IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: MONDAY 1ST APRIL 2019
SUIT NO: NICN/LA/333/2017
BETWEEN:
MRS. OLUVBO ADENIKE IWEZE
CLAIMANT
AND
ATTORNEY GENERAL OF LAGOS STATE
LAGOS STATE CIVIL SERVICE COMMISSION
TEACHER’S ESTABLISHMENT & PENSIONS OFFICE
PERMANENT SECRETARY, MINISTRY OF EDUCATION
DEFENDANTS
Representation:
O V Iweze appears for Claimant, with A A Williams-Chukwu and TD Akindoyin.
H O Oyenuga(Director, Advisory Services, Lagos State Ministry of Justice) appears for Defendants, with FunsoOlodo(Assistant Director) and BamideleAdaramewa(Chief State Counsel).
JUDGMENT
⦁ This matter was commenced on 17th July 2017 by a General Form of Complaint taken out by the Claimant. It seeks the following reliefs:
⦁ A Declaration that the Dismissal of the Claimant by the 3rdDefendant from the Post Primary Teaching Service vide its Letter dated 31st March, 2017 with Ref: TEPO/ESTAB/GRP/2586/104 and captioned “Dismissal from Service”, is in violation of Section 36(1) of the 1999 Constitution as Amended and the Lagos State Public Service Rules (Revised 1st January, 2015) and as such invalid, null and void and of no effect whatsoever;
⦁ An Order of the Honourable Court setting aside the 3rdDefendant’s Letter dated 31st March, 2017 with Ref: TEPO/ESTAB/GRP/2586/104 and captioned “Dismissal from Service”;
⦁ A Declaration that the Claimant is still in lawful employment of the Post Primary Teaching Service of Lagos State since 31st March 2017;
⦁ An Order reinstating the Claimant to her Office and Position within the Post Primary Teaching Service of Lagos State and further restoring her to the position she would have been if the Letter dated 31st March, 2017 had not been served on her;
⦁ An Order of the Honourable Court directing the Defendants to pay all entitlements of the Claimant from the date of the purported dismissal (i.e. 31st March, 2017) till date; and
⦁ Cost of the Suit in the sum of Five Million Naira (N5,000,000.00).
2. The Defendants in response to the Claimant Statement of Facts filed a Statement of Defence dated 12th October, 2017 while the Claimant filed her Reply to Defendants’ Statement of Defenceon 6th November 2017.
3. Trial commenced on the 19th of April, 2018. Claimant called two witnesses in proof of her case; the Claimant herself and Kanayo Chukwunenye Okoye Esq. The Claimant as CW 1 adopted her Written Statement on Oath dated 17th of July, 2017 and was cross-examined. Through her, 51 exhibits were admitted and marked as Exhibits C1 – C51.On the 2nd of October 2018, Kanayo Chukwunenye Okoye testified as CW2. He adopted his Written Statement on Oath dated 17th July 2017 and was cross-examined.
4. The Defendants opened their case on the 30th of October, 2018 and called (3) three witnesses namely:
MrsAdebimpe Otunaike ————————–DW 1
Mrs Margaret Titilayo Silarin ——————–DW 2
Mr Mohammed Adesina Odeyemi ————– DW 3
4. Through these witnesses a number of documents were tendered and admitted as Exhibits D1-D9a&b. They were all cross-examined. Trial closed on that day and the Court ordered parties to file their final written addresses. The Final Written Addresses were adopted on the 6th February 2019, and the Court adjourned for judgment.
⦁ Fact of the Case:
The Claimant was a staff of the Ministry of Education having been employed via a letter dated 21 December 1983 and confirmed on 10 January 1986. The Claimant rose through the ranks to the post of Director, Salary Grade Level 17, with effect from 1 January 2011. On 6thApril 2017, the Claimant was given a Letter of dismissal dated 31 March 2017 dismissing her with immediate effect on the grounds of Insubordination to Constituted Authority. Claimant challenges this dismissal on the ground that her employment is covered by statutory flavour and as such, she can only be dismissed in line with the extant laws particularly the 1999 Constitution and the Lagos State Public Service Rules (Revised 1st January 2015); That the Defendants did not follow the steps as expressly provided in the Public Service Rules before she was dismissed, and as such, the actions of the 3rd and 4thDefendants are null and void. On the other hand, the Defendants contend that having discovered that the Claimant was involved in the falsification and replacement of the 2016 Basic Education Certificate Examination (BECE) result of Gbagada Girls Junior Secondary School and due process was complied with in accordance with the Public Service Rules 2015, and that the Claimant’s dismissal from the Post Primary Teaching Service of Lagos State Government with effect from 31st March, 2017 was right. They state that Claimant was also dismissed for insubordination for failing to attend the disciplinary committee meetings for which she had notice. Claimant argues that she was dismissed for insubordination and not for replacement or swapping of results, without complying with the procedure required for dismissal of an employee under the Lagos State Civil Service Rules and; contrary to fair hearing principles.
