on the allegation of fraud levied against him by the 1st defendant as such his dismissal. To the claimant the denial of access into his bank account is a ploy by the defendants to punish him. That the actions of the defendants have caused him his reputation, education, accommodation, means of livelihood and as such he has suffered damages. That his last salary before his dismissal was N27,000 (Twenty Seven Thousand Naira) and his dismissal from the employment of the 1st Defendant based on the false and unproven criminal allegation of collecting money under false pretence, an offence unknown to the regulation governing his employment is illegal and wrongful, that his dismissal is not in accordance with the relevant provision of the regulations governing the Condition of service of employees on EUSS 05 and below as approved by the 2nd defendant on 18th May, 1989.
The Defendants on the other hand filed their amended Statement of defence on the 12th December, 2017, they denied the claimant’s contention that he served the 1st defendant meritoriously, and they averred that the regularization of the claimant’s appointment was deferred to 2001 as a result of the report from the Head of the Security on his job performance. Also, that he was not exonerated from any criminal liability or allegation against him in the said query. They contended that the claimant was very much aware of the purpose of his invitation for interrogation as contained in the query dated 30th January 2008, that the evidence of the witnesses showed that the claimant was guilty of the offence alleged against him in view of his admission to same and corroboration in 1st defendant’s disciplinary panel report. They continued that the claimant did not highlight before the said panel that the transaction between him and the said Mr. Ayodele Bolade has no criminal colorations that the Report of the said panel contradicts the averment of the claimant. Furthermore, they averred that the 1st defendant has the power to stop the withdrawal of money from the account of the claimant when the account has been used in the perpetration of fraud. They noted that his dismissal was in accordance with the 1st Defendant’s regulation governing his condition of service as such it was lawful and not wrongful. That the said dismissal from employ of the 1st defendant does not foreclose his possibility of securing another employment, and that he is not entitled to the claim of special, exemplary and general damages. They concluded that the claimant’s claim should be dismissed with substantial cost against him as same is vexatious, gold-digging and an abuse of the Court processes.
During trial, parties testified and tendered documents in prove of their respective cases, the Claimant testified for himself as CW, he adopted his written statement on oath deposed to on the 13th October, 2017 as his evidence in the case, he also tendered some documents which were frontloaded (alongside his other processes) in support of his cases; all documents were admitted by the Court and marked Exhibits IA-IA11. During cross-examination, Defence Counsel through CW also tendered some documents which were admitted and marked Exhibits IA12-IA16. The Defendants during trial also testified through one Major S. F. Adeyemo (Rtd), Mr. Yusuf Oluwole, Barr. Fasuhan Patrick as DW1, DW2, DW3, they adopted their sworn depositions as their evidence in the case, they also tendered some documents which was admitted and marked by the Court as Exhibits SF, IA15, PO-P2.
At the close of trial and in compliance with the rules of this Court, parties caused their written addresses to be filed, the defendants filed theirs on the 4th May, 2018 and formulated four (4) crucial issues for the determination of the Court, the claimant also filed his on the 15th August, 2018 and canvassed two (2) major issues also for the court’s determination, the defendants on the 15th October,2018 also filed a Reply address on point of law to the Claimant’s final written address. On the 26th February 2019, this Court order parties to further address it on the document that regulates the Claimant’s employment whether it is the Regulations Governing the Conditions of Service of Employee on EUSS 05 and Below Approved by the Council (Exhibit IA11) or Section 15 of the Federal Universities of Technology Act, Cap F23, Laws of the Federation of Nigeria (2004) as amended; Salient points discussed in the written submissions of both parties would be discussed in the course of this judgment.
Upon an in-depth consideration of the processes filed by parties and supporting documents, their respective written submissions canvassed by learned counsel on both divide, it is my respectful view that the issues that would best determine this suit as canvassed by parties can be fused into:
Whether the Dismissal of the Claimant by the 1st Defendant on grounds of misconduct was in compliance with the Principle of fair hearing and the extant law of the 1st Defendant’s Regulation Governing the Condition of Service of Employee and Euss 05 and below (approved by the Council) at its 30th Statutory Meeting of 18th May, 1989.
Whether the Claimant has proven his case to be entitled to the reliefs sought.
Before delving into the main suit, the defendants by paragraph 6 of their further amended statement of defence filed on the 12th December 2017 contended that the averments contained in paragraphs 12-16, 21-26, 30, 34, 35, 37-44 of the Claimant’s further amended statement of facts were not contained in the original statement of claim filed before the Federal High Court that the matter was transferred to this Court, and that no order of amendment was sought before this Court hence the claimant cannot rely on those paragraphs at trial.
