IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MAY 20, 2019 SUIT NO. NICN/LA/256/2013
BETWEEN
Mr Ayorinde Obasa – Claimant
AND
1. Federal Ministry of Power, Works and Housing
2. Federal Civil Service Commission
3. Attorney General of the Federation – Defendants
REPRESENTATION
Temitayo E. Olowookere, for the claimant.
A. Isah, for the 2nd defendant.
Akin Apara, with Temitayo Ogundare, for the 3rd defendant.
No legal representation for the 1st defendant.
JUDGMENT
INTRODUCTION
1. The claimant had commenced this action on 17th May 2013 vide an originating summons against 5 named defendants. By order of Court made on 25th February 2015, leave was granted the claimant to convert the originating summons to a complaint and amend the originating summons and its accompanying processes as per the proposed complaint, statement of facts, list of witnesses and list of documents to be relied on; and the names of the 2nd and 4th defendants were stuck out leaving the 3 defendants presently on record. By the amended complaint and statement of facts, the claimant is praying for the following reliefs:
(a) An order declaring the interdiction and subsequent dismissal of the claimant by the 1st and 2nd defendants as unlawful and without due (sic) to their failure in following due process according to Civil Service Rule.
(b) An order setting aside the decision of the 2nd defendant acting on the recommendation of the investigative Panel set up by the 1st defendant and reinstating the claimant to his position as Assistant Director of Lands.
(c) An order further to preceding prayer directing the 1st and 2nd defendants to restore all the appurtenances of the claimant’s office to him including numerous promotions that he (sic) is due to him forthwith but denied because of the obscenely duplicitous decision of the 1st and 2nd defendants against him.
(d) An order directing the 1st and 2nd defendants to pay the following:
(i) The sum of N3,663,571 as special damages to the claimant, particulars of which are highlighted below:
(1) The sum of N982,641.00 which is the salary he is entitled to during the period of interdiction from May 2012 – March 2013 at the rate of N89,331.00 per month.
(2) The sum of 2,679,930.00 being the salary the claimant is entitled to during the period of his dismissal till date from April 2013 – July 2014 at the rate of N178,662.00 per month.
(3) The sum of N178,662.00 per month from August 2014 till judgment is given in this suit.
(ii) The sum of N5 million as general damages for the trauma and the inconveniences suffered during the course of the claimant’s dismissal.
(iii) Other emoluments due to the claimant which includes bonuses, leave allowances, pension deductions and contributions, etc.
(e) An order directing the 1st defendant to pay all outstanding salaries, and emoluments due to the applicant.
(f) An order of perpetual injunction against all the defendants from victimizing and/or harassing or taking steps to frustrate the claimant out of the Federal Civil Service upon his reinstatement thereof.
2. The 2nd defendant, but not the 1st and 3rd defendants, reacted by filing a statement of defence, witness statement on oath, list of documents and copies of the documents. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C29. For the 2nd defendant, Mr Gana J. Jacob, CEO, Discipline and Appeals Department of the 2nd defendant, testified as 2nd defendant’s witness and tendered Annexure 1 to Annexure 6. Parties were asked to save any objection they may have as to the admissibility and/or evidential value of any of the tendered documents for the final written addresses. At the conclusion of trial, the 2nd defendant filed its final written address on 25th January 2019, while the claimant filed his on 6th May 2019. The 2nd defendant did not file any reply on points of law. The 1st and 3rd defendants did not file any written address.
THE CASE BEFORE THE COURT
3. The claimant was in the employment of the 1st defendant, having been recruited on 22nd May 1991 as a Land Officer on GL 08 by the 2nd defendant, the 2nd defendant also responsible for his wrongful dismissal on the recommendation of the 1st defendant. His appointment was subsequently confirmed and was variously promoted, rising through the ranks to the post of Assistant Director on GL 15 with effect from 1st January 2011. On 26th August 2011, he received a query dated 25th August 2011 wherein he was accused of using his position to usurp a piece of land allegedly allocated to one Mr Emake Mgbeanuri by the claimant. He was also alleged in the query to have arbitrarily demolished Mr Mgbeanuri’s structure on land and that he had been in the habit of doing that. That the query was a product of the malicious and spurious allegations of fraud and nepotism in a petition written to the Presidency by Mr Emeka Mgbeanuri through his lawyer. That a letter from the Presidency accordingly asked for appropriate action. In reaction to the letter, the 1st defendant set up a disciplinary panel to look into the allegations in the petition, which led to a query being issued to the claimant. The claimant responded to the query. To the claimant, his wife (Mrs Olayinka Obasa) and Mrs Abimbola A. Longe had applied and were allocated the parcels of land the petitioner said he bought from the Oroja Family in 2008. That the letters of allocation were signed by Mr Ike Odoe, the then Secretary of the Land Use Allocation Committee, Federal Ministry of Works and Housing, Lagos (now the 1st defendant), not the claimant, who was at the time of the allocation a GL 09 officer and so could not have had the clout to or power to allocate land to his wife.
