Mrs. Fati Al-hassan -VS- Abubakar Tafawa Balewa University Bauchi

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BAUCHI JUDICIAL DIVISION

HOLDEN AT BAUCHI

BEFORE HIS LORDSHIP HON. JUSTICE K.I. AMADI

DATED: NOVEMBER 21, 2019 SUIT NO NICN/BAU/04/2017

BETWEEN:

MRS FATI ALHASSAN ————- CLAIMANT

AND

ABUBAKAR TAFAWA BALEWA UNIVERSITY (ATBU)
THE GOVERNMENT COUNCIL

ABUBAKAR TAFAWA BALEWA UNIVERSITY BAUCHI —DEFENDANTS

THE VICE CHANCELLOR

ABUBAKAR TAFAWA BALEWA UNIVERSITY BAUCHI

THE REGISTRAR ABUBAKAR TAFAWA BALEWA

UNIVERSITY BAUCHI

REPRESENTATION

A.Y. Musa Esq with Linda Bala for the Claimant

Ahmed A. Accanny Esq for the Defendant.

JUDGMENT

INTRODUCTION

The Claimant commenced this case by an Originating Summons dated 29th March, 2017 and filed 30^th March 2017 raising the following 4(four) questions:

Whether the claimant has committed any act of gross misconduct to warrant the punishment of termination of her appointment as a Chief House Keeper of the 1^st defendant vide the letter of 09/01/17 against the backdrop of Chapter 3(b)(ii) of the Abubakar Tafawa Balewa University Bauchi Regulations Governing the Conditions of Service of Senior Staff and the Federal Civil Service Rules made pursuant to the 1999 Constitution (as amended).
Whether the claimant’s employment is covered with Statutory Flavour?

Whether the procedure for the removal of an alleged erring staff was strictly followed by the defendants in removing the claimant from office?

Whether in the circumstances of this case, the claimant’s termination is lawful?

The Claimant claimed against the defendants as follows:

An Order setting aside the purported letter of termination addressed to the claimant referred A.T.B.U./REG/55/PER/246 and dated as aforesaid.
An Order compelling the defendants to re-instate the claimant forthwith and restore the claimant to her position on the 1^st defendant and to pay or extend to her, all salaries, allowances, promotions, benefits and perquisites accruing thereto from January, 2017 until judgment and thereafter.
An Order of Injunction (sic) restraining the defendants from taking any steps in furtherance of the purported termination of the claimant’s appointment as a staff of the 1^st defendant or at all.
General damages of N2, 500,000.00.
Cost of the action.

The 1^st – 4^th Defendants filed a joint Counter Affidavit and Written Address in opposition to the Originating Summons dated 5^th May 2017 and filed 8^th May 2017 and later filed an Amended Counter Affidavit dated and filed 29^th January 2019.

FACTS OF THE CASE:

The facts of this case from the Claimant are as follows:

That she was employed by the 1^st Defendant in 1997 as a House Keeper and eventually rose to the position of Chief House Keeper. That she was never found wanting and thus had never been warned orally or in writing as a staff of the 1^st Defendant till the date she was served with a letter terminating her employment with the 1st defendant. That she collected N39, 000.00 (Thirty-Nine Thousand Naira) from two students for safe keeping when the two students were unable to pay for accommodation due to closure of payment for same by the 1^st Defendant. That she was first invited by the Security Personnel of the 1^st Defendant and in the presence of the two students, she was asked whether or not she had any dealings with them earlier and she answered that the only dealing she had with the students was that they gave her N39, 000.00 (Thirty Nine Thousand Naira) which they said was for their accommodation fee for safe keeping. That the defendants thereafter set up an investigation panel to determine whether a prima facie case was established against her. That the committee intimidated and indicted her. That the composition of the committee was against the provision of the conditions of service in that the chairman of her Union was excluded from its membership. That the Respondents acted on the report of the said Investigating Panel and terminated her appointment.

The Respondents on the other hand, admitted that the employment of the client was tinted with statutory flavour and presented the facts of this case thus: that owing to allegations of certain malpractices on hostel accommodation by a task force set up by the 1^st defendant, a prima facie committee was set up to investigate the allegations. That the claimant who was indicted by the task force was invited and appeared before the Prima Facie Committee, wherein she not only admitted her culpability in the malpractices but also pleaded for leniency. Subsequent to the above, a Senior Staff Disciplinary Committee was set up to consider the report of the Prima Facie Committee and submit its recommendations to the Vice Chancellor which committee based on the prima facie report found the claimant guilty of three (3) offences and recommended termination of her appointment. Based on the above, the claimant’s appointment with the 1^st defendant was terminated.