It is noteworthy on the record of this Court that Learned claimant’s counsel before this Court on the 2nd of March, 2017 informed the Court that he filed a Motion for the amendment of statement of facts and this Court granted his prayers. Hence, the contention by the defendants that no order of amendment was sought is false. However on the defendants’ argument that the Claimant’s further amended statement of facts contained some facts which were not contained in the original statement of claim filed before the Federal High Court. The position of the law is settled and clear in that the primary purpose of amendment is to bring in line new facts with existing ones, See the cases of Abasi v. Labisi [1958] WNLR 12, Fapohunda v. Oluwasola [1999] 3 NWLR (Pt. 596) 531, it is also trite that in an amendment of statement of claim, a new cause of action which did not exist at the date of the writ cannot be introduced, indeed, if the true points in issue are to be determined, the pleadings of either party should be rigidly adhered to and that the Court should make such arrangement as are necessary for the real rights of the parties to be determined. However, if an amendment is to the effect that it would bring an entirely fresh cause of action arising after the action had been started, such an amendment may not be allowed, see the case of World Gate Ltd v. Senbajo [2000] 4 NWLR (Pt. 654) 681-682, CBN v. Dinneh [2005] LPELR-11349 (CA), Olusi & Anor v. Obanobi & anor [2014] LPELR-22089 (CA).By Jessica Trading Company Ltd v. Bendel Insurance co. Ltd [2003] LPELR- 1608SC; as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is a matter of right on his part to have it corrected if it can be done without injustice to the other party by way of an amendment.
A pertinent question that requires an answer is does the amendment by introduction of paragraphs 12-16, 21-26, 30, 34, 35, 37-44 in the Claimant’s further amended statement of facts constitute a fresh cause of action? I answer in the negative, this is because the facts averred in the above stated paragraphs do not constitute a fresh cause of action they are amendment by the claimant which has not in any way added a fresh cause of action, it merely provided more facts in addition and evincing the cause of action for which issues have already been joined. A practical analogy is liken to a Toyota car that needs a replacement for a faulty engine to make it function. All that the owner needs do is to secure another Toyota engine to get it back on the road, without necessarily changing the model of the car and function of the Toyota car. It is also the law that a trial Court would be acting within its power to grant an amendment even if to do so would be to add to the existing cause of action, provided the addition of the new cause of action arose out of the same facts in respect of which the claimant has already claimed relief, see the cases of Foka v. Fako [1968] NMLR page 441, Solanke v. Shomefun [1974] 1 SC page 141;A, U. Amadi v. Thomas APLIN &Co Ltd [1972] 1 All NLR part 1, page 409, Azazi & Ors v. Adhekegba (Court of Appeal Decision on 22nd January 2009 before Uwani Musa Abba-Aji, Jimi Olukayode Bada, Ayobde Olujimi Lokulo-Sodipo JCAs). It is in view of the above stated arguments and authorities cited supra that I find that paragraphs 12-16, 21-26, 30, 34, 35, 37-44 of the Claimant’s further amended statement of facts form part and parcel of the claimant’s case and the contention of the defendants in paragraph 6 of their further amended statement of defence is hereby discountenanced for lacking in merit. I so hold.
There is also the need to clarify at this point a misconception of the Learned claimant’s Counsel in Paragraph 4.39 of his Written Submission wherein he argued that judicial powers are not vested in the Investigating Panel established or constitutes by an employer, therefore any purported exercise of judicial powers by such a panel is a denial of right to fair hearing under Section 36(1) and (4) of the 1999 Constitution, that an attempt to equate the criminal offence with mere misconduct or gross misconduct is cosmetic and a mere sophistry as there is a world of difference between gross misconduct and criminal offence. I wish to unequivocally state that, that is no longer the position of the law, there is now a departure from the position as argued by learned claimant’s counsel in the Apex Court decision of P.C Mike Eze v. Spring Bank Plc [2011] 12 SC [Pt.1) 173, the Court affirming its earlier decision in Arinze v. First Bank of Nig. Ltd [2004] 12 NWLR (Pt.888) 663 @673; in that case the appellant was said to have committed a gross misconduct amounting to criminal offences for which the appellant must have been prosecuted prior to his dismissal, the apex Court affirming its decision in Arinze’s case supra, held that it was not necessary for the respondent in that case which is the Bank to have waited for the prosecution of appellant from criminal offence disclosed in his various act of gross misconduct before dealing with him with appropriate dismissal. It is no longer the law where an employee commits acts of gross misconduct against his employer which acts discloses criminal offences under any law that the employer has to prosecute or wait for the outcome of the prosecution of the employee for criminal offence before proceeding to discipline the employee under contract of service or employment. Rhodes Vivour JSC added thus:
…the master does not have to report the matter to the Police and wait for the conclusion of a subsequent criminal trial before he dismisses the errant employee. The master can proceed to dismiss the employee once the master is satisfied that the employee did something against the interest of the master…
The Current position of law is as clearly stated above by the Apex Court, hence the 1st defendant/employer in this case need not to have first prosecuted the claimant/employee in a Court of law or wait for the outcome of the Court’s decision before exercising its disciplinary powers over its employee. The law is of common in the world of work that an employer has disciplinary powers over its employee in any case of misconduct. That power is exercised by an investigatory panel who has a quasi-judicial, though administrative in nature. This is adopted in order to ensure compliance with the requirement of the principles of fair hearing in the discharge of its mandate which cannot be equated to the specialized, professional and statutory procedure of a court or tribunal wherein strict observance of the provisions of the Evidence Act was required. Such an administrative panel is required by law in the discharge of its duty to observe the principles of fair hearing by affording adequate opportunity to the person/s against whom allegations were made, to know and answer to such allegations. See Akwa Ibom Civil Service Comm.& Ors V. Akpan. [2013] LPELR- 22105 CA. The investigatory panel of enquiry established by the 1st defendant was constituted in consonance with the regulations of the 1st defendant to ensure that fair hearing is given to the claimant on the allegation levied against him. It is consequent upon all stated above that I find the claimant’s argument in this regard unmeritorious, it is therefore bound to be discountenanced and thus discountenanced. I so hold.