4. The claimant went on that the Petitioner indicated that he bought the land in 2008 from the same Oroja family that the Federal Government acquired the land form in 1976 and had been sufficiently compensated thus making the petitioner a trespasser. That despite his response to the query, and an investigation by a panel’s sitting of the Director of Lands and Housing of the 1st defendant, the report of which dated 1/02/2012 held that the claimant should not be interdicted, the defendant went ahead and interdicted him vide a letter dated 7/05/2012 and subsequently wrongfully dismissed him vide a letter dated 31/01/2013 but which he received on 19/02/2013, eight months after his appeal against the interdiction. That even the EFCC investigation into the matter revealed vide its report dated 29/04/2013 that there is no prima facie case of fraud against the claimant. That despite the report of the Economic and Financial Crimes Commission (EFCC) report, the defendants remained adamant in refusing to rescind his dismissal and reinstate him. Furthermore, that the petitioner filed two different suits at the Federal High Court, one on fundamental rights and the other on declaration of title to land. And in both suits, the counter-affidavit and pleadings of the 1st defendant adopted all the facts as presently averred to by the claimant in the instant case as true and correct. Accordingly, that the 1st and 2nd defendants are barred and estopped from holding the claimant culpable of all the spurious allegations of fraud leveled against him. That despite another appeal against his dismissal, the defendants remained adamant hence the instant suit.
5. The 2nd defendant’s response is that given the petition against he claimant, the Senior Staff Committee (SSC) of the claimant’s Ministry sat and recommended that the claimant should be dismissed as the claimant could not exculpate himself of the allegations made against him. The 2nd defendant considered the recommendation of the SSC against the claimant, agreed with the SSC recommendations and dismissed the claimant from service.
THE SUBMISSIONS OF THE 2ND DEFENDANT
6. The 2nd defendant submitted two issues for determination:
(1) Whether the claimant’s evidence are cogent enough as to tilt the scale of justice in his favor.
(2) Whether from the circumstances of the case, the doctrine of fair hearing was not observed in the processes leading to the dismissal of the claimant.
7. On issue (1), the 2nd defendant submitted that for the claimant to be entitled to judgment, he must prove his case on preponderance of evidence and on the strength of his own case, not on the weakness of the defendant’s case, as the burden of proof lies on him, citing section 136 of the Evidence Act and Ayeni v. Adeshina [2007] 7 NWLR (Pt. 1033) at 263-264. That from the evidence of the claimant and during cross-examination, the claimant admitted that he signed Annexure 1 (the letter of offer of lease Ref. No. E65/A/1574/Vol. 1/8). That if his evidence that he signed the offer letter in error is anything to go by, it means that the claimant committed a gross misconduct by signing the offer letter without the knowledge that the said land belonged to his wife. That the claimant exhibited Exhibits C15 and C16 showing that the land in dispute was allegedly allocated to Mrs Longe and Mrs Olayinka Obasa (his wife) sometime in 1993. That it is preposterous on the part of the claimant to sign out the same land which he alleged belonged to his wife to another person in 2008 without the knowledge that the land belonged to his wife. That Rule 030402(t) and (w) of the Public Service Rules (PSR) 2008 made the act of the claimant a gross misconduct, which is punishable with dismissal. Accordingly, that the claimant has failed to discharge the burden placed on him to prove his case against the 2nd defendant; as such, the reliefs he seeks cannot be awarded in his favour.