ADDRESS OF THE CLAIMANT:

In his written address the learned counsel for the Claimant adopted the four issues formulated in the originating process for determination to wit:

Whether the Claimant has committed any act of gross misconduct to warrant the punishment of termination of her appointment as a Chief House Keeper of the 1^st defendant vide the letter of 09/01/17 against the backdrop of Chapter 3(b) (ii) of the Abubakar Tafawa Balewa University Bauchi Regulations Governing the Conditions of Service of Senior Staff and the Federal Civil Service Rules made pursuant to the 1999 Constitution (as amended).
Whether the Claimant’s employment is covered with Statutory Flavour?
Whether the procedure for the removal of an alleged erring staff was strictly followed by the defendants in removing the claimant from office?
Whether in the circumstances of this case, the claimant’s termination is lawful?

In arguing issue one; Counsel submitted that the answer to the above poser is in the negative to wit; no. That the claimant has not committed any act of gross misconduct to warrant punishment of termination of her appointment by the defendants.

Counsel submitted that what amounts to misconduct was adequately defined under chapter (CAP) 3 (c) (i) (ii) and (iii) of the Abubakar Tafawa Balewa University’s Regulation governing the conditions of service of senior staff 2012 herein to be referred as simply, condition of service. Thus:

CAP 3(C)

“Misconduct is defined as an act of serious wrong doing and includes

(i) Willful act of omission/commission or prejudicial of discipline and proper administration of the University, and without prejudice to the generality of this definition includes, corruption, dishonesty, drunkenness at work, false claims against the University, insubordination, negligible, falsification of records and failure to keep records or suppression of records, fighting, unruly behavior, embezzlement, membership of secrete society, false claims against the University, insolence, fraud, conviction on a criminal offence, absence without leave from place of work without satisfactory excuse, indecent relationship with students, negligence deemed by an auditor to have been the occasion of a loss of funds to the University, disobedience of an order to proceed on leave or to accept a positive or of any other lawful order issued by the University management, the Vice Chancellor and the Registrar.

(ii) Absence without official leave.

(iii) Conviction for a criminal offence (other than the minor traffic or sanitation offence or the like); cases where there is doubt shall be referred to the Legal Unit for clarification .

Counsel submitted that from the entire definition of misconduct above quoted vis-à-vis the claimant’s act of accepting money from students for safe keeping at the request of the students, no misconduct, talk less of a gross misconduct was committed by her to warrant her removal from work as the defendants did. That the act of the defendants in terminating the claimant’s employment is therefore against the provisions of the terms governing the employment of the plaintiff and therefore ineffectual, void and of no legal stance. Counsel urged the Honourable Court to so hold and to set aside the termination of the claimant’s employment and order the defendants to reinstate the claimant forthwith and to resolve this issue in claimant’s favor.

In arguing issues two and three counsel submitted that the claimant’s employment is covered with statutory flavor and that the procedure for removing an alleged erring staff was not strictly followed in removing the claimant by the defendants.

That the entire chapter 3 of the conditions of service applicable to the parties here covers issues inter alia as to procedure for discipline of staff if the need arise. That a staff who is alleged to have committed any infraction must be told what infraction it is which must be covered by the infractions contained in the conditions of service as well as the fact that the punishment to be meted on the erring staff must be in accord with the provision of the conditions of service. That any derogation therefore will nullify the punishment meted especially if the infraction is fundamental.

Continuing counsel submitted that by the express wording of Chapter 3 (b) (i) – (v) of the conditions of service, it is inter alia provided that an Investigation Panel be set up by the Vice Chancellor or the Senate so as to determine whether or not a prima facie case has been established against the staff.

That, it is a condition precedent that the investigation panel shall include the president or the chairman of the staff. In this case, the Chairman of senior staff association of University (SSANU) to which the claimant belongs, in the person of Mr. Austin Jadi who was not amongst the panelist that “investigated” the claimant.

That closely associated with the above is the provision of CAP 3(1) of the Condition of Service which states thus:

“In order to avoid witch –hunting or abuse of office by supervisors all offence shall be investigated by panels of investigation before taking appropriate action”

Counsel submitted that the above provision gives credence to why the inclusion of the Chairman or President of the union which the staff being investigated belongs. That the failure by the defendants to include the chairman of the claimant’s union in the investigating panel as required is very fatal and smacks of willful intention by the defendants to deprive the claimant of her employment albeit unjustifiable and thus the need for this Honorable Court to intervene and correct the apparent wrong perpetrated against the claimant by the defendants.