Now, with respect to the authenticity or otherwise of Exhibits IA13 and IA15 (i.e. the letter of pleading dated 26th March 2008 and the undertaking dated 25th January, 2008) written by the claimant. The learned claimant’s counsel contended at Paragraph 4.28 of his written submission that Exhibits IA13 and IA15 were signed under duress by the claimant as such the Court should not ascribed any probative value to both documents. It is trite law that it is not enough to allege that a person had exerted duress or undue influence, such duress must be proven by the person who alleges, See the dictum of Lewey J in Johnson v. Maja [1951] 13 WACA 920, The claimant in this case did not substantiate his assertion of duress, his failure to canvass evidence to prove duress vitiated his assertion that Exhibits IA13 and 1A15 were not voluntarily signed by him, assuredly the onus lies on him to prove by evidence that he was forced to write both documents or did sign both letters (Exhibits IA13 and IA15) under duress, See Hilary Farm Ltd &Ors v. M.V Mahtra & Ors [2007] 14 NWLR (P.1054) 210; Geneva v. Afribank Nig. Plc [2013] LPELR-20662. Moreover, a comparism of Exhibit IA13 and IA15 shows a similarity in the signature of the claimant and also from the evidence adduced on record, there is no piece of evidence indicating that the defendants coerced the claimants to write/sign Exhibit IA13 and IA15. The content of both letters would not have been written or dictated by someone else apart from the maker who in this case is the claimant. The facts of the loan obtained by the claimant at cooperative would not have been obtained from him under duress. I therefore find that the claimant wrote and signed exhibits IA13 and IA15 respectively voluntarily, without any coercion or duress. Accordingly, the contention of the learned claimant’s counsel that Exhibit IA13 and IA15 were written/signed under duress is to be discountenanced and indeed discountenanced for lacking in merit.
Next, to the substantive suit, the Claimant’s grouse for which he took out a Complaint before this Court was that his employment with the 1st defendant was dismissed following the indictment by an investigative panel that found him guilty for allegedly receiving money under false pretence, it is his case that the process leading to his dismissal from the employ of the 1st defendant is not in compliance with the defendants’ regulation governing the conditions of service of employees on Euss 05 and Below, Approved by the council at its 30th statutory meeting of 18th May 1989 (Exhibit IA11), he also argued by paragraphs 35 and 40 of his averments that the criminal allegation of collecting money from one Mr. Ayodele Bolade and One Miss Adebayo as disclosed in Exhibits IA5, SF against him were false and unproven and he had suffered irreparable loss by virtue of his dismissal from the 1st defendant’s employ. The defendants on the other hand by paragraph 5 of their averment stated that the claimant has been warned on several occasions for being absent from duty, that there were allegation levied of fraudulent transactions against him by some persons, hence he was invited to appear before the investigating panel, that even for a fact the claimant vide some handwritten letters to the security unit of the 1st defendant and to also the chairman panel committee admitted to the commission of the allegation levied against him. That it was upon the report of the panel and his admission that his employment was dismissed in accordance with the Regulation of the 1st defendant’s governing his Condition of Service.
It is explicit from the fact of the case that the employment relationship existent between the claimant and the 1st defendant is that which is statutorily flavored; I must say also that there is no contradiction as to the nature of the relationship between the claimant and the defendants both parties are on the same page on this. Generally, where the provision of a statute govern the conditions of employment of an employee as having secured a special legal status other than the ordinary master and servant relationship with his employer, in that case, the employer is bound to comply with these conditions when it comes to termination/dismissal of appointment of the employee, otherwise the act of termination/dismissal would be declared null and void. It is also proper to consider at this juncture the applicability and relevancy of Section 15 of the Federal Universities of Technology Act, Cap F23, Laws of the Federation of Nigeria (2004) to the claimant’s case. Learned Defence Counsel in his further written address filed on the 12th of March 2019 citing the provisions of Section15(1) of the Federal Universities of Technology Act supra that the word “removed from his office or employment” used in sub-section 1 is with reference to termination, suspension or dismissal, that the allegation warranting the dismissal of the claimant amounts to gross misconduct within the readings of Section15(1) and (3) of the Act that the conduct of the claimant was such that the 2nd defendant considered to be generally of such nature as to render the continued appointment or service of the claimant prejudicial to the interest of the 1st defendant. Learned Claimant’s counsel on the other hand in his further written submission filed on the 6th March 2019 argued that Section 15(3) of the Federal Universities of Technology Act supra relied by the Learned Defence Counsel is inapplicable to the claimant’s case, that the said Section deals with the Removal and discipline of academic, administrative and professional staff particular with suspension and termination by the council that rather it is the Regulation of the 1st defendant’s governing the claimant’s Condition of Service (Exhibit IA11) that is applicable to the claimant’s case, furthermore that under Chapter 1 “Title and Commencement” of Exhibit IA11, it clearly applies to junior staff and Chapter IX specifically Section 12 thereof deals with Dismissal and that assuming but not conceding that the case of the claimant was that of dismissal for misconduct, there was requirement that he would have been afforded to make representation to the vice-chancellor and the registrar and the representation considered by the council and there is no evidence before the Court that the procedure was complied with.