8. For issue (2), citing NJC v. Aladejana [2015] All FWLR (Pt. 772) 1798 at 1809, the 2nd defendant submitted that upon the receipt of Exhibit C6 (the petition against the claimant), the 2nd defendant wrote a letter to the claimant’s Ministry intimating it to look into the matter. The claimant’s office set up a three-man investigation panel to look into it. The panel met the claimant, who was allowed to state his case and to call witnesses, and indeed he called two witnesses whose evidence was not even in support of the claimant’s case. That upon receipt of the report of the panel, another window was given the claimant to further exculpate himself. A preliminary letter (Exhibit C5) was issued to him. The claimant responded through Exhibit C8. The SSC deliberated on the claimant’s response and saw that the claimant could not exculpate himself and a conclusion was reached that he be dismissed. That during cross-examination, the claimant made heart weather of the SSC not calling him to hear him or give him the opportunity of seeing the report of the investigation panel. That it is had been various decided that it is not in all cases that oral hearing is deployed to satisfy the doctrine of fair hearing, citing Eferakorho v. DSJSC [2015] 1184 ay 1187 (incomplete citation), NJC v. Aladejana (supra) and Sabiru v. AG, Ogun State [2008] All FWLR (Pt. 412) 1195; [2008] 33 NSCQR (Vol. 1) 1 at 25-26. The 2nd defendant then urged the Court to hold that the claimant was accorded fair hearing in the procedure that led to his dismissal.
9. The 2nd defendant went on that the claimant exhibited Exhibit C21, alleged to be a report of the EFCC exculpating the claimant of fraud. To the 2nd defendant, supposing without conceding that the EFCC report absolved the claimant of fraudulent act, it does not absolve him of administrative discipline for the embarrassment he brought to the establishment were he worked. That in the determination of disciplinary matters, if the SSC of the Ministry found the claimant culpable of the misconduct alleged against him, the claimant could be recommended for dismissal even if he has not been prosecuted, citing Rule 030411 of the PSR. That the PSR by this rule allows administrative disciplinary action against a civil servant for misconduct even if such misconduct is criminal in nature and even where criminal action is yet to commenced in the law court. That it follows that where an officer is absolved of criminal misconduct, such officer can be disciplined administratively if his action falls within conducts listed as misconduct or gross misconduct in the PSR. The 2nd defendant then urged the Court not to accord any evidential value to the alleged EFCC report; and that the report to be admissible had to be tendered by an official of the EFCC, not the claimant, citing N. E. Nigeria Ltd v. Ibafon Oil Ltd [2016] All FWLR (Pt. 815) 336-339 which enjoins the Court to expunge inadmissible evidence even where the opposing party did not oppose its admissibility. The 2nd defendant then urged the Court to hold that the claimant’s dismissal was in tandem with the PSR and in adherence with the doctrine of fair hearing; and to dismiss this suit as it is frivolous, gold-digging and academic.
THE SUBMISSIONS OF THE CLAIMANT
10. The claimant on his part submitted three issues for determination:
(1) Whether the evidence of the 2nd defendant witness and the exhibit marked as Annexure 4 are admissible in evidence.
(2) Whether the 1st and 2nd defendants were right in interdicting and dismissing the claimant from service.
(3) Whether the claimant is entitled to the reliefs sought.
11. On whether the testimony of Gana J. Jacob, the 2nd defendant’s witness, is admissible in evidence, the claimant submitted that the evidence of a statement made to a witness by a person who is not himself called as a witness is called hearsay, citing section 37 of the Evidence Act, Cross’ Evidence (6th Edition) at page 8 and Utteh v. State [1992] 2 SCNJ (Pt. 1) 183. That the evidence of the 2nd defendant’s witness is hearsay and, therefore, inadmissible, having stated under cross-examination thus: “all I have said as evidence were things related to me, not that I was there when they happened”. That the fact that he never participated in any of the investigative panels set to investigate the allegation against the claimant makes his testimony hearsay and so inadmissible.
12. On whether Annexure 4 is admissible in evidence, the claimant submitted that an unsigned document goes to no effect and value as it is worthless and so inadmissible, citing Momoh Rabiu Alfa v. Hon. (Alh) Abdullahi Zakare & 3 ors [2010] All FWLR (Pt. 515) 306, Garba v. Kwara Investment Co. Ltd [2005] All FWLR (Pt. 252) 478, Brewtech Nigeria Ltd v. Folageshin Alinnawo [2016]LPELR-40094(CA) Gbadamosi & anor v. Biala [2014] LPELR-24389(CA) and section 83 of the Evidence Act. That Annexure 4 is an unsigned document and the identity of the maker is unknown; some pages of the document were marked but the identity of the marker is unknown aside form the fact that some pages are missing. That the witness through whom the document was tendered did not say he is the marker of the said document. That given all of this, the said document is inadmissible and so no probative value should be attached to it as it is incomplete.
