Mrs. Rasidat Sola Kolawole -VS- Kwara State University, Malete

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE: 20^TH JANUARY, 2020 SUIT NO: NICN/IL/10/2017

BETWEEN

MRS RASIDAT SOLA KOLAWOLE ……………………….. CLAIMANT

AND

KWARA STATE UNIVERSITY, MALETE ……………………. DEFENDANT

REPRESENTATION

B.F Lawal , A.T Kamaldeen, Elizabeth Abayomi, for the claimant

Yusuf Ali SAN, Yakub Daudu Esq, I.O Atofarati, N.N Adegboye, A.F Isau, A.A Mustapher A.M Salman for the defendant

JUDGMENT

It is the case of the claimant by her sworn deposition that she was employed by the defendant as a Programmer/System Analyst and her appointment was confirmed in 2012. She went on that at various times she was promoted by the defendant and that on the 9^th of March, 2016 a letter of conversion of appointment was issued to her which converted her appointment from Senior System Analyst to a Principal Analyst II on CONTISS 09. It is her further testimony that on the 20^th of January, 2017 she was summoned by the Deputy Chief Safety Officer alleging her of result manipulation by a student and was asked to write a statement. That on the 25^th of January, 2017 she received an email informing her of a meeting outside the defendant’s campus at Sango contact office. She continued that while at the meeting she was whisked away, interrogated formally, detained, humiliated, harassed and all the defendant’s belongings in her possession were retrieved from her. On the 24^th of January, 2017[sic] she reported at the Nigeria Security and Civil Defence Corps (NSCDC) where she met with the officers of the defendant and the student in question. According to her, the student denied knowing the defendant and the said manipulated result was not shown to her. That to her surprise she was served with a suspension letter dated 30^th of January, 2017. She stated that on the 9^th of March, 2017 she received a letter from the defendant dated 28^th of February, 2017 with a Directive to Resume Duty and Respond to queries which she responded to. She averred that on the 13^th of March, 2017 she was issued a letter dated 10^th March, 2017 to appear before the Senior Staff Disciplinary Committee (SSDC) and on the 20^th of April, 2017 she was served by the Chief Safety Officer a dismissal letter. That in exercise of her right of appeal, she wrote a letter of appeal to the defendant but that no Appeal Committee was set up. It is claimant’s statement that her appointment and the termination of same is governed by the defendant’s Administrative Manual, 2015 and Kwara State University Law, 2008, the law which to her the defendant refused, failed and neglected to follow in terminating her appointment.

It is against this backdrop that she is claiming against the defendant through the General form of complaint dated 24^th July, 2017 as follows:

AN ORDER declaring the purported query and subsequent dismissal of claimant’s appointment by the defendant as null, void and of no effect whatsoever.
AN ORDER declaring the appointment of the claimant as valid and subsisting.
AN ORDER of payment of all salaries, allowances and other benefit to which the claimant has been entitled from the 30^th day of January, 2017 being the date of her purported suspension up till 20^th day of April, 2017 being the date of her purported dismissal and subsequently thereafter until the determination of this suit.
A sum of N20,000,000.00 (Twenty Million Naira) as aggravated and/or exemplary damages for the career stagnation or retrogression, financial misfortune, agony, unlawful detention, harassment and emotional distress caused by the claimant [sic] on the footing of the unjustified suspension and dismissal of the claimant by the defendant.

At trial, the claimant testified for herself as CW. She adopted her written statement on oath on the 27^th of December, 2017 as her evidence in the case, the gist of which is captured above in this judgment. She tendered documents which were admitted in evidence as Exhibits RS -RS10. The defendant testified through one Alhaji Taiwo Ambali Abdul and Abdul-Malik N. Usman as DW1 and DW2 respectively. They both adopted their sworn depositions on oath on the 11^th of December, 2017 as their evidence in the case. They tendered the following Exhibits TA-TA7, U1-U2.