⦁ Arguments of Counsel:
Counsel for Defendants in their final written address formulated the following issues for determination:
⦁ Whether the Claimant committed an offence of serious misconduct punishable under chapter 4 of the Lagos State Public Service Rules 2015.
⦁ Whether due process was duly complied with during the entire proceedings of the Personnel Management Board Meeting which led to the dismissal of the Claimant.
⦁ Whether the Claimant was given fair hearing during the entire proceedings of the Personnel Management Board Meeting.
⦁ Whether the dismissal of the Claimant is lawful.
7. On issue 1, Defendants argue that Claimant committed the offence of serious misconduct as defined in Section 5 Rule 040501 under Chapter 4 of the Lagos State Government Public Service Rules 2015, in that as principal of Gbagada Girls Junior Secondary School she signed and collected the 2016 Basic Education Certificate Examination (BECE) result of her students. That the Claimant went back to the Education District II to meet the Head, Placement, Transfer and Examination Unit, Mrs Adebimpe Otunaike, DW 1 and claimed to have misplaced her own copy and requested to make photocopy. That, as a Director and Principal of a School, the result was released to her but when the Claimant returned the result, it was observed that the copy released to her had been falsified and changed. The Claimant was consequently issued a query by the Education District II on the 24th August, 2016 to explain her involvement in the allegation of falsification and swapping of the falsified result of the BECE result of Gbagada Girls Junior Secondary School with a new one. The Claimant responded to the query and pleaded for leniency, mercy and understanding by exhibit C26. Defendants submit that falsification of records has been proven and that Claimant was dismissed on the basis of falsification of result and insubordination.
8. On issue 2, Defendants submit that the employment of Lagos State Public Servants are governed by the provisions of the Public Service Rules and therefore deemed to have Statutory Flavour, and that the effect of this is that the termination/dismissal of the Claimant from the services of the Defendants must be guided as prescribed in the Lagos State Public Service Rules 2015. They submit that the procedure was complied with as follows: a query dated 24th August 2016 (Exhibit C25) was issued on the Claimant with respect of the falsification and swapping of the falsified result of the 2016 Basic Education Certificate Examination (BECE) result of Gbagada Girls Junior Secondary School; and that the Claimant replied vide letter dated 26th August 2016 (Exhibit C26). Counsel submits that Claimant was further invited to the Personnel Management Board Disciplinary Meeting upon finding her response to the query, unsatisfactory(as shown in C27), and she attended and was given the opportunity to defend herself. Claimant was further invited to another Personnel Management Board (Disciplinary) meeting held on the 1st of September 2016. The Claimant did not appear but instead wrote a letter through her lawyer requesting for statements made concerning her in writing by any person to enable her address the issues raised in the case and also the documents said to have been swapped to enable her prepare appropriately to attend the meeting. Defendant states that the Claimant had initially admitted her role in falsifying the result of the school and the swapping of the result of BECE 2016 of Gbagada Girls Junior Secondary School but changed her story and began to insist on legal representation. Defendants state that the Claimant was invited to two subsequent Personnel Management Board Disciplinary Meetings, of which she failed to appear. According to Defendants, in order to give the Claimant fair hearing, another query was issued to her viaExhibit C33 and she replied again via her Solicitors.The Claimant was again invited for another Personnel Management Board Disciplinary Meeting for the 1st of November 2016 by Exhibit C35, she replied by Exhibit C36 that the time was too short. Based on her request, another letter of invitation admitted as Exhibit C37 was sent to the Claimant. Exhibit C37 specifically stated the documents the Claimant was expected to bring to defend herself of the allegation against her.Rather than the Claimant to attend the PMB meeting and defend herself, she replied by Exhibit C40.
9. Defendants state that Claimant was neither denied opportunity to defend herself alone or by legal representation, rather, she deliberately refused to attend the PMB with or without her Counsel. Defendants submit that it was at the conclusion of the entire Personnel Management Board Disciplinary Meetings, thatthe Board of inquiry recommended that the Claimant should be dismissed from the service of the Post Primary Teaching Service of Lagos State and the said recommendation was forwarded to the Teachers’ Establishment and Pensions Office for ratification.Defendants argue that the Board of the Teachers’ Establishment and Pensions Office (TEPO) having considered her involvement in the falsification and the swapping of the falsified result of year 2016 Basic Education Certificate Examination (BECE) Result of Gbagada Girls Junior Secondary School and failure to attend three Personnel Management Board Meetings despite acknowledgment of the invitation letters was viewed as an act of insubordination to the constituted authority in accordance with the Public Service Rule 040502 (xxv). The Defendants submit that due process was duly complied with during the entire proceedings of the Personnel Management Board Meetings which led to the Dismissal of the Claimant.
Defendants further submit that Claimant’s deliberate refusal to respond to three invitations to the PMB is an act of insubordination to constituted authority in accordance to Rule 040502 (xxvi) of the Public Service Rules 2015 and the penalty is dismissal from service.