13. For issue (2) i.e. whether the case of misconduct was established against the claimant to warrant his dismissal, the claimant, citing Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599, Ogunke v. National Steel Development Authority [1974] NWLR 128 (wrong citation), Fakuade v. OAUTH [1993] 5 NWLR (Pt. 291) 47, Ideh v. University of Ilorin [1994] 3 NWLR (Pt. 330) 81, Shitta-Bay v. Public Service Commission [1981] 1 SC 40, Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303, Udo v. Cross River State Newspaper Corporation [2001] 14 NWLR (Pt. 732) 116 and Balogun v. University of Abuja [2002] 13 NWLR (Pt. 783) 42 at 53, submitted that his employment is statutory and he does not hold his employment at the pleasure of the Federal Government; As such, his employment can be terminated only in accordance with the relevant statute. That the crux of his case lies in the fact that he was unlawfully interdicted and dismissed from service for misconduct on the unproven case of abuse of office. The claimant at this point made an abrupt stop in terms of his submissions on issue (2); and of course, made no submissions as to his issue (3). In open court, I drew the attention of his counsel to these facts and all he could say was that it must be an omission.
14. The 2nd defendant did not file any reply on pints of law.
COURT’S DECISION
15. After a careful consideration of the processes filed and the submissions of the parties, the claimant seeks reinstatement, having been first interdicted and then dismissed by the defendants based on a petition that was written against him and investigated. The claimant had first urged this Court to discountenance the evidence of the 2nd defendant’s witness as well as Annexure 4. The 2nd defendant’s witness had under cross-examination stated that his evidence is based on the reports as were available to him. He would, however, later state that: “Yes, all I have said as evidence were things related to me, not that I was there when they happened”. To the claimant, this is hearsay. I agree with the claimant that it is. This means that not much weight can be even to the testimony of the 2nd defendant’s witness. I so find and hold.
16. Annexure 4 is minutes of meeting of the Federal Civil Service Commission held on 5th and 6th December 2012 and 16th and 17th January 2013 to consider discipline and appeal cases of 2012. It is an incomplete document and the signatory is unknown; and it is not certified as an extract. In Mr Akindele Adedipe v. Oracle Software Nigeria Limited unreported Suit No. NICN/LA/214/2016, the judgment of which was delivered on 15th May 2019, this Court at paragraph 24 reviewed its stance regarding the admissibility of incomplete documents in these words:
In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9th October 2018, this Court held thus regarding the issue of the admissibility of an incomplete document:
Exhibit C3 is actually an incomplete document. The claimant did not tender it as an extract, which would have required certification as such, to warrant it being used as such in this judgment. See Oluwole Olatunji Kolade v. The Industrial Training Fund Governing Council & anor unreported Suit No. NICN/LA/60/2015, the judgment of which was delivered on 14th June 2016. As an incomplete document, the authenticity of Exhibit C3 is in issue. In a similar scenario, this Court in Oyewumi Oyetayo v. Zenith Bank [2012] 29 NLLR (Pt. 84) 370 held inadmissible and of no evidential value an incomplete exhibit on the ground that the fact of being an incomplete document rendered “suspect its authenticity and probative value”. Also, in Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on July 22, 2013, this Court rejected incomplete documents and so discountenanced them, holding that they have no evidential value. See also Overland Airways Ltd v. Captain Raymond Jam [2015] 62 NLLR (Pt. 219) 525 and Mr. Godwin Agbone v. Nulec Industries Ltd unreported Suit No. NICN/LA/427/2012, the judgment of which was delivered on 2nd February 2015. In like manner, Exhibit C3 is hereby discountenanced for purposes of this judgment as it has no evidential value.
See further Adesoji Adedokun & 3 ors v. Peninsula Asset Management & Investment Company Limited & anor unreported Suit No. NICN/LA/285/2013, the judgment of which was delivered on 16th July 2018.
In like manner, Annexure 4 being an incomplete document, whose signatory is unknown and having not been certified as an extract, cannot be countenanced for purposes of this judgment as it has no evidential value. I so hold.
17. The claimant had been petitioned against by Mr Emeka Mgbeanuri. See Exhibits C6 and C7. By a letter dated 25th August 2011 (Exhibit C5), the claimant was queried and asked to respond within 48 hours why disciplinary action, which may include dismissal, should be taken against him for:
(i) usurping the land allocated to Mr Mgbeanuri;
(ii) arbitrarily demolishing Mr Mgbeanuri’s structure on the said land; and
(iii) being in the habit of tampering with lands allocated to members of the general public and fraudulently reselling same.