Apart from the foregoing, Counsel submitted that, the provisions of CAP 3(ix) of the Condition of Service with emphasis on CAP 3(ix) (a)(b)(c) thereof were not followed. That the said provision states thus:

“If it appears to the Governing Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the university, other than the Vice Chancellor, shall be removed from the office or employment or on the grounds of misconduct or inability to perform the functions of his her office, or employment, the Governing Council shall:

a)Give notice of those reasons to the persons concerned
b)Afford him or her an opportunity of making representations on the matter to the Governing Council; and
c) If he/her so requests or any three (3) members of the Governing Council so request, within the period of one Month, beginning with the date of the notice, make arrangements:
For the matter to be investigated by the Disciplinary and Appeals Committee and to report on it to the Governing Council:
For the person in question to be afforded an opportunity of appearing before the Disciplinary and Appeals Committee with respect to the matter: and

iii. If the Governing Council, after considering the report of the Appeals Disciplinary Committee is satisfied that the person in question shall be removed as aforesaid, the Governing Council may so remove him/her by an instrument in writing signed at the directives of the Governing Council”

Counsel submitted that the defendants deliberately and in fragrant disrespect to the condition of service derogated from the salient condition afore quoted and in consequence rendered void the act of terminating the claimant’s employment by their act of removal. Counsel urged this Honourable court to resolve this issue in the claimant’s favour.

In arguing issue four, that is whether in the circumstances of this case, the claimant’s termination of appointment was lawful or justified, counsel submitted that it can at best be answered in the negative that is to say that the claimant’s termination of appointment was not lawful or justified. That a thing done lawfully is that done in accordance with the dictates of the procedure which states how the thing is to be done. That in this case the termination of the claimant’s appointment in order for it to be lawful, must be in accordance with the entire provisions of the procedural laws as contained in the Condition of Service with particular emphasis on chapter 3.

In conclusion, counsel submitted that based on the above submission, it is clear that the claimant’s appointment was unlawfully terminated and therefore ought to be set aside and the claimant reinstated as well as granting all other reliefs including the cost of this suit.

ADDRESS OF THE RESPONDENTS:

In his written address the learned counsel for the Respondents adopted all the issues formulated in the originating process for determination.

In arguing issues one, two and three, counsel referred the Honourable Court to Cap 3(c) Abubakar Tafawa Balewa University Bauchi Regulation Governing the Condition of Service of Senior Staff of the 1^st defendant 2012 which defined misconduct.

Counsel further referred the Honourable Court to the report of the Prima Facie Committee dated 5/8/16, page 12 paragraphs 2.2.8 thereof wherein the claimant admitted that she collected money from students for accommodation and that she had been involved in such deals and pleaded for leniency. Counsel submitted that any fact admitted need no further proof referring to the case of Akosie v Adeyeye (2011) 17 NWLR (Pt. 1276) 263 at 269 r. 5 and Ibadan L.G.P.C. Ltd v Okunade (2005) 3 NWLR (Pt. 911) 45. That the Respondents do not need to prove that she was guilty of misconduct as she has already admitted same.

Continuing counsel submitted that they are not unmindful of the claimant’s deposition in paragraphs 7 – 10 of the affidavit in support of the Originating Summons to the effect that she merely admitted keeping money for the students. That in view of Exhibit “1” (Report of the Prima facie committee), her testimonies cannot stand. Counsel referred to the cases of See Ezemba v Ibeneme (2004) 14 NWLR (Pt. 894) 617 at 624 r. 8 and F.A.T.B. Ltd v Partership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) 35 at 45 ratio 12.

Counsel submitted that they are equally not unmindful of the provision of Chapter 3 (b)(ii) of the Regulations Governing the Condition of Service of Senior Staff of the 1^st defendant 2012 which stipulate that the president of the claimant shall be included in the panel investigating the claimant.

That despite the absence of the president of the claimant in the investigating panel the above provision has been materially complied with. To that extent it cannot be the basis of the court setting aside or nullifying the proceedings of the panel. Counsel referred to the case of Alhassan v A.B.U. Zaria (2011) 11 NWLR (Pt. 1259) 417 at 433 ratio12.