10. On issue three, whether the Claimant was given fair hearing during the proceedings of the Personnel Management Board Meetings, Defendants submit that based on the facts and evidence before the Court, the Claimant was given enough fair hearing during the proceedings of the Personnel Management Board (Disciplinary) Meetings before her dismissal from the services of Lagos State Government.
11. Issue four is whether the Dismissal of the Claimant is Lawful. Defendant states that the power to dismiss and to exercise disciplinary control over officers in the State Public Service is vested in the State Civil Service Commission or any other such body. This power may be delegated to any member of the commission or any officer in the State Public Service.Defendants submit that based on the provision of Rule 040406 of the PSR, Claimant’s dismissal from service of Post Primary Teaching Service of Lagos State was lawful and in accordance with the provisions of Chapter 4 of the Lagos State Public Service Rules 2015.
12. Claimant’s Counsel adopted the four issues framed by the Defendants; and added a fifth, which is:
⦁ Whether the purported dismissal of the Claimant by the 3rdDefendant from the Post Primary Teaching Service of Lagos State vide its letter dated 31st march, 2017 with ref: TEPO/ESTAB/GRP/2586/104 and captioned “dismissal from service”, is in violation of section 36(1) of the 1999 constitution as amended and the Lagos State Public Service Rules (Revised 1st January, 2015) and as such invalid, null and void and of no effect whatsoever”
13. On Defendants’ first issue, Claimant submits that shehas not committed any offence of serious misconduct punishable under chapter 4 of the Lagos state public service Rules 2015. That, the Court can only consider exhibit C43 to find the reason for her dismissal; and that considering exhibit C43, what the Defendants have to justify is the reason for dismissal stated in Paragraph 2 of the said Exhibit C43. Claimantargues that there is ample evidence, which was not challenged by the Defendants, that the Claimant in fact appeared before the Disciplinary Committee along with her Counsel on 9 September 2016, 15 November 2016 and 29 November 2016. Claimant submits that no allegation of swapping of results and falsification of results by the Claimant had been investigated and proved; and that the case of ‘insubordination’, alleged, was not proved.
14. Claimant argued Defendants’ issues 2, 3 and 4 together. She stated that the specific Serious Misconduct identified in Exhibit C43 within the meaning and context of Rule 040501 of the PSR, which ought to be investigated and proved is “Insubordination” and not swapping of result. Claimant submits with regard to Issue 2 framed by the Defendants that due process could not possibly be said to have been complied with during the entire proceeding of the PMB which led to the purported dismissal of the Claimant becausethere was never any PMB which was set up, or any disciplinary proceedings instituted, or any investigation done to consider any purported act of “Insubordination to Constituted Authority” by the Claimantin accordance with Rules 040402 to 040406, 040102 of the PSR and the Claimant was never informed via a written statement, at any time that a fresh allegation of “insubordination” has been found against her in line with Rule 040406(viii) of the PSR.Claimant argues that the sanctity of the procedures required by the PSR are captured in the case of NIMASA v. ODEY (2013) LPELR-21402(CA) where NDUKWE-ANYANWU, J.C.A. (Pp. 22-24, paras. F-D) held that:
“The Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. What this means is that a public servant cannot be removed without strictly complying with CSR Okocha vs. CSC Edo State (2004) 3 NWLR Pt.861 page 494, which states: thus, a public officer can be dismissed only if the following Procedure is followed: (a) the officer shall be notified in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing, before a day to be specified, which day must allow a reasonable interval for the purpose, any ground upon which he relies to exculpate himself; (b) the matter shall be investigated by the appropriate authority with the aid of the head of the officer’s department, and such other officer or officers as the appropriate authority may appoint; (c) if any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses; (d) no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;…”
15. With regards to the Defendants’Issue 3,Claimantargues that it can hardly be fair hearing to issue a Letter of Dismissal to the Claimant based on the alleged serious misconduct of “insubordination” founded on the Claimant’s alleged failure to appear at a disciplinary meeting, and then to come before this Court and say that the Claimant was dismissed based on alleged swapping of result and falsification of results. Claimant also argues that there could not be fair hearing when the Defendants have failed to discharge the onus of proving due compliance with Rules 040402, 040403, 040404, 040405 and 040406 of the PSR; the Claimant was never notified in writing of the grounds on which it is proposed to dismiss her in line Rule with 040406 (i) of the PSR; and all the queries issued to the Claimantdid not point to any offence, rule and regulation which the Claimant had broken and the likely penalty as mandated by Rule 040406 (i) of the PSR.
16. On Defendants’ Issue 4, Claimant submits that the purported dismissal of the Claimant is clearly unlawful being in breach of the provisions of the Constitution particularly Section 36 thereof as well as the Rules of the PSR already mentioned.
17. On Claimant’s sole issue, she submits that the procedure leading to her dismissal was not in line with the PSR and as such is null and void. Claimant argues that by Sections 36 (1) (6)(a) & (b) of the 1999 Constitution, she is entitled to fair hearing. That it means that the she is entitled to Counsel of her choice to represent her and that she knows in advance of any document, report or evidence which may be used against her. She argues that exhibits 29, 32, 34 and 40, are specific letters of demand for facilities delivered to the Defendants to which the Defendants never complied with.