18. The claimant responded vide Exhibit C8 dated 5th September 2011. The gist of the claimant’s response is that his wife (Mrs Olayinka Obasa) and Mrs Abimbola A. Longe had applied and were allocated the parcels of land the petitioner said he bought from the Oroja Family in 2008. That the letters of allocation were signed by Mr Ike Odoe, the then Secretary of the Land Use Allocation Committee, Federal Ministry of Works and Housing, Lagos (now the 1st defendant), not the claimant, who was at the time of the allocation a GL 09 officer and so could not have had the clout or power to allocate land to his wife. That Mr Mgbeanuri indicated that he bought the land in 2008 from the same Oroja family that the Federal Government acquired the land from in 1976 and had been sufficiently compensated thus making the petitioner a trespasser. Mrs G. O. Ogbutor, Director Lands & Housing Development, looked into the matter and in her report dated 1st February 2011 (Exhibit C19, same as Annexure 2), she came to this conclusion at paragraph 2:
In my opinion, the objective conclusion that can be drawn from the totality of the information and presentations available in all the five (5) files is that Mr. Obasa did not usurp or fraudulently acquire the land of Mr. Emeka M. Anuri either by himself or through any other party, and therefore should not be interdicted.
She went on to give her reasons for arriving at this conclusion. The defendants were not swayed for vide Exhibit C20 dated 7th May 2012, the claimant’s conduct was held to be gross misconduct, which contravened Rule 030402(a) & (r) of the Public Service Rules (PSR). The claimant was accordingly interdicted and put on half salary in accordance with Rule 030404 of the PSR.
19. A three-man panel consisting of Mr A. A. Buhari (as Chairman), Mrs N. Kalu (representing Head of Admin, Lagos Office) and Mrs V. A. Dickson (as Member/Secretary) was set up to look into the allegations against the claimant. It visited Lagos (scene of case/event); heard from the petitioner and the claimant; and took verbal statements from two witnesses mentioned by the claimant. The claimant would, however, argue that he did not call these two witnesses. The report of this three-man pane is Annexure 6. In this report, the three-man panel found the claimant culpable in that: the claimant signed the offer of lease to Mr Mgbeanuri and his explanation that he did this in error held no water; the claimant had no approval from Headquarters to warrant demolishing of Mr Mgbeanuri’s structure; the two witnesses mentioned by the claimant contradicted the claimant’s position; and the claimant used bureaucratic maneuvers to revoke the offer to Mr Mgbeanuri and convert the plot title to the claimant’s wife. Incidentally, Annexure 6 as a report is not dated; and not signed by Mrs N. Kalu. As an undated document, it is worthless and so cannot be used by any court. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Annexure 6 will accordingly be discountenanced for purposes of this judgment. I so find and hold.
20. Annexure 3 is the minutes of the Senior Staff Committee (SSC) meeting of 9th February 2012. The SSC took the view that there was no doubt that the claimant issued and signed the offer of lease to Mr Mgbeanuri and that the claimant demolished the structures of Mr Mgbeanuri. Above all, the SSC held that it is of the opinion that the claimant’s claim that the land granted to Mr Mgbeanuri covered an earlier grant made to his wife shows that the claimant’s action was guided by extraneous personal interest. And that the claimant was supposed to have obtained approval form the Head Office for the demolition of the perceived illegal structures before carrying out the demolition, but he did not; as such, the claimant unilaterally effected the demolition of the said property without following laid down procedures. The SSC concluded that the claimant’s act amounted to gross misconduct which attracts dismissal from service. The SSC, however, recommended that the claimant should instead be retired on compassionate ground with effect from 9th February 2012 being the date of the SSC meeting where the decision was taken. The defendants did not accept the recommendation to retire the claimant on compassionate ground. As such, by Exhibit C17, the claimant was dismissed for usurping the land allocated to Mr Mgbeanuri and for arbitrarily demolishing the structure on the land duly allocated to him by the Ministry.
21. In his reliefs, the claimant claimed that the defendants did not follow due process. His final written address, like I pointed out earlier, is not helpful here for the claimant made no submissions in that regard. Under cross-examination, however, the claimant testified that: he was issued a query; he responded to the query; the Ministry set up a 3-man investigation panel, which he met; he did not call any witness – it was the panel that invited two witnesses; there were other witnesses that the panel ought to have called but it did not; he was not given the opportunity to call any witness; he did not know the evidence given by the two witnesses the panel called as he was not there when the two witnesses were interviewed; and he was not given a copy of the report of the panel. Can it be said that all of this amounts to absence, or denial, of due process?