On the applicability of Section 15 of the Federal Universities of Technology Act supra, which provides for Removal and Discipline of academic, administrative and professional staff that is any other staff other than the 3rd defendant, the claimant in this case was employed as a Day/Night Guard in the Security department of the 1st defendant, Chapter 1, Section 5(j) of Exhibit IA11 defines department to mean any teaching, research, administrative or other unit approved by the Council to be a constituent part of the University. In addition, the regulation which claimant alleged governs his condition of service (Exhibit IA11), was made pursuant to the Federal Universities of Technology Act Cap F23 LFN 2004, and approved by Council. It is also the Statute establishing the 1st defendant as disclosed in paragraph 2 of the Claimant’s averment. By Section 3(1)(d) of the Act each University (including the 1st defendant) has the power to carry out its objects and “To provide for the discipline and welfare of members of the University”. While Section 10 (1)(e) empowers the 1st defendant to make regulations for any other matter for which the Act authorizes. It is obvious on record that exhibit IA11, i.e the regulation was made pursuant to FUTA Act. It is on this premise that I find that the Federal Universities of Technology Act Cap F23 LFN 2004 supra is the statute that empowers the 1st defendant to make exhibit IA11 and therefore applicable to the claimant’s case. I so hold.
As regards issue one, it is the claimant’s claim that his dismissal from the employment of the 1st defendant, for no specified offence known to the regulations governing his employment and without a fair hearing, communicated to him vide a letter, Ref. No. FUTA/REJ/DEMHRS/JS.PF.1453 and dated 20th of May, 2008 is ultra vires the defendants, illegal, unconstitutional, null and void. Learned Defence Counsel on the other hand regarding issue one submitted that the dismissal of the claimant by the 1st defendant on the 20th May 2008 on ground of misconduct was done with strict and due compliance with the principle of fair hearing as enshrined under the 1999 constitution as well as the Extant Laws, Regulation and statutes of the 1st defendant, he argued that Exhibit IA5 (the query letter tendered by the claimant dated 30th January, 2008 succinctly specified the offence committed by the claimant and his reply to the said query did not exonerate him, that Exhibit IA6 should be discarded as Exhibit IA5 already captured same, he reiterated that Exhibits IA5 and IA6 already captured the facts that the claimant’s dismissal was based on a specific offence known to the Regulation, Laws and Statutes governing the employment of the claimant, he referred to Article 12 (iv-viii), pages 35 and 36 of the Exhibit IAII. He noted further that from paragraphs 12 & 9 of DW1 & DW3’s depositions on oath respectively was not controverted by the claimant hence it is deemed admitted, in support of this position, he cited Oba J.O. Oyewumi v. Oba Sunday Oladapo Oyediram [2003] 9 FR. P. 96, Cameroun Airlines . Otutuzu [2005] 2 FWLR (P.258)p.997, Leadway Assurance co. Ltd v. Zeco (Nig) Ltd [2004] AFWLR (Pt. 210) p. 1266, Manage v. Gwamma [2005] 2 FWLR (Pt 263)p.584, he urged the Court to hold that the dismissal of the claimant was not unlawful. Counsel also noted that there are various act of misconduct that can lead to either dismissal or termination as prescribed by Section 15(1) and (3) of the Federal Universities of Technology Act, Cap F23 LFN 2004, that in the instance case, the conduct of the claimant was such that the 2nd defendant considered to be generally of such nature as to render the continued appointment or service of the claimant prejudicial or detrimental to the interest of the 1st defendant. On the element of criminality in the claimant’s dismissal Learned Defence Counsel submitted further that it is not necessary nor is it a requirement under the constitution that before an employer summarily dismissed his erring employee or staff from his service the employee must be tried before the Court of law, he rested on the Apex Court decisions in F.C.S.C v. Laoye supra; Garba v. Maiduguri [1986] 2 NWLR (Pt.18) p.559 and other radical cases with similar principles. It is the position of Learned counsel that it is not in every case that an employee must be arraigned before the Court before disciplinary action can be commenced against such erring employee that all the employer needs to do is to afford the employee an opportunity to be heard before exercising his power of summary dismissal even where the allegation for which the employee is being dismissed involves the commission of crime, that in the instant case, the claimant was given adequate notice of allegations against him vide Exhibit IA5, IA6, SF and PO2 and also the opportunity to make representation in his defence before the investigative panel set up by the 1st defendant to look into the allegation made against him. Placing reliance on the authority of Raji v. University of Ilorin[2007] 15 NWLR (Pt.1057) at P. 259, counsel submitted that in the instant case based on the allegation contained in the said query that was issued to the claimant (Exhibit IA5), the 1st defendant has the power within its domestic jurisdiction to set up a panel to investigate the allegation leveled against the claimant, consequently pages 2, 3, 7-9 of Exhibit PO2 shows that the Claimant appeared before the said Disciplinary Panel and was afforded Fair Hearing, that Exhibit IA13 also corroborates that the claimant was given a level playing ground to defend himself before the Panel in this case within the cardinal principle of fair hearing.