18. In their Reply on Points of Law, Defendants submit that the case of falsification of result and swapping of the falsified result was the first case the Defendant was able to prove to the Court and submitthat the Claimant was dismissed based on the falsification of results and swapping of the falsified results. They argue that the case of insubordination came as a result of the Claimant’s refusal to attend three Personnel Management Board Disciplinary meetings. Responding to Claimant’s issue that Exhibit D9A and D9B being dated 2nd and 5th December 2016 respectively which was after the PMB’s of 9th September 2016, 15th November 2016 and 29th November 2016, Defendants submit that they were used during the investigation of the falsification and swapping of the falsified result; and that it was after the conclusion of the PMB that an extract copy of the report of the investigation was produced on the 2nd and 5th of December 2016.
19. On Claimant’s issue that Exhibit D5 (which is the minutes of the proceedings of 31st August 2016) cannot attract any weight whatsoever as they are unsigned by the purported maker, Defendants respond that Exhibit D5 is properly before the Court; and represents what transpired on the said date and that the evidence is not controverted in any form. They further submit that it conforms with the statutory and administrative requirement in respect of such meetings. They submit that the principle of regularity of official action would apply in this instance. Referring to the case of Alhaji Razaq Olayinka Bello & Ors v. AG.Lagos State & ORS (2006) LPELR-7585 CA, andBellov.A.G. Lagos State (2007) 2 NWLR (pt 1017) pg 115. They also argue that Exhibit D5 already tendered by the Defendants and admissible by the Court are documents made by Government Officials in their Official capacity and therefore have no personal interest whatsoever in the outcome of this case, as may have been envisaged by the provision of Section 83 (3) of the Evidence Act 2011.
20. Though Claimant, while adopting his final written address had moved the Court to strike out the Reply on the basis that Defendants were re-arguing facts and not replying on points of law; I refuse this application as I find that the paragraphs referred to led to the legal conclusion made by Defendant.
Decision:
21. I have considered the processes filed in this matter, the evidence led and the arguments of Counsel. I adopt the following issues for determination:
⦁ Whether the Dismissal of Claimant followed the laid down Rules of the Lagos State Civil Service;
⦁ Whether Claimant is entitled to her Claim.
22. There are no contentions on the status of the Claimantbeing part of the Public Service of the Lagos State government, and being subject to the Lagos State Public Service Rules. The Rules defined persons subject to it in its paragraph 010101 and I find that Claimant is contemplated in that definition. She also qualifies as a public officer/Civil Servant as defined under Rule 010103 of the Lagos State PSR. There is therefore no doubt that the Lagos State Public Service Rules apply to her. It is equally conceded by the Defendants, particularly in their Final Written Address, that the Claimant’s employment has statutory flavour, and that the termination of the Claimant’s employment is to be governed by the provisions of the Lagos State Public Service Rules as revised on the 1st of January 2015 (hereinafter referred to as the “PSR”). According to Defendants, ‘Exhibit C1 and C2 confirmed the employment of the Claimant in this suit as employment which has statutory flavour and same is protected by Statute, that is the Civil Service Rules (repealed) now the Lagos State Public Service Rules 2015.’ This means that in the determination of the issues raised, the Lagos State Public Service Rules become the basic reference material upon which the actions of parties in this suit are to be gauged.
23. Judging from the Reliefs sought in this case, this Court has not been called to conduct an investigation on the allegations of gross misconduct leveled against the Claimant; that investigation was for the Defendants. This Court is principally called to determine whether the manner by which the decision being challenged was reached is according to law. See Governor Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292. The unfettered judicial discretion of the Court is only exercised when statutory institutions fail to carry out the statute & tort procedure set out for removal. See also Olaniyan v. University of Lagos (1985) 2 NWLR SC 599.
Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause- Ariori & Ors v. Muraimo Elemo & Ors (1983) 1 SC 13 at 24. Obaseki JSC stated:
The right to fair hearing under Section 36(1) of the 1999 Constitution of Nigeria as applicable in the determination of Civil rights and obligation of people also envisages a trial conducted according to all legal rules formulated to ensure that justice is done to all parties.
24. The law is well settled that where a contract of service enjoys statutory flavour, an employer wishing to terminate the contract must be meticulous in complying with the procedure set out in the relevant Statute or Rules thereunder. Any deviation from the stipulated procedure would render any acts done in respect thereof invalid and liable to the set aside. See: Federal Polytechnic, Ede &Ors v. Alhaji Lukman Ademola Oyebanji (2012) LPELR-19696(CA), Iderima v. R.S.C.S.C. (2005) All FLLR (285) 431 at 450 D – E.
As stated by the Court of Apeal in UBA v. Oranuba (2014) 2 NWLR PT 1390 p. 1 @10 (Per Iyizoba, JCA):
The right to be heard is such an important radical and protective right that the Courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard.