22. Fair hearing today is about opportunity to be heard. Ziideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1, for instance, held that “it is now firmly settled that in statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee is given the opportunity of fair hearing”. So, once a Court makes a finding that the employee was given ample opportunity to defend himself/herself on the allegations in issue, then such an employee cannot complain of not being given fair hearing. See A. R. Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 508 CA at 527. The fair hearing requirement does not insist on oral testimonies so long as the employee had the opportunity to explain himself/herself by way of a query and reply. See Isong Udofia v. Industrial Training Governing Council [2001] 4 NWLR (Pt. 703) 281. His Lordship Wambai, JCA in Mr Syed Qamar Ahmed v. Ahmadu Bello University (ABU) & anor [2016] LPELR-40261(CA), referring to Ziideeh v. RSCSC (supra), put the matter thus:
…the Law no longer draws any distinction between an ordinary master-servant employment and an employment with statutory flavor with respect to the right of the employer to summarily dismiss an employee for acts of gross misconduct. YUSUF v. UBN LTD (1996) 6 NWLR (Pt.457) 632. It is now settled that an employer can summarily and without any much ado, dismiss an employee in all cases of gross-misconduct provided that the affected employee is given a fair hearing, whether the affected employee is in private employment or statutory employment…It is however not every wrong doing, mistake or misconduct on the part of the employee that entitles the employer to use the big whip of dismissal on the employee.
23. The common feature running through all these cases is that the exact nature of the infraction(s) which the employee is expected to answer to is disclosed to the employee. From the evidence before the Court, the claimant was given all the opportunity to be heard; as such, the claimant’s claim that due process was not followed is not sustainable. I so find and hold. Mrs G. O. Ogbutor, Director Lands & Housing Development, in Exhibit C19, same as Annexure 2, in her opinion, did not find the claimant to have usurped or fraudulently acquired the land of Mr Mgbeanuri either by himself or through any other party, and therefore should not be interdicted. Her opinion was based on her reading of all the available 5 files. The EFCC in Exhibit C21 dated 29th April 2013 held that it is of the “opinion that there is no prima facie case of fraud on the part of the suspect as such case is closed”. Exhibit C19/Annexure 2 and Exhibit C21 relied heavily on by the claimant, cannot, however, absolve him of the finding that he demolished structures on the land without approval from Head Office. His Lordship Wambai, JCA in Mr Syed Qamar Ahmed v. Ahmadu Bello University (ABU) & anor cautioned that “it is however not every wrong doing, mistake or misconduct on the part of the employee that entitles the employer to use the big whip of dismissal on the employee”. The SSC despite concluding that the claimant’s act amounted to gross misconduct, which attracts dismissal from service, however, recommended that the claimant should instead be retired on compassionate ground with effect from 9th February 2012 being the date of the SSC meeting where the decision was taken. I note Exhibits C22 and C26, wherein especially the then Federal Ministry of Lands, Housing and Urban Development represented facts that suggest the claimant not to have been fraudulent.
24. Since the fact of demolishing structures without approval form Head Office is the infraction of the claimant that is sustainable, I do not see it as sufficient to warrant the big stick of dismissal. The dismissal of the claimant shall accordingly be substituted with retirement as recommended by the SSC with effect from 6th December 2012, the date the dismissal was by Exhibit C17 said to take effect from. I so hold. In this sense, reliefs (a), (b), (c), (d)(ii) and (f) are not grantable as claimed. They are modified in terms of the claimant’s dismissal being substituted with retirement with effect from 6th December 2012, the claimant entitled only to his retirement benefits, if any.
25. All the other reliefs seek monetary sums and so are claims for special damages. As claims for special damages, they are not to be inferred or awarded because it appears that the defendant admitted them; they must be claimed specially and proved strictly with credible evidence and they must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). In Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court summarized what the claimant needs to do in order to succeed in a claim for special damages in these words:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
26. The particulars of special damages are to be supplied in the pleadings. It was the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 that said:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
I looked through the claimant’s pleadings and found no particulars for the claim for special damages. All he did in paragraph 30 of his pleadings is to state that he is entitled to his arrears of salaries, bonuses, leave allowances, balance of salaries for the period of interdiction, deductions and contributions and all the appurtenances of office including promotion. What are the specific particulars of all of this? The claimant did not plead. As His Lordship Tur, JCA puts it in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA), a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings. The claims for monetary sums by the claimant must fail and so are hereby dismissed.
27. On the whole, the claimant’s case succeeds only in terms of his dismissal being converted to retirement with effect from 6th December 2012. I so order.
28. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