The defendant on the other hand averred that the claimant was in its service till 20^th of January, 2017. It pleaded that the claimant at the material time was alleged of involvement in the manipulation of results for a student. That she was never interrogated formally, detained, humiliated, harassed and molested but was merely asked if she wished to make a statement concerning the allegation against her. The defendant equally stated that the student who identified the claimant never denied knowing the claimant. It is the pleading of the defendant that upon a thorough investigation from the Vetting Unit of the defendant, it was discovered that about 30 students were discovered to have illegitimately benefitted from the manipulation and falsification of results and one of them is an ex-student from Accounting Department with the name Adebara Saoban. It pleaded that on the 4^th May, 2017 the said student was invited and he confessed to his culpability in the result manipulation, he mentioned and identified the claimant and one Hammed as of the accomplices. That she was invited formally to appear before the Senior staff Disciplinary Committee on the 16^th March, 2017 where she was afforded an opportunity to defend herself and cross examined the said Adebara Saoban. That she was suspended from duty to enable the defendant investigate the matter properly. It stated that upon the conclusion of investigation the claimant was on the 13^th of February, 2017 asked to resume back to her duties but she failed and or refused to so do consequent upon which a letter of query was issued to her on the 17^th of March, 2017 which she also failed to respond to. In response to the claimant’s averment, defendant sated that as at the time this case was filed, the appeal filed by the claimant was still pending. That she was given fair hearing as all the proceedings culminating into her dismissal was in accordance with the laid down rules and law governing her appointment. The defendant averred that she was paid her salaries while she was on suspension and that it is not liable to pay any salary to the claimant after she has been validly dismissed from its employment. It urged the Court to dismiss the claimant’s claim in its entirety.

By the rules of this Court, counsel on both side filed their final written addresses. The Defendants filed it final written address dated 24/12/2018 wherein counsel on its behalf formulated two issues for Court’s determination:

Whether considering the facts and circumstances of this case, this case is not liable to be struck out and/or dismissed for want of jurisdiction.
Whether having regard to the facts, circumstances and evidence both oral and documentary led by the parties in this case; the claimant employment was not properly and legally terminated and whether the claimant’s reliefs are not liable to be dismissed in the circumstances of this case.

On issue one, learned counsel submitted that going by the facts of this case the Court does not have jurisdiction to entertain this matter on the reason that the letter of appeal dated 19^th of May, 2013 written by the claimant has not been determined by the defendant at the time of filing this suit. He stated that this suit as presently constituted is premature as the claimant has not exhausted the internal remedy/condition precedent available to her as provided for vide chapter 10.7 and 10.8 of Exhibit RS8 before rushing to Court. He cited in support the cases of Magit v University of Agric Makurdi [2005] 19 NWLR (Pt. 959) 211at 244 para E; University of Ilorin v Idowu Oluwadare [2006] 14 NWLR (Pt 1000) 751; Ojora v Agip (Nig) Plc [2014] 1 NWLR (Pt. 1387). Counsel then urged the Court to strike out this matter on the grounds argued above.

As regards issue two, learned counsel argued that it is the claimant grouse that she did not commit the misconduct for which her employment was terminated. He submitted that the proceedings of the SSDC by which the claimant was found liable of acts of misconduct cannot be a subject of an appeal before the Court, because the Court is merely to act in its supervisory jurisdiction to ensure that the procedure stipulated by law for discipline of a staff was substantially observed. He cited the case of Bamgboye v University of Ilorin [1999] 10 NWLR (Pt 622) 290 348 paras A-B and urged the Court to so hold. On counsel’s argument that the claimant was not allowed to express herself at the NSCDC and SSDC which amounted to a denial fair hearing counsel contended that from the pleadings and evidence led in support of the claimant, it is clear by exhibit U2 that she was given a fair hearing and allowed to cross-examine her accusers, therefore this assertion by the claimant cannot by any stretch be correct and hence baseless. Counsel posited that the termination of the appointment of the claimant was duly done in accordance with Exhibit R8 and Section 16 of Kwara State University Law. He stated that she was issued a notice on the 17^th February, 2017. She was invited to appear before the SSDC by a letter dated 10^th of March, 2017, suspended on the 30^th of January, 2017 and asked to resume on the 28^th of February, 2017 so that she can appear before the SSDC. He stated that applying the requirements of the law and exhibit R8, the claimants employment was terminated lawfully. He urged the Court to so hold.

It is counsel’s contention that claimant’s declaratory reliefs must fail on the grounds that she has failed to adduce cogent evidence in support of assertion that she was not allowed to defend herself and was not given a notice of misconduct leveled against her. He cited the case of Atunka v Aboki [2016] LPELR 41199 CA P 11 para A. Counsel equally submitted that reliefs 3 and 4 are bound to fail as the defendant has the requisite power to discipline and in appropriate circumstances terminate the appointment of erring staff as in this instance. He urged the Court to resolve this issue in favour of the defendant.