Where an employer removes an employee for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. In the case of Pam v. Mohammed (2008) 16 NWLR (PT 1112) 1 SC. Per Tobi JSC stated that:
The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. The fundamental basis underlying the principle of fair hearing is the doctrine of audi alteram partem which means to hear the other side.
25. It is the law that an employer is free to determine the employment of its employee but it must be done according to contract or according to law(where founded on a statute). The standard is higher where the determination is by dismissal. Where determination is by dismissal, reason must be given; and because of the infamous implication of dismissal, the reason must be justified. Where the employment has statutory flavour, as in this case, then the procedure in the law, must be complied with.
Under Chapter 4 of the Lagos State Government Public Service Rules 2015, Rule 040406(vi) provides:
The officer shall be informed that on a specified day, the subject of his dismissal shall be brought before the Board and he shall be required to appear before it to defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Board.
26. As a result of the grave consequences attached to acts of wrong doing which violate the provisions of Chapter 4 of the Public Service Rules 2015, the following steps should be complied with before taking action against an officer for any wrong;
(a) Issuing of Query
(b) Reply to the Query within the specified time and
(c) Invitation to the Personnel Management Board (Disciplinary) meeting.
27. In this case, allegations of swapping of result was formally leveled against the Claimant and communicated to her via exhibit C27 inviting her to a District Disciplinary meeting on 31st August 2016. That began the Personnel Management Board Disciplinary Meetings. What is not evident however, is the conclusion of that process. The letter of dismissal dated 31st March 2017(exhibit C43) conveys to the Claimant, notification of her dismissal from service. From exhibit C43, the result of the process which started on 31st August 2016, was not made the basis for Claimants dismissal. Exhibit C43’s mention of the disciplinary procedure is in the following words:
The Personnel Management Board Meeting (Disciplinary) held at the Ministry of Education on 9th September 2016, 15th September 2016, and 29th November 2016, considered your involvement in the allegation of the Swapping of the year 2016 Basic Education Certificate Examination (BECE) Result of Gbagada Girls Junior Secondary School.
Nothing further is said concerning the outcome of the meetings. My understanding of this statement is that it refers to a process that was still ongoing. It does not state that Claimant was found guilty from the process or was being dismissed on account of the findings from the Meetings.
Exhibit C43 further states:
2. Your absence at the three (3) Management Board Meetings despite your acknowledgment of the invitation was viewed as an act of insubordination to Constituted Authority in accordance with the Public Service Rule 040502 (xxvi).
3. Consequently, I hereby convey to you, your DISMISSAL from the Post Primary Teaching Service of Lagos State in accordance with the Public Service Rule 040503 (i) with effect from 31st March 2017”.
28. Paragraph 2 of exhibit C43 above conveys the opinion of the Signatory that Claimant’s conduct was viewed as an act of insubordination which is provided to be a serious misconduct by Rule 040502(xxvi). It does not convey the body that founded that decision, and that it is a product of an investigative body after due consideration of the acts constituting the ‘insubordination. Finally, paragraph 3 conveys Claimant’s dismissal in accordance with Rule 040503(i) which provides dismissal as one of the sanctions for serious misconduct.
29. I find, from a consideration of exhibit D43 that the Claimant was not dismissed on account of the disciplinary inquiry. First, it does not state so on the face of the letter of dismissal; second, there is no evidence of the meeting where recommendation for the dismissal of the Claimant was made pursuant to the disciplinary procedures. The exhibits before this Court in respect of the disciplinary procedures and their outcomes are:
⦁ Exhibit D5 which is the report of the meeting of District II Disciplinary Committee held at the Conference Room, Education District II, Maryland. on Wednesday 31st August 2016 which ended with a re-scheduling for 1st September 2016.
⦁ Exhibit D6 which is the Report of meeting of District II Disciplinary Committee held on Thursday 1st September 2016 at the Conference Room, Education District II, Maryland. This meeting did not conclude the enquiry. It was at this meeting that Claimant’s letter requesting for time and materials to prepare her defence was read.
⦁ Exhibit D7 is the minutes and recommendations of the Personnel Management Board Meeting (PMB) held on Friday 9th September 2016 at the Conference Room Ministry of Education Secretariat Alausa, Ikeja. Certain evidence was taken at this meeting. The Claimant was represented at this meeting by Counsel and her husband. Exhibit D7 does not contain the recommendation or the conclusion of the enquiry.
⦁ Exhibit D8 is the minutes of the Personnel Management Board (Disciplinary) meeting held on Tuesday 15th November 2016 in the Conference Room Ministry of Education Secretariat Alausa, Ikeja. The recommendation concerning the Claimant were that:
⦁ That Mrs. Iweze should be deployed to the Ministry with immediate effect
⦁ That the PMB should reconvene in 2 weeks.