Claimant’s counsel in paragraph 4.1 of his written address agreed that indeed the dismissal of the claimant was based on the Report of the Disciplinary Panel (Exhibit PO2), he however contended that there is no provision in the Federal Universities of Technology Act empowering DW1 to investigate criminal offences, also that the allegation against the claimant for which he was investigated and dismissed is a crime, a felony defined in Section 419 of the Criminal Code Act. Counsel also contended that the evidence of DW3 under cross-examination is to the effect that not all queries lead to disciplinary proceeding, the implication of all these is that failure to indicate in the letters of invitation sent to the claimant to appear before the panel the allegation the claimant was coming to meet in order to prepare his defence constitutes a violation of the claimant’s right of fair hearing, that no allegation whatsoever were disclosed in the letters of invitation sent to the claimant before the panel on each occasion, he relied on the cases of Shaidu Nda Maliki v. Michael Imodu Institute for Labour Studies [2009] LPELR-8467 (CA). He continued that there is no evidence before the Court that the claimant was ever afforded the opportunity to see or study the documents relied on by the panel to conduct the interrogation of the claimant, in order to make a defence for himself,, he cited the cases of Yusuf v. UBN Ltd [1996] 6 NWLR (Pt. 457) 632 at 634, NEPA v. Arobieke [2006] 7 NWLR (Pt. 979) 245 at 270-271, 273-274, salu v. Egeibob [1994] 6 NWLR (Pt/348) 44. Adigun v. A.G.Oyo State [1987] 1 NWLR (Pt.53) 678. Counsel affirmed that the consequence of a breach of the rule of natural justice and fair hearing is that the proceedings in the case are null and void. He noted that the testimonies of the Defence witnesses on the admission of the Claimant is erroneous as the position of law is that admission of crime can never be inferred, it must be direct and unequivocal, he cited Obu & Anor v. Okigwe & Ors [2018] LPELR-43938 (CA), that where there is documentary evidence on an aspect of a party’s case, no oral evidence is admissible on that subject, Brossette Manufacturing Nig. Ltd v. Ola Ilekobola Ltd [2007] All FWLR (Pt 379) 1340 at 1366, paragraphs D-E. It is pertinent to state here that the issue of first interrogating and prosecuting the claimant on the criminal allegation before his dismissal has been dealt with earlier in this judgment. It will therefore amount to repetition to reconsider it again.
Regarding the argument of the defendants in paragraphs 4.15 & 4.18 of their written submission that the claimant admitted to the commission of the criminal allegation/misconduct against him also as disclosed in Exhibit IA13, and as such that an unchallenged evidence is deemed admitted. It is imperative to state that the claimant received a query dated 30th January, 2008 from the 1st defendant through the 4th defendant stating that he received the sum of Sixty-Two Thousand Naira (N62, 000) under false pretence from One Ayodele O. Bolade, and paid the said amount into his personal account, thereby arrogating to himself a non-existent office of the Intelligent and Examination Monitoring Officer in a (fake) letter dated 5th December, 2006 addressed to the Director of CCE. He responded to the query vide another letter dated 1st February 2008, (Salient parts herein reproduced), where he stated vide paragraph 3 thereof:
“Furthermore, with regards to the second paragraph of the query, I sought [sic] to explain that the facts of the case this: I should at this stage clearly[sic] that Mr. Ayodele O. Bobade is an unknown person to me with regards to this issue , I had the case and matter with his wife, One Mrs Ayodele whom we have been living in good terms before now she gave me N72,000 (Seventy-Two Thousand Naira Only) with an errand (sic) that:
I should help her son, Ayodele Damilola register U.M.E (Jamb) in that year 2005/2006, the amount plus every other expenses which was sum up to N12,000.