Counsel further submitted that in view of the clear admission of her guilt, the defendants have complied materially with the conditions of service before terminating her appointment. Counsel further referred the Honourable court to the case of University of Calabar v Essien (1996) 44 LRCN 2280 at 2288 – 2289 ratio 14 where the Supreme Court of Nigeria, Per Iguh, J.S.C. held as follows:

“Where an employer dismisses or terminates the appointment of an employee on ground of misconduct, all that the employer needs establish to justify his action is to show that the allegation was disclosed to the employee, that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation”

Continuing further also, counsel argued that the claimant is not claiming that she was not given a fair hearing. On the contrary, the evidence adduced by the claimant clearly shows that she was given a fair hearing before terminating her appointment.

Counsel submitted that the claimant has no basis for approaching the Honourable Court with unclean hands and expecting the Court to clean her hands and equally feed her. That he who seeks equity must come with clean hands.

Counsel conceded that the claimant’s employment with the 1^st defendant enjoys a statutory flavour. But submitted that the defendants have complied materially with the procedure for terminating the claimant’s employment. Counsel urged the Honourable Court to resolve these issues against the claimant.

In arguing issue four, whether in the circumstances of this case, the claimant’s termination is lawful. Counsel submitted that the defendants having materially complied with the conditions of service in terminating the claimant’s appointment and there being no allegation of breach of right to fair hearing, the claimant’s appointment based on the allegations she admitted herself was lawfully terminated.

In conclusion counsel submitted thus:

That the claimant’s employment enjoys statutory flavour.
That the claimant’s employment with the 1^st defendant was terminated in compliance with the conditions of service of the 1^st defendant, the plaintiff having appeared before the panel and admitted committing the allegations leveled against her.
That the defendants have the right to terminate the claimant’s employment.
That the claimant is not entitled to any of the reliefs claimed.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the affidavit evidence presented by them. I have to state here that the proper method of commencement of a suit challenging the termination of employment of a claimant where the facts are likely to be in dispute as in this court is usually by a writ of Form of general complaint and not by an originating summons. See Theophilus Doherty v. Richard Doherty (1964) NMLR 241; (1964) LLR 226; (1964) 1 All NLR 299 and National Bank of Nigeria v. Ayodele Alakija (1978) 2 LRN 78; (1978) 9 and 10 S.C. 59. The procedure of originating summons is the appropriate one to be used in a case; where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary. See Joseph Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) at page 471; (1986) 2 NSCC (Pt. 11) 449.

However, this Court by section 12 of the National Industrial Court (NIC) Act 2006 is not expected to be inflexible and hence bound by formality. Also, section 14 of the National Industrial Court (NIC) Act 2006 grants the court the power to do all that can be done to avoid multiplicity of suits. Furthermore, in view of the fact that the parties in the various affidavit evidence in this matter agreed in the critical facts germane to the determination of this suit, I shall proceed to answer the questions raised in this case and finally determine the suit as commenced.

For the sake of clarity and at the risk of repetition some of the facts agreed by the parties are hereunder reproduced:

That the claimant was employed by the 1^stdefendant as a House Keeper in 1997 and eventually rose to the position of Chief House Keeper when the cause of action arose in this case.
That the employment of the claimant is clothed with a statutory flavor.

3.Upon allegations of malpractices on hostel accommodation, the 1^st defendant set up a panel of Investigation to determine whether a prima facie case has been established against the claimant.

That by the provision of Chapter 3 (b) (ii) – (v) of the conditions of service, it isprovided that the Investigation Panel to be set up by the Vice Chancellor or the Senate to determine whether or not a prima facie case has been established “shall be composed to ensure that membership include the President or chairman of the Union to which the staff being investigated belongs.

5.That the president or the chairman of the staff in this case, the Chairman of Senior Staff Association of University (SSANU) to which the claimant belongs, was not amongst the panelist that “investigated” the claimant.

The exclusion or non-inclusion of the chairman of president or the chairman of the Union to which the claimant in this case belongs, from the panelist that “investigated” the claimant is the major crux of this case.

7.That a Senior Staff Disciplinary Committee was set up to consider the report of the Prima Facie Committee and submit its recommendations to the Vice Chancellor which committee based on the prima facie report found the claimant guilty of three (3) offences and recommended termination of her appointment.

8.That based on the above, the claimant’s appointment with the 1^st defendant was terminated.

Having restated the agreed facts, I shall now proceed with answering the questions raised in this case. The first question shall be answered last.

The second question is; whether the claimant’s employment is covered with Statutory Flavour? I have stated above that the parties agreed that the employment of the claimant is one under statutory flavor. It is settled that admitted facts need no further proof. See Akosie v Adeyeye (supra) and Ibadan L.G.P.C. Ltd v Okunade (supra). Consequently this question is answered positively that is to say that the employment of the claimant is covered with Statutory Flavour.