⦁ That a letter of invitation to a PMB scheduled for Tuesday 29th November 2016 be forwarded to Mrs. Iweze
⦁ That she should bring along to the PMB (the named documents)
⦁ That Mr. Adeyemi and Miss Feyisara should be re-invited to the PMB on Tuesday 29th November 2016.
⦁ Exhibit D9A and D9B are individual submissions made to the disciplinary meetings. However there is no indication of the meeting where the submissions were made. The dates on which they were made are later than the recorded meetings placed before the Court. It is also later than the date the recorded meeting was adjourned to – the 29th of November 2016. Neither of the documents present any recommendation concerning the investigation on the swapping of results.
30. The Minutes of the meeting of 29th November 2016 is not before the Court. It is not for the Court to assume or conjecture what might have happened at that meeting. The effect is that there is no evidence of the conclusion of the disciplinary inquiry into the allegations against the Claimant. There is no evidence of the recommendations made to the body with authority to convey the decision to the Claimant.
Thus, the evidence before the Court suggests that the investigations into the allegation of swapping and falsification of results were not eventually concluded as envisaged under Rules 040402 to 040406 of the PSR. Instead, it would appear the investigation was abandoned and a fresh allegation of “insubordination” made the basis for the dismissal of the Claimant. On this too, there is no evidence that the allegation of insubordination was ever brought to the Claimant’s attention for her response, before exhibit C43 was issued to her.
31. On the procedure as seen from the above, there is no further need to consider Claimants assertion that she was not given ample opportunity to defend the allegation. It would mainly be academic. Perhaps, if the investigative process had proceeded and had a logical conclusion, then there would have been need to consider if the opportunities given to the Claimant to state her case met the requirements of fair hearing for an administrative investigative panel.
32. Claimant’s Counsel made a big fuss on the exact words that needed to have been contained in the queries of 24th August 2016 (exhibit C25), 16th September 2016 (exhibit C33) and 29th November 2016 (exhibit C41), I am not convinced that Claimant could claim that she was unaware of the nature of the allegations and the implications for her career. I also note Claimant’s contention on the description of the school headed by Claimant which is “Gbagada Girls Junior Secondary School”, differently. For instance, it was described in exhibit C27 as “Gbagada Girls Junior Comprehensive Sec. Sch.”. exhibitC31 as “Gbagada Girls Junior Comprehensive School”. Exhibit C33 (i) and exhibit C37 as “Gbagada Girls Junior Grammar School”. I am convinced that Claimant was never in doubt that it is only one school that was being referred to; that is, that headed by the Claimant.
33. Having said that, I now turn to consider the legality of the dismissal of Claimant vis-à-vis its compliance with the PSR of Lagos State. An employee with statutory flavour is said to be lawfully dismissed when the employer complies strictly with the way and manner prescribed by the relevant statute before terminating/dismissing his employment.
Chapter 4 of the Lagos State Public Service Rules 2015, Rule 040406 provides:
Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Public Service may be dismissed by the State Civil Service Commission or any other such body only in accordance with these rules
The provisions are hereby highlighted:
⦁ The officer shall be notified in writing of the grounds on which he is proposed to be disciplined. The query should be precise and must relate to the circumstances of the offence.
⦁ The officer shall be called upon to state in writing within the period specified in the query, any grounds upon which he relies to exculpate himself.
⦁ If the officer submits his representations and the State Civil Service Commission or any other such body is not satisfied that he has exculpated himself, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the Commission or any other such body may take such action against the officer as it deems appropriate.
⦁ If upon considering the representations of the officer, the Commission or any other such body is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate.
⦁ Where a Tribunal of inquiry/Personnel Management Board/Administrative Panel is constituted, then the officer shall be informed that on a specified day, the subject of his dismissal before the Board and shall be required to appear before it to defend himself and be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Board.
⦁ If upon considering the report of the Board together with the evidence and all material documents relating to the case, the Commission or any other such body is of the opinion that the officer should be dismissed, such an action shall immediately be taken.
34. I have already found that there is no evidence of the conclusion of the disciplinary process and the recommendations leading to the issuance of exhibit D43. The text of exhibit D43 presents the inconclusive nature of the disciplinary procedure on the allegation of swapping of results. My conclusion on this point is supported by the fact that it is not stated as the reason for the dismissal in exhibit D43.
What is communicated to the Claimant as the basis for her dismissal is ‘insubordination’. This is the allegation with a conclusive tone. Rule 040406(viii) of the PSR allows for the leveling of further grounds for dismissal. It states,
If, during the course of the inquiry, further grounds of dismissal are disclosed and the State Civil Service Commission or any other such body thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission or any other such body, be furnished with a written statement of it and the same steps shall be taken as prescribed above in respect of the original grounds.
The Claimant was never informed via a written statement, at any time that an allegation of “insubordination” has been made against her.
The reason for dismissal of the Claimant being “insubordination to constituted authority” was confirmed by Mr. Mohammed Adesina Odeyemi (DW3) when he stated under cross examination that, “The reason she was dismissed is in paragraph 2 of C43”. “Insubordination” is stated as a serious act of misconduct in Rule 040502(xxvi) of the PSR.