I should help her son Ayodele Damilola purchase P.D.S. form, the amount is N5,000
And that I should help her son Ayodele Damilola pay the P.D.S. school fees the amount which is N65,000
Recall the allegation against me in the Query issued might be said to have been issued in error and with the simple break down of the money collected, there is no way the allegation of obtaining money under false pretence can be substantiated…”
The defendants in paragraph 14 of their statement of fact stated that the letters proves beyond reasonable doubt that claimant committed the allegation made against him. DW3 also averred in his sworn deposition that the claimant admitted the allegation against him. From Exhibits IA12 and IA13 which is a statement written by the claimant, it is evident from both that the Claimant unarguably collected some sum of money from One Mrs Ayodele to help process the JAMB and PDS registration of her son, he admitted that he was entitled to repay the sum of fifty-Five Thousand Naira to Mrs Ayodele, (Claimant’s Letter of Pleading dated 21st March 2008), he undertook to repay the said sum on Monthly bases. The import of which is that the claimant having admitted to the allegations against him, there is therefore no more dispute between the parties in that respect. There is therefore no requirement of prove from the defendants in this case as the law is long settled that facts admitted requires no further proof, Section 123 of the Evidence Act, see the cases Dunlop Nig. Plc (Now DN TYRE & RUBBER PLC) V. Gaslink Nig. Ltd [2018] LPELR- 43642CA; Atanda v. Iliasu [2012] LPELR-19662 (SC),Din v. African Newspaper [1990] 3 NWLR (pt 139) 392, Daniel v. Iroeri [1989] 1 NWLR (Pt 3) 541, Obikoya v. Wema Bank Ltd [1989] 1 NWLR (Pt.96) 157, A.G Nasarawa State v. A.G Plateau State [2012] LPELR- 9730 (SC), Banke & Ors v. Akure North Local Government [2016]64 NLLR (Pt226) 155). Admitted facts are the strongest evidence available to the trial Court. An offshoot question from the foregoing is does the admission by the claimant that he collected the said sum from said Mrs Ayodele precludes the defendant from following the procedure for discipline as provided for in the Regulation of the 1st defendant’s governing his Condition of Service (Exhibit IA11). It is vital to state that whether or not the claimant was guilty of the allegation against him is not in contention for the determination of this Court, the admission of the claimant should put paid to his employment going by the provision of clause 12 (iv) of exhibit IA11, wherein it provides that where an employee is found to have corruptly accepts or obtains or cause any person to accept or attempts to obtain any gift to do any act in relation to the university’s affairs or business, he shall be summarily dismissed. In other words there is no need to go through all the procedure stricto sensu. The Business of the Court is to determine whether or not the defendants followed the process laid down in exhibit IA11 in determination of claimant’s employment and this it does by ensuring that the laid down procedure in the regulation are complied with and followed by an employer in the determination of its employment relationship with the claimant. By clause (vii) states that an employee who is confirmed may be dismissed by the 1st defendant for misconduct, but should be given the opportunity of submitting representation to the VC through his Head of Department and Registrar and be considered by Council. This is to ensure that an employee is given a fair hearing in the process leading to his dismissal/termination. Fair hearing here is to put in another words, give an opportunity to a person whose rights and obligation may be affected to make representation to the administering authority before the authority makes decision affecting that person. It is a vital prerequisite, a breach of same goes to the root of the investigation and thus will be declared a nullity by the Court, see the cases of Faleye & Ors v. Dada &Ors [2016] LPELR 402 97 SC; Banke & Ors v. Akure North Local Government Supra. This is equally founded on the twin pillars of Natural Justice rooted in the maxim Audi Alteram Partem (hear the other side) and nemo judex in causa sua (You cannot be a judge in your own case). See Ekeuzor v. Union Bank of Nigeria Plc [2014] 42 NLLR (Pt. 133) 758, p.793, pars A-B, Mohammed v. Kano Native Authority [1968] 1 ALL NLR (424).
As stated supra that parties are ad idem that the laws regulating the employment and discipline of the claimant in this case is the Regulations Governing the Conditions of Service of Employees on EUSS 05 and below (Approved by Council) at its 30th Statutory Meeting at 18th May, 1985 (Exhibit IA11) which was birthed by the FUTA Act, Regulation 2 provides that the disciplinary measures which may be invoked by the 1st defendant are School/Department/Unit Advice and warnings, Reprimand, Deferment of Increment, withholding of increment, suspension, Reduction in rank, making good loss or damage of University property, interdiction, termination and dismissal. Regulation 12 at page 35 provides for the procedure for the dismissal of an employee;
The above captured disciplinary procedure requires that the defendants before dismissing the claimant on the allegation of misconduct/criminal allegation, he is to be issued a query which should emanate from the Vice Chancellor through his Dean and/or Head of his Department/Unit and Registrar, and such representations shall have been considered by the Council. That he must also be afforded an opportunity to make representation in person on the matter. After the consideration of any representation, the council if satisfied that he should be removed will then approve his removal. All the above procedure enunciated above in the Statute and the Regulation is to ensure that the claimant is given opportunity to defend the allegations against him.
