Yunus Adinoyi Omanayin-VS-Federal University of Technology

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MINNA JUDICIAL DIVISION

HOLDEN AT MINNA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K. D. DAMULAK

ON THE 7^TH DAY OF NOVEMBER 2019

SUIT NO. NICN/MN/05/2018

BETWEEN:

YUNUS ADINOYI OMANAYIN …………………………. CLAIMANT

AND

FEDERAL UNIVERSITY OF TECHNOLOGY MINNA ………. DEFENDANT

REPRESENTATIONS:

S.O. Ogbeche, holding brief of M.C. Abubakar Esq For the claimant

Philip A. Olusola Esq. For the defendant.

JUDGMENT

1.0 INTRODUCTION

This judgment borders on a claim of unlawful dismissal. The case was commenced via a complaint dated 24/10/2018 and filed on 25/10/2018, together with a statement of facts, list of witnesses, witness statement on oath, list of documents to be relied upon and copies thereof.

The claimant seeks the following reliefs:

A Declaration that the dismissal of claimant’s appointment was in gross violation of his right to fair hearing.
Order compelling the defendant to restore the appointment of the claimant forthwith.
An Order mandating the defendant to pay all salaries, allowances and arrears with effect from the date of his purported dismissal until the final determination of this suit.
The cost of this suit.

2.0 FACTS OF THE CASE

The claimant was a lecturer in the department of Geology with the defendant. He was queried for sexual harassment. He replied and was suspended. He appeared before a disciplinary committee and was subsequently dismissed; thus this action.

3.0 CASE OF THE CLAIMANT

Testifying as CW1 on 30/5/2019 in line with his statement of facts, the claimant stated as follows;

I was appointed by the defendant vide a letter dated 3^rd January, 2012. As a lecturer I am also a research student at the University working on my Ph.D proposal in Geology Department. On 28^th February 2018, I was invited by Prof Kabir, the servicom focal officer to the servicom office at old Senate building at Bosso Campus over allegation of rape which they were investigating. On 20th March, 2018, I was served with a query letter dated 19^th March. I replied the query promptly as requested by the defendant. On 22^nd February, 2018 the defendant served me with a letter of suspension.

Sometimes in April, 2018 I was invited to the Staff Disciplinary Committee of the defendant at the Council Chamber of the defendant for interaction with panel members; the reason for the invitation was based on purported allegation of rape. At the Council Chamber I met my H.O.D. Dr Alkali, Mr. Adegbe (office mate), Mr. Jude (200 level adviser), Dr. Fatima (University Health Services) and Deborah but we were separately interacted with. All the witnesses who purportedly testified at the committee against me did so in my absence. On 3^rdAugust, 2018, I was served with a letter of dismissal dated 31^st July, 2018. I believe the allegation was never investigated and that the process leading to my dismissal was not in accordance with due process and fair hearing.

I believe that the allegation of rape/sexual harassment are serious offences which ought to be properly investigated not only by an administrative committee but security agents/court before arriving at the decision dismissing me from service. Due process was never followed before I was purportedly dismissed.

The claimant tendered 9 documents in evidence which were admitted and marked as exhibits YAO1 to YOA9 in the following order;

Letter of appointment dated 3/1/2012
Query letter dated 19/3/2018
Suspension from duty dated 22/3/2018
Answer to query dated 20/3/2018
Letter of dismissal dated 31/7/2018
Claimant solicitor’s letter dated 17/9/2018
Reply letter from defendant dated 3/10/2018
Report of investigative committee dated 24/4/2018
Claimant solicitor’s letter dated 8/10/2018

Testifying under cross examination, CW1 said the defendant has a condition of service for senior staff. I am acquainted with the condition of service. I am a senior staff and the condition of service for senior staff is binding on me. The query letter refers to sexual harassment. This is the condition of service of the defendant revised up to 2012.

The said condition of service was admitted in evidence and marked as exhibit PYAO 10.

The claimant filed a reply to statement of defence on 22/11/2018 but this process is not accompanied by any witness statement on oath. Its usefulness does not go beyond the fact that it was filed.