It is important to stress that Rule 040504 of the PSR states that “disciplinary procedure for serious misconduct shall be in accordance with Rules 040402 – 040406”.
35. There was no query issued to the Claimant for any act of “insubordination” which complied with Rule 040406 (i) of the PSR. There was no Personnel Management Board Meeting (Disciplinary) which was set up, or any disciplinary proceedings instituted, or any investigation done to consider any purported act of “Insubordination to Constituted Authority” by the Claimant in accordance with Rule 040102 of the PSR. The Defendants did not lead any evidence to this.
36. If the Defendants wanted to dismiss Claimant on grounds of insubordination, then, the procedure has to be followed as required by the PSR. Insubordination is listed under 040502(xxvi) as gross misconduct which could lead to dismissal. Paragraph 040406(i) requires that a query be issued on the Claimant, first and foremost; if she is proposed to be dismissed on this ground. This would then open the channel for further steps in line with the Rules. This was not done in this case.
37. The effect is that, the Claimant was not given an opportunity to defend the allegation of insubordination which is the basis for her dismissal.
38. The Lagos State Public Service Rules itself provide under Rule 040508 that the ultimate penalty for serious misconduct is dismissal. An officer who is dismissed forfeits all claims to terminal benefits, leave or transport grant subject to the provisions of the Lagos State Pension Reform Law 2007. That must be why it made stringent provisions that must be followed to ensure that one who is dismissed is given the opportunity to be fairly heard. Therefore, Rules made in that regard must be strictly complied with. Where that is not done, the action must be declared unlawful, null and void, for the mere fact of non-adherence to the procedure stipulated by the Rules.
Rule 040403 of the Lagos State Public Service Rules 2015 provides that:
Where a Tribunal of Inquiry/Personnel Management Board/Administrative panel set up by the Government makes recommendations of a disciplinary nature on an officer, the State Civil Service Commission or any other body shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him by the Tribunal of Inquiry/Personnel Management Board/Administrative panel.
If the officer refuses or neglects to reply to the allegations within a reasonable time or not at all, the Commission or its Agent or any other such body shall proceed to accept and enforce the recommendations of the Tribunal of Inquiry/Personnel Management Board/Administrative panel and take such disciplinary action against the officer as it shall deem appropriate.
39. By the evidence before this Court, there is no proof of a recommendation made by the PMB. Exhibits D5 to D9 show records of proceedings of the various PMBs, up to the one 9th November 2019. No record is shown of the proceedings of the 29th November or anyone following after that. The records of the meetings exhibited do not show that Claimant was already recommended for any disciplinary measure. The evidence is that no recommendation for disciplinary measure was made to any authority. The question therefore is; where then is the authority under which exhibit D43 was issued?
According to Defence Counsel in his argument at paragraph 4.29, after referring to Rule 040403;
At the conclusion of the entire Personnel Management Board Disciplinary Meetings, the Board of inquiry thereafter recommended that the Claimant should be dismissed from service of Post Primary Teaching Service of Lagos State and the said recommendation was forwarded to the Teachers’ Establishment and Pensions Office for ratification.
The Board of the Teachers’ Establishment and Pensions Office (TEPO) having considered her involvement in the falsification and the swapping of the falsified result of year 2016 Basic Education Certificate Examination (BECE) Result of Gbagada Girls Junior Secondary School and failure to attend three Personnel Management Board Meetings despite acknowledgment of the invitation letters was viewed as an act of insubordination to the constituted authority in accordance with the Public Service Rule 040502 (xxv).
The Board of the Teachers’ Establishment and Pensions Office (TEPO) thereafter ratified the recommendation of the disciplinary proceedings and the Claimant was accordingly dismissed from the Post Primary Teaching Service of Lagos State with effect from 31st March, 2017.
This, according to Defence was done pursuant to the power vested in the Teachers’ Board as follows:
Section 3(1) of the first schedule of the Lagos State Post- Primary Teaching Service Law CAP L54 provides as follows: The functions of the Personnel Department shall include____
Dealing with all matters relating to appointment, confirmation of appointment, promotion, transfer, dismissal and discipline of all teaching and non-teaching staff in post-primary schools in the District as contained under Section 16 of this law, under the direction of the Tutor-General/Permanent Secretary.
40. As already noted, after the proceeding of 9th September 2016, no evidence of the further steps taken in compliance with the PSR is in evidence. The recommendation for Claimants dismissal by a PMB is NOT in evidence. The recommendation forwarded to the Teachers’ Establishment and Pensions Office for its ratification is not in evidence. The meeting of the Board of the Teachers’ Establishment and Pensions Office where the recommendation was considered and ratified is not in evidence. The forwarding of reports or recommendation to the Lagos State Civil Service Commission is not in evidence. How can this Court decide and find that the procedure stated by the PSR was complied with, without such evidence.