From the record of the Court and also, from Exhibit PO1, the 1st defendant issued the claimant a letter dated 21st July,2005 titled official warning for his (Claimant) failure to resume duty on the 27th June, 2005 after he exhausted his annual leave of five (5) weeks from 19th May to 26th June, 2005, that his act of absenting himself from duty without permission and his other unbecoming behavior of obtaining money under false pretence would earn him severe disciplinary measure, hence the 1st defendant wrote to the 4th defendant that a query be issued to the claimant to explain why disciplinary action should not be taken against him and that his salary should be suspended. The Claimant by Exhibit IA5 which is a query letter dated 30th January, 2008 signed under the authority of the 4th defendant alleging that the claimant collected the sum of Sixty-Two Thousand Naira (N62,000) under false pretence and paid same into his personal account and also arrogated to himself a non-existent office of the Intelligent and Examination Monitoring Officer. He responded to the query vide a letter dated 1st February, 2008, he explained the facts that the allegation against him were made in error and the simple break down of the money collected that he helped the complainant son procure the UME (Jamb) form in the sum of N12,000 and the P.D.S form, the amount which is N5,000 and payment of the P.D.S school fees in the sum of N55,000 as captured supra in this judgment. Also, by Exhibit IA6, the claimant was invited for interrogation vide a letter dated 18th March, 2008 to appear before the disciplinary panel on Wednesday, 26th March, 2008 at 10.00am in the Council Chamber, he was also re-invited vide another letter dated 3rd April 2008 to appear at the same venue on the 7th April, 2008 at 11.am. Noteworthy is the fact that DW1 (the Chief Security Officer) who was claimant’s Head of department, forwarded Exhibit SF (a Report dated 9thJanuary, 2008 titled “A Case of Receiving Under false Pretence 4.1.; Mr. Aanuoluwa Idowu) to the 3rd defendant stating the claimant’s involvement in the criminal allegation levied against him, this was sequel to the enquiry it initiated at his level into the allegation. DW1 stated in the remark and conclusion of the report that:
“REMARK
Mr. Aanuoluwapo Idowu deliberately collected the money form(sic) Mr. Bobade Ayodele under false pretence
Mr. Aanuoluwapo Idowu had grossly painted the University in bad image.
Mr. Aanuoluwapo Idowu’s behavior is uncharacteristic of good security man.
CONCLUSION
In view of the foregoing, I want to recommend that a severe disciplinary measure should be taken against Mr.Aanuoluwpo Idowu to serve as deterrent to others”
The 1st defendant after investigation presented Exhibit PO2 which is the Report of the Disciplinary panel of Mr. Idowu Aanu, Paragraph 7.0 (v) stated that: “The Panel recommends that the spirit of the Regulations Governing the Conditions of Employees on CONTISS 05 and Below in the University be applied. The Regulations Chapter IX, Section12, Sub-Section (iv) has been previously captured supra in this judgment.
Consequently, the panel recommends that Mr. Idowu be dismissed from the service of the University.
It was sequel to this that Exhibit IA7 which is the letter dated 20th May, 2008 titled “letter of dismissal” from the employ of the 1st defendant was issued to the claimant.
In the instant case, it is obvious that the claimant was issued a query by Exhibit IA5 and he responded to same, he was invited for interrogation by Exhibit IA6. He was given opportunity to submit representation for himself vide Exhibit IA12, 13 and the Report of the Committee (Exhibit PO2) was acted upon by the 1st defendant hence his dismissal. At the risk of repetition, it is germane to reiterate that the claimant has admitted to the allegation leveled against him, he was given ample opportunity to defend himself both at the departmental level and at the disciplinary panel constituted by the Vice Chancellor, what more, he wrote a letter of appeal, admitting to the allegation of collecting money, appealed to management to forgive him and wrote an undertaking to refund the money involved, vide exhibits IA12,, IA13 and IA15. I have held supra that this has conclusively absolved the defendants from any further proof. The import of this is that there would be no need for the defendants to produce any further evidence to show that the procedure for dismissal was followed. The complainant was present for him to cross examine them if need be. If I may ask, what’s the purpose of investigating an allegation, if it is not to get to the root of an alleged offence/misconduct? That the 1st defendant achieved by the issuance of the query to the claimant and at the investigatory panel. In Obajimi Ors v. Oloye & Anor [2017] LPELR-42709CA; admission is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts. I have held in this judgment that exhibits IA12 and IA13 evince that claimant admitted to the allegation levied against him by the defendants. I equally find that the defendants complied with the regulation guiding his employment in the circumstance of this case. It is in the light of this that I resolve this issue in favour of the defendants. Consequent upon which I find that claimant’s relief one fails as his summary dismissal is not unlawful.
On Relief 2 of the claimant seeking for an Order of Certiorari directing the defendants to bring the proceedings of the “the Disciplinary Panel on Mr. Idowu Aanu “before which he appeared for “interrogation” or trial (which is not admitted) before this Court for quashing, it is the argument of learned defence counsel as regards this issue that this Court cannot grant an order of certiorari in view of the fact that the appropriate application and the materials required for the grant of same as provided under Order 48 Rules 3 and 5 of the National Industrial Court (Civil Procedure) Rules 2017 are not before this Court, he continued that such reliefs can only be brought by way of originating Summons, Originating Motion or Judicial Review in accordance with the Rules of this Court, that this case was commenced by a Writ of Summons and/or General form of Complaint together with a Statement of Facts which therefore brings the claimant’s case outside the purview of the order of certiorari. Counsel submitted that the proceedings by way of certiorari are proceedings for the issue of prerogative writ which are both proceedings between a claimant and a defendant as it is in the instant case, he relied on the cases of Adedeji Oduwale v. Hon, Justice B.A. Famakinwa&5Ors [1990] 4 NWLT [Pt 143] 239 @250, Medical and Health Workers Union of Nigeria [MHWUN) v. Hon. Minister of Labour and Productivity &2 Ors [2005] 28 WRN. P. 127 @PP [158-159] Lines 40-20 and [P.159] 30-45. Learned Claimant counsel on the other submitted that judicial powers are not vested in the investigating panel establishing or constituted by an employer, therefore any purported exercise of judicial powers by such a panel is a denial of the right of fair hearing under section 36(1) and (4) of the 1999 Constitution, Dangote v. Civil Service, Plateau State [2001] 4.S.C (Part II), he urged the Court to hold that the dismissal of the claimant from the employment of the 1st defendant is unlawful.