4.0 CASE OF THE DEFENDANT

One Lucy Peter, an administrative staff of the defendant, testified as DW1 for the defendant on 29/6/2019 in the language of the statement of defence as follows;

I was also the Secretary to the Defendant’s Investigative Committee that investigated the complaint against the Claimant in March, 2018.The letter of suspension issued to the Claimant is dated 22^nd March, 2018, not 22^nd February, 2018 as alleged by the Claimant. The allegation made against the Claimant was for the sexual harassment of one Deborah Ogbaji, a 200 level student of the University. Aforesaid allegation of sexual harassment made against the Claimant amounts to serious misconduct contrary to section 6 B(y) of the Defendant’s Conditions of Service for senior staff which punishment is dismissal with which the Claimant as an Academic staff is acquainted. The Defendant followed all its disciplinary procedures as specified in sections 6 and 7 of Defendant’s Conditions of Service for Senior Staff. The allegation of sexual harassment made against the Claimant could be investigated, proven and appropriate sanctions imposed by the University Council as was done in this case without having to take the Claimant to a Court of law for any criminal trial. Under the Defendant’s Conditions of Service for Senior Staff, the Claimant is afforded the right to fair hearing pursuant to sections 6(b)(y) and 7 thereof. A dismissed staff, such as the Claimant, is no longer entitled to any salary payment cum other emoluments/benefits with effect from the date of dismissal.

DW1 testified under cross examination as follows;

Sexual harassment is indulgence in a sexual partner who is unwilling. Sexual harassment does not come in when the two agree.

In the course of investigation, the claimant claimed that they were friends but the girl said she agreed for the friendship out of fear. I stand by paragraphs 1,2,3,16,17 and 18 of exhibit YAO8.

Witnesses were called in the investigation. The witnesses did not testify in the presence of the claimant. None of the witnesses witnessed the action. None of the witnesses said they heard Deborah shouting and complaining. The claimant denied the content of the tape. The committee did not investigate to find out whether or not the content of the tape was doctored. Exhibit YAO8 finds that the doctor’s report is that there was no rape. He found that there was sexual intercourse. It is not in exhibit YAO8.

5.0 FINAL WRITTEN ADDRESS OF DEFENDANT COUNSEL

The defendants counsel formulated two issues for determination and argued them as follows;

Issue 1, whether or not the Claimant has proved his claim of unlawful dismissal against the Defendant as per the parties’ pleadings and evidence adduced before the Hon. Court.

Submitting on this issue, learned counsel argued that contrary to the case of the claimant that he was dismissed on an alleged offence of Rape, he was dismissed on an alleged offence of Sexual Harassment which could be administratively dealt with by the Defendant University as per its staff’s conditions of service without going to court for criminal trial.

The Oxford Advanced leaner’s Dictionary, 7^th Edition defines Sexual Harassment” to mean: “Comments about sex, physical contact, etc. usually happening at work that a person finds annoying and offensive. Sections 6 and 6B(Y) of Exhibit PYAO 10 define discipline and serious misconduct.

That the Defendant followed due process before dismissing the Claimant as envisaged by Section 7A of Exhibit PYAO 10 (Defendant’s Senior staff Conditions of Service) i.e. (i) Issuance of Query (Exhibit YAO 2); (ii) Answer to Query (Exhibit YAO 4); (iii) Suspension Letter (Exhibit YAO 3); (iv) Investigative Committee’s Report (Exhibit PYAO 10) (v) Letter of Dismissal (Exhibit YAO 5)

Counsel relied on EZE Vs. SPRING BANK PLC (2012) 20 WRN 1, at 26, where the Apex Court held that;

“In statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct”.

EIGBE vs. N.U.T. (2011) 22 N.L.L.R. (PT. 62) 227, where the Court of Appeal held;

“In cases of gross misconduct, an employer has a right to summarily dismiss his erring staff without prosecuting him in any law Court”.

Issue 2, Whether the Claimant is entitled to the reliefs claimed by him against the Defendant in the circumstances of this case:

On this issue, learned counsel submitted that Sexual Harassment amounts to serious misconduct which may lead to the dismissal of any erring staff by the Defendant. The Claimant failed to plead and prove the terms of his employment with the Defendant. That the Claimant missed the point “ab initio” when he founded his claims on alleged offence of Rape which he could not prove at the end of the day.