The third and fourth questions shall be taken together, while question three question is; whether the procedure for the removal of an alleged erring staff was strictly followed by the defendants in removing the claimant from office? Question four is; whether in the circumstances of this case, the claimant’s termination is lawful?

The learned counsel for the claimant had argued that the failure by the Respondents to include the chairman of the claimant’s union in the panel that investigated the claimant is very fatal and smacks of willful intention by the defendants to deprive the claimant of her employment albeit unjustifiably and thus the need for this Honorable Court to intervene.

Furthermore, counsel submitted that contrary to the provision of 3(ix) 3(ix)(a)(b)(c) of the condition of service the claimant was neither given notice of the reasons for his termination nor afforded an opportunity of making representations on the matter to the Governing Council before her termination. The learned counsel submitted that the procedure stated for removing a staff of the first Respondent was not complied with in this case.

The learned counsel for the Respondents on the other hand submitted that they are “not unmindful of the provision of Cap 3 (b)(ii) of the Regulations Governing the Condition of Service of Senior Staff of the 1^st defendant 2012 which stipulate that the president of the claimant shall be included in the panel investigating the claimant. That despite the absence of the president of the claimant’s union in the investigation panel the above provision has been materially complied with. To that extent it cannot be the basis of the court setting aside or nullifying the proceedings of the panel.

I have stated above that the parties agreed that the employment of the claimant is one clothed with statutory flavor. The method of terminating an employment clothed with statutory flavor has long been settled in a long line of cases. In the case of University of Ilorin v. Abe (2003) FWLR (Pt. 164) 267 at 278, the Court held that:

“It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.”

The above was followed in the case of New Nigeria Newspapers Ltd v. Atoyebi (2013) LPELR-21489 (CA) where it was held thus:

“In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”

It is important to state that where the provision of a statute is garbed with the word “shall” it connotes that it is imperative that the provision be obeyed. This is so because the word “shall” is a word of command. It imposes a duty and makes the provision mandatory, citing Corporate Idea Ins. Ltd v. Ajaokuta Steel Co. Ltd [2014] 7 NWLR (Pt. 1405) 165 SC.

From the foregoing, it is not difficult to find that the Respondents in this matter did not strictly follow the procedure as prescribed by the conditions of service of the 1^st Respondent in removing the claimant from office. Consequently, the claimant’s termination is unlawful, I so find and answer both questions.

I shall now treat question one, which is; whether the claimant has committed any act of gross misconduct to warrant the punishment of termination of her appointment as a Chief House Keeper of the 1^st defendant vide the letter of 09/01/17 against the backdrop of Chapter 3(b)(ii) of the Abubakar Tafawa Balewa University Bauchi Regulations Governing the Conditions of Service of Senior Staff and the Federal Civil Service Rules made pursuant to the 1999 Constitution (as amended). I have held that the procedure stated for the investigation and removal of the claimant was not followed as provided by the conditions of service of the 1^st Respondent, a finding of guilt can only be handed after a through investigation as stipulated by the said condition of service, it is now ambiguous and doubtful whether the claimant was indeed guilty of gross misconduct as alleged. In interpreting contracts of employment, ambiguity must be resolved in favor of that which gives the employee an advantage. See James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016. Consequently, I answer this question in the negative that is that the claimant cannot be said too be guilty of the alleged allegation of committing an act of gross misconduct.

I shall now deal with the claims, from the answers to the questions above I hold that claims one and three have succeeded and the purported letter of termination addressed to the claimant with reference no; A.T.B.U./REG/55/PER/246 and dated 30^th December,2016 is hereby set aside.

In respect of claim two it is trite that in an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization, any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs, the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. The claimant is therefore entitled to an order of this Honourable court to re-instating and restoring to her position as a Chief House Keeper on the 1^st defendant’s employment and to pay or extend to her, all salaries, and allowances, benefits and perquisites accruing thereto from January, 2017 to date and thereafter.

In respect of claim four, having reinstated the claimant back into her employment with full payment of her salaries and allowances, this claim is hereby refused.

In all, I make the following orders:

The purported termination of the employment of the claimant from his employment with the 1^stRespondent is hereby set aside.
The claimant is hereby reinstated into her employment as a Chief house keeper.

3The Respondents shall pay the claimant/ applicant all salaries, allowances and other benefits from January 2017 till date and thereafter pay her until she retires or her employment properly terminated.

4.The Respondents shall pay the sum of N100,000 being the cost of this suit. The defendants shall pay all monetary awards in this judgment within 30 days from the date of this judgment failing which they shall attract 10% interest per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

(Judge)