The Black’s law Dictionary, 8th Edition by Bryan A Garners, page 241-242 defines Certiorari as, “an extraordinary writ issued by an appellate Court, at its discretion, directing a lower Court to deliver the record in the case for review…” (And further explains it as) “The established method by which the Court of Kings Bench from the earliest time exercised superintendence over the due observance of their limitations by inferior courts, checks the usurpation of jurisdiction, and maintained the supremacy of the royal Courts. Undoubtedly, the proposition that certiorari lies only to quash judicial or quasi-judicial acts remains true till date. Indeed, its scope extends to all authorities or bodies exercising judicial or quasi-judicial power, see the cases of Head of the Federal Military Government and C-in-C v. The Military Government Mid-Western State of Nigeria &Anor. Ex-parte Ambrose I, Obiyan [1972] 12 S,C 23, Ali v. Jayratne [1951]A.C 66, Nebedum v. Labisi [2001] 1 NWLR (PT 693) pg. 94) para F-G. The Order of Certiorari lies before a Court with the jurisdiction equivalent to the High Court for the purpose of quashing any judgment, order, conviction or other proceedings of such inferior Court or body, civil or Criminal, made without or in excess of jurisdiction or in denial of fair hearing, see the cases of Oduwale v. Famakinwa [1990] 4 NWLR (Part143), 239, Lagos State Judicial Service Commission v. Katto [2008] ALL FWLR (Pt. 418) 327, Judicial Service Commission of Cross River State v. Young [2013] 11 NWLR (Part 1364).
It is trite that the order of certiorari is a remedy of a very special character and only lies to quash judicial acts. Certiorari will not lie where the body was not acting in a judicial or quasi-judicial capacity. It does not lie to quash a mere ministerial, administrative or executive act. See the case of Lagos State, J.S.C v. Kaffo [2008] All FWLR (Pt. 418) at 329, p. 343, Paras B-C (CA), Amaka v. Lieutenant Governor, Western Region [1956] SC NLR 122, Nwaoboshi v. Military Administrator, Delta State [2003] FWLR (Pt.166) 587. In the instant case, the decision by the 1st and 2nd defendants that the claimant’s employment be dismissed based on the Report of the Investigating Panel (Exhibit PO) was an Administrative Act, therefore this Court cannot grant the claimant’s prayer to quash the decision by the order of certiorari. Also, as rightly argued by the defence, this type of prayers can only be made by a party in compliance with the rules of Court. Specifically,, Order 48 Rules 3 and 5 of the rules of this Court 2017. It must be by way of an originating process and must be filed within three months of the occurrence of the subject of the application. It’s a separate suit that has its own rules to be followed and complied with. I find all these requirement absent in this instance. It is therefore, without hesitation that I find and hold that claimant has failed to comply with the rules of this Court with regards to the issue of certiorari. It is thus bound to fail and hereby dismissed for being frivolous.
Regarding relief three, having held supra that the claimant’s employment was dismissed lawfully, is claimant entitled to be reinstated back to the 1st defendant in the circumstances? It is settled that in a statutory employment where the process of disengagement is adhered to, the employee is not entitled to be reinstated. Claimant’s claim for reinstatement cannot therefore be granted in view of his dismissal that is upheld by the Court. It is consequent upon this that I find that the claimant’s claim for reinstatement is refused and accordingly dismissed. I so hold.
It is the claimant’s contention that he is entitled to the payment of backlog of his salaries and promotion, I have held that the dismissal of the claimant is lawful. By clause 12 (vii) and (viii) of the regulation guiding his employment a dismissed staff is not entitle to salary or any payment. It then goes without saying that his prayer for payment of salaries and entitlement should also fail. Accordingly, claimant’s claim for salaries and entitlement fails. I so hold.
On the alternative reliefs of the claimant, it is trite law that alternative reliefs would only be granted when it is impracticable to award the items sought in the main reliefs, See the case of G.K.F Investment Nig. Ltd v. Nitel Plc [2009] 15 NWLR (part 1184) page 344, Holborn Nigeria Ltd v. O.C Chris Enterprises Ltd [2014] LPELR-23972 (CA). Having considered the claimant’s main relief, there is however no need to discuss the alternative as to venture into same will amount to frivolities. I also, observed that the prayers in the main have taken care of the alternative reliefs sought, for they are similar in context. They are also seeking the favour of Court to declare his dismissal unlawful. That I have considered in the main claims. It is in the light of this that I find it imperative to discountenance the alternative prayers. I so find and hold.
In conclusion, it is evident from all stated above that the claimant’s claims fail in its entirety. It is therefore dismissed for lacking in merit.
No order as to cost
Judgment is accordingly entered.
Hon. Justice Oyebiola Oyejoju Oyewumi
Presiding Judge