6.0 FINAL WRITTEN ADDRESS OF CLAIMANT COUNSEL

7.0 The claimant counsel formulated two issues for determination and argued them as follows;

Issue 1, Whether having regards to the facts of the case as disclosed in the pleadings and evidence led before this court, the claimant was afforded fair hearing by the investigation committee of the defendant.

Arguing this issue, learned counsel submitted that the investigative committee is required to observe strict adherence to the rules of fair hearing represent by the twin pillar of natural justice i.e audi alterem partem and nemo judex in causa sua rule.

Counsel relied on Section 36(1) 1999 Constitution of the Federal Republic Of Nigeria and GYANG V COP OF LAGOS STATE (2014)ALL FWLR(PT721)1441. NJC v IYABOYERIMA, LER (2014) CA/ A/532/2011. DANIEL V FRN (2014) ALL FWLR (PT 735) 319 at 356.

That the witnesses were all interacted with separately. The very fact that the claimant never had the opportunity to cross examine the witness who testified against him before the investigative committee was specifically admitted by defendant in its statement of defense paragraph 2. That DW1 particularly under the heat of cross examination stated categorically that the witnesses who testified at the investigation committee all testified in the absence of the claimant throughout the proceeding of the committee. She further stated that the exhibit much relied upon i.e. audio recording was presented by the purported victim (Deborah) and played it to the committee then tendered in evidence in the absence of the claimant. She further admitted that the same material (audio recording) was not made available to claimant subsequently and that the committee did not to verify the authenticity of the audio tape albeit the claimant’s denial of the voice on the audio recording stating that it’s an era of technological manipulation. It goes without saying that in the instant case, the defendant did not comply with any of the requirement of fair hearing before reaching its decision against the claimant.

Evidence Exhibit YOA8 did not show that the offence alleged was convincingly proved. Nowhere in the report did it state or could it be implied that the victim was ever unwilling to partake in the purported offence of sexual act as stated by in paragraph (5) ( 4) of exhibit YOA 8. More so, there is no offence such as sexual act in exhibit PYOA 10 of which the committee found the claimant wanting from its report (exhibit YOA 8) before this court.

Issue2, Whether the investigation committee as an administrative body has the power to deal with criminal wrong.

On this issue, learned claimant counsel submitted that sexual harassment a crime contrary to S.285 of Penal Code Law (Amendment Law 2015) cap. 94 Laws of Niger State of Nigeria, 1989 which define sexual harassment and also prescribe a punishment for it. Regardless of the listing of the offence of sexual harassment as a misdemeanor, it still amount a criminal offence /wrong which the law is clear on. The investigation committee as an administrative body has no power to deal with criminal wrong. Section 6 of 1999 Constitution; STEEL BELL (NIG) LTD V GOVT. CRS STATE (1 996) 3 NWLR (PT 438) PG 571. That the act of sexual harassment which is the alleged offence for which the committee was constituted to investigate is a criminal wrong and any adjudication regarding it will amount to a Judicial act which is the sole function of the judiciary. EGBUINIWE V FGN (2010) ALL FWLR (PT530)1317@ 1334.

8.0 REPLY ON POINTS OF LAW BY DEFENDANT’S COUNSEL

Replying on points of law, learned defendant’s counsel submitted that the claimants written address was filed on 3/9/2019 outside 21 days as ordered by the court and without an order of extension for time thus the claimants final written address is incompetent and should be discountenanced. That the claimant was served with the defendant’s final written address on 3/7/2019.

Replying to claimant’s issue 1, learned defendants counsel submitted that it is also trite that an order of re-instatement of a dismissed employee is not granted by the court as a matter of course, it is an equitable remedy which the Hon. Court may grant in deserving cases by exercising its discretion Judicially and judiciously. Such remedy will be refused by the court where the confidence between the employer and the employee has been destroyed. IMOLOAME VS.WAEC (1992) 11/12 S.C.N.J. 121.

Replying to claimant’s issue 2, learned defendants counsel submitted that it has not been seriously contested by the Claimant’s Counsel that the offence of Sexual Harassment” is strict sensu criminal and not also a civil wrong. That the wrong has been admitted. In JIBRIL VS. MIL.AD, KWARA STATE (2007) 47 WRN 63, the Court of Appeal held thus: “Where there has been admission, the need for proof before a regular criminal court no longer exists. Admission of the Officer may be inferred from his conduct or from evidence e.g. his Reply to a query”.