Chapter 4 of the Lagos State Public Service Rules 2015, Rule 040406(x) provides that:
“If upon considering the report of the Board together with the evidence and all material documents relating to the case, the Commission or any other such body is of the opinion that the officer should be dismissed, such an action shall immediately be taken”.
There is no evidence that the above was complied with in any way. Deriving from the apparent inconclusiveness of the disciplinary proceedings for swapping and/or falsification of result before exhibit C43 was written, and the fact that swapping of result was not stated in exhibit D43 as the reason for dismissal, I find that Claimant was not dismissed for swapping of result and that Defendants’ argument that it was is futile as they have not established that they complied with Rule 040403 of the Lagos State Public Service Rules 2015.
41. If ‘insubordination’ as stated, is the reason for Claimant’s dismissal, I also find that Defendants did not comply with the PSR either. This is because, the allegation of ‘insubordination is mentioned to the Claimant, for the first time in exhibit D43, the letter of dismissal. Nowhere in the entire process was the Claimant confronted with the allegation of insubordination for her response. In that event, the entire D43 and the action it purports to convey fail, having been arrived at contrary to the PSR of Lagos State.
42. It is well-settled that the consequence of the breach of the right to fair hearing in an employment governed by statute is that such an employee is entitled to be reinstated. In University of Maiduguri Teaching Hospital Management Board v Dawa (2001) 16 NWLR (pt. 739) 424, it was found that the removal of the plaintiff/respondent violated his right to fair hearing; the Court declared that; “where the provisions of a statute govern the conditions of an employee, the courts regard the employee as having secured a special legal status, other than the ordinary master and servant relationship, with his employer. The employer is bound to comply with those conditions otherwise his act of termination would be declared null and void and any other act based thereon will also be void – per Per NWEZE, J.C.A.in Federal Polytechnic, Ede &Ors v. AlhajiLukmanAdemolaOyebanji (Supra).
This Court in Godwin OkosiOmoudu v. Prof. Aize Obayan & Anor Suit No: NICN/AB/03/2012 judgment of which was delivered on 2014-10-08, per B AAdejumo PNICN, had occasion to consider a dismissal founded on the report of a panel that investigated another conduct different from the one for which the Claimant was dismissed. The facts in that case showed that the Defendant University had cause to issue a query to Claimant for an alleged verbal assault on a senior officer. However, the reason given for the termination of Claimant’s appointment was the report of a panel that investigated the involvement of the Claimant in a shuttle service incident, which panel did not give the Claimant an opportunity to be heard. The Court found that the reason given by the Defendant University for the termination of the Claimant was not established and that there was non-compliance with the conditions of service contained in the staff handbook.
43. The only other issue left for determination is whether the Claimant is entitled to her claim. It is the claim of the Claimant and the reliefs sought that a Court must be concerned with. This is the decision in Society Bic S.A &Ors v Charzin Industries Ltd (2014) 4 NWLR [Pt. 1398] 497 at 551-552 where the Supreme Court held that:
To expatiate, it can safely be said that jurisdiction is determined by what the Plaintiff is demanding and cannot be determined by a situation where the response that is anticipated, if I may say so would be decider. Going contrary to using the Claim as a determinant is like begging the question, allowing the cart before the horse or a possible journey into speculation in getting into materials outside what the initiator of the Court process has put forward.
Based on the findings already made,I find that the Claimant is entitled to her 1st Relief. I therefore Declare that the Dismissal of the Claimant by the 3rdDefendant from the Post Primary Teaching Service vide its Letter dated 31st March, 2017 with Ref: TEPO/ESTAB/GRP/2586/104 and captioned “Dismissal from Service”, is in violation of Section 36(1) of the 1999 Constitution as Amended and the Lagos State Public Service Rules (Revised 1st January, 2015) and as such invalid, null and void and of no effect whatsoever.
Founded on the above, I hereby Order and set aside the 3rdDefendant’s Letter dated 31st March, 2017 with Ref: TEPO/ESTAB/GRP/2586/104 and captioned “Dismissal from Service”.
Having held that the letter of purported dismissal is null and void and of no effect, the effect is that the Claimant is still in lawful employment of the Post Primary Teaching Service of Lagos State since 31st March 2017. I so hold.
Being an employment with statutory flavour, and in view of the first three reliefs already granted, the Claimant is entitled to an order for reinstatement. The Defendant is hereby ordered to re-instate the Claimant to her Office and Position within the Post Primary Teaching Service of Lagos State and further to restore her to the position she would have been if the Letter dated 31st March, 2017 had not been served on her. This Order recognises that Claimant would have retired on the 19 December 2018 and is to be placed in the position she would have legitimately been.
The Defendants are further ordered to pay all entitlements of the Claimant from the date of the purported dismissal (i.e. 31st March, 2017) till date (consideration being duly had to her retirement).
This judgment is to be complied with not later than 60 ]days from the date of judgment.
I make no order as to cost.
Judgment is entered accordingly.
——————————————–
Hon. Justice Elizabeth A. Oji PhD