Section 254C(1)(g) of the 1999 Nigerian constitution (as amended) vests this Hon. Court with the jurisdiction to entertain any suit in civil causes and matters relating to or connected with any dispute arising from discrimination or Sexual Harassment at workplace.

9.0 ISSUES FOR DETERMINATION

The defendant formulated two issues as follows;

Whether or not the Claimant has proved his claim of unlawful dismissal against the Defendant as per the parties’ pleadings and evidence adduced before the Hon. Court.
Whether the Claimant is entitled to the reliefs claimed by him against the Defendant in the circumstances of this case.

While the claimant also formulated two issues as follows;

Whether having regards to the facts of the case as disclosed in the pleadings and evidence led before this court, the claimant was afforded fair hearing by the investigative committee of the defendant.
Whether the investigation committee as an administrative body has the power to deal with criminal wrong.

Considering the pleadings, evidence and the submissions of both counsels, the court is of the opinion that the 1^st issue formulated by the defendant counsel can adequately dispose of all the questions raised by both parties, it is accordingly adopted as the issue for determination.

10.0 COURT DECISION

I have considered the pleadings, evidence and exhibits tendered as well as the final written addresses of both counsel in this case. In determining the issue adopted for determination, it is imperative to start with some preliminary issues.

The first issue is the contention that the claimant’s final written address should be discountenanced for having been filed outside the 21 days allowed without an order for extension of time.

There is no contrary contention to this by the claimant’s counsel. On the 27/6/2019, the claimant’s counsel asked for 21 days to file his final written address after service of the defendant’s final written address. The defendant’s final written address was served on claimant’s counsel on 3/7/2019 as shown in the endorsement copy in the Court’s file but his final written address was filed on 3/9/2019 without an order for extension of time. This renders the claimant’s final written address incompetent and liable to be discountenanced, same is hereby discountenanced.

Secondly, it is the contention of the claimant that an allegation of rape/sexual harassment is a criminal offence and the disciplinary committee has no power to find him guilty of crime and to punish him.

For a start, the documents tendered in evidence show that the claimant was accused, investigated and dismissed on an accusation of sexual harassment not rape. This however is immaterial as the contention of the claimant is that he was not accorded fair hearing in the process leading to his dismissal,

Sexual harassment is both a criminal act and a civil wrong. In the circumstance of this case, sexual harassment at place of work contrary to the school’s Rules and regulations is strictly a civil wrong as contemplated under section 254(1)(g) of the constitution of the Federal Republic of Nigeria 1999 as amended as well as Order 14 Rule 1 of the 2017 Rules of this Court. Accordingly, the defendant’s disciplinary committee was in a position to investigate same and to recommend appropriate disciplinary measures. I so hold.

This leads to the question raised by the issue for determination; whether the disciplinary procedure as conducted by the disciplinary committee of the defendant afforded the claimant fair hearing.

Fair hearing constitutes of affording the accused person to know the allegation against him, his accuser, the evidence given against him and the opportunity to contest same, the opportunity to hear and cross examine the witnesses who testify against him, See section 36 Constitution of the Federal Republic of Nigeria 1999 as amended. See also the case of

ALHAJI (CHIEF) WAIDI OLATUNJI v. LASISI ADEDAPO & ORS (2013) LPELR-22155(CA) where the Court of Appeal per Dongban- Mensem J.C.A held as follows;

It is pertinent to look at the concept of fair hearing as fair hearing is a fundamental factor in every judicial proceeding. In the case of Chukwuma v. FRN (2011) LPELR-869 (SC) my lord Mohammed JSC held @ pp 23-24 that:-
“The concept of fair hearing postulates a hearing in which the authority is fairly exercised, that is consistent with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross-examine and to have findings supported by evidence. It thus, implies that both sides be given an opportunity to present their respective case and that each side is entitled to know that case is being made against it and given an opportunity to reply thereto”.

According to the claimant,

“At the Council Chamber I met my H.O.D. Dr Alkali, Mr. Adegbe (office mate), Mr. Jude (200 level adviser), Dr. Fatima (University Health Services) and Deborah but we were separately interacted with. All the witnesses who purportedly testified at the committee against me did so in my absence”.

This was not denied by the defendant but the DW1 confirmed this under cross examination when she testified thus;

“Witnesses were called in the investigation. The witnesses did not testify in the presence of the claimant. None of the witnesses witnessed the action.”

The implication of this is that the claimant was not afforded fair hearing before he was found liable and dismissed. This disciplinary proceedings and the punishment was in violation of claimant’s right to fair hearing as enshrined in section 36 of the Constitution and in violation of section 7 of exhibit PYO 10, the defendants conditions of service.

I find that the dismissal of the claimant in violation of his Constitutional right to fair hearing is unconstitutional, unlawful, null, void and of no effect whatsoever.

The employment of the claimant with the defendant has statutory flavor which is not contested herein. The authorities are to the effect that where an employment is covered by statutory flavor and the court makes a finding of unlawful dismissal, the remedy is an order of reinstatement and payment of emoluments to the employee. The defendant’s counsel however submitted that an order of re-instatement of a dismissed employee is not granted by the court as a matter of course, it is an equitable remedy which the Hon. Court may grant in deserving cases by exercising its discretion judicially and judiciously. Such remedy will be refused by the court where the confidence between the employer and the employee has been destroyed.

The defendant has not in any way shown how the confidence between the employer and the employee has been destroyed nor any other reason why an order of reinstatement should not be made in the circumstance of this case. The claimant is entitled to an order of reinstatement and payment of his emoluments. I so hold.

COURT ORDER

For the avoidance of doubt, the claimant’s case succeeds and the court hereby orders as follows;

It is hereby declared that the dismissal of claimant by the defendant was unconstitutional, unlawful, null, void and of no effect whatsoever.
The claimant is hereby reinstated to his position from today the 7^th day of November, 2019 without any loss of remuneration.
The defendant is hereby ordered to pay all salaries, allowances and arrears to the claimant from the date of his purported dismissal to the day of this judgment, today the 7^th day of November, 2019.
I award Cost of N100,000.00 in favour of the claimant.

This is the judgment of the Court and it is entered accordingly.

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, MINNA.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MINNA JUDICIAL DIVISION

HOLDEN AT MINNA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K. D. DAMULAK

ON THE 7^TH DAY OF NOVEMBER 2019

SUIT NO. NICN/MN/05/2018

BETWEEN:

YUNUS ADINOYI OMANAYIN …………………………. CLAIMANT

AND

FEDERAL UNIVERSITY OF TECHNOLOGY MINNA ………. DEFENDANT

JUDGMENT ORDER

WHEREAS claimant took out a complaint on the 25^th of October, 2018 against the defendant seeking the following reliefs:

A Declaration that the dismissal of claimant’s appointment was in gross violation of his right to fair hearing.
Order compelling the defendant to restore the appointment of the claimant forthwith.
An Order mandating the defendant to pay all salaries, allowances and arrears with effect from the date of his purported dismissal until the final determination of this suit.
The cost of this suit.

AND after hearing the evidence of both parties and the address of S.O.Ogbeche Esq. holding brief of M.C. Abubakar Esq. for the claimant and Philip A. Olusola Esq. for the defendant, it is held that the case of the claimant succeeds and it is hereby ordered as follows;

COURT ORDER

It is hereby declared that the dismissal of claimant by the defendant was unconstitutional, unlawful, null, void and of no effect whatsoever.
The claimant is hereby reinstated to his position from today the 7^th day of November, 2019 without any loss of remuneration.
The defendant is hereby ordered to pay all salaries, allowances and arrears to the claimant from the date of his purported dismissal to the day of this judgment, today the 7^th day of November, 2019.
I award Cost of N100,000.00 in favour of the claimant.

GIVEN UNDER THE SEAL OF THE COURT AND THE HAND

OF THE HONOURABLE JUDGE, HON. JUSTICE K. D. DAMULAK

THIS 7^TH DAY OF NOVEMBER, 2019.

…………………………….

HON. JUSTICE K. D. DAMULAK

JUDGE