In response to the written submission of learned defence counsel, learned claimant counsel on the 28^th of January, 2019 filed his written address and framed two issues for determination of the Court as follows;

Whether the dismissal of the claimant from her employment with the defendant is justifiable.
Whether the claimant is entitled to the reliefs sought as contained in her statement of facts before this Honourable Court.

Learned claimant counsel arguing the two issues raised by the learned defence counsel contended that a community reading of the provision of Sections 10.6 and 10.7 of Exhibit RS8 reveals a contrast as the claimant who was not disciplined in line with Section 10.6 and not sanctioned was not in anyway conferred with the right of appeal. It is counsel’s position that the claimant in this suit was disciplined and hence exhibit RS8 did not confer on the claimant or anybody seemed to have been disciplined pursuant to paragraph 10.6 any right of appeal. Therefore, it is the contention of counsel that the argument of defence counsel is misconceived and also that paragraph 10.7 cannot operate to oust the jurisdiction of this Court. He relied on Sections 6(6) (b), 36 (1) of the 1999 Constitution as amended and the case of Asheikh v Yale [2010] LPELR 3811 CA. Counsel submitted that defence counsel argument as regards Section 10.8 of Exhibit RS8 is of no moment as the internal avenues for settling grievances or seeking redress was not followed by the defendant and also that there is an apparent omission or none inclusion of persons, body or organ to appeal to by the defendant’s employees. Learned claimant counsel also argued that before any disciplinary measure can be meted on the claimant, he ought to have been charged before a regular Court of competent jurisdiction, tried and convicted but that the defendant failed to do so, thus, making the whole processes of his trial by the Senior Staff Disciplinary Committee (SSDC) a nullity as same lack the vires to try any criminal allegation. While relying on the cases of Naja v. UBA Plc [2010] LPELR-3769 (CA); Unilorin v Oluwadare [2002] LPELR 7179 (CA) at pg 24 26 paras C-G, he urged this Court to hold that the panel so set up by the defendant to investigate and try him is incompetent to do so and also to hold that the whole process leading to his dismissal is a nullity, void and of no effect whatsoever.

On issue one, it is counsel’s submission that the dismissal of the claimant by the defendant by exhibit RS-6 is not justifiable as the procedure laid down by the statute regulating the employment of the claimant was breached. He relied on the cases of Joe Osisanya v Afribank Nig Plc [2007] 1-2 SC; Oloruntoba –Oju & ors v Abdulraheem & ors [2009] LPELR 2596 SC. Counsel stated that assuming without conceding that the defendant complied with the law and regulations contained in exhibit R8 to justify claimant’s dismissal that such allegation leveled against the claimant must first be tried by regular Court as it relates to the issue of misconduct bordering on criminal allegation. He also submitted that the entire steps taken by the defendant to justify the dismissal of the claimant is flawed as it amounts to a violation of her right to fair hearing as provided for in Section 36 (6) and 6( 6) of the 1999 Constitution supra.

Claimant’s counsel in response to defence counsel argument that the claimant could not prove her case against the defendant stated that the burden of proof is not static as in criminal case, the claimant having discharge the burden on her by credible evidence both documentary and on oath. He stated that the burden to rebut same then shifts on to the defendant. The defendant has failed to prove the claimant’s culpability of the alleged offence of criminal manipulation of student’s result. He cited the case of Adegoke v Adibi & Anor [1992] LPELR 95 SC. Counsel urged the Court to resolve issue one in claimant’s favour.

On issue two learned counsel posited that from the avalanche of evidence both documentary and on oath the claimant is well entitled and deserving of being awarded all relief sought in her favour. He also posited that by Section 19(d) of the National Industrial Court Act, 2006 it empowers the Court, to in appropriate circumstances award compensation or damages in any circumstances contemplated. He cited the case of Anthony Odiba v Tule Azoge [1998] 9 NWLR (Pt. 566) p.370 and urged the Court to grant the claimant’s claims.

The defendant on the 11^th of February, 2019 filed its reply on points of law and stated that the claimant in weak attempt to respond to the argument of the defendant on jurisdiction tried to make a misconceived difference between the word sanction from the word discipline as used in Section 10.6 and 10.7 of exhibit RS8. He stated that the claimant argued clearly in error that section 10.7 of exhibit RS8 does not confer right of appeal on the claimant on the ground that she understood the clear provision of Section 10.7 of exhibit RS8 and the purport of the appeal and on that score, she made the appeal as contained in exhibit RS7in line with Section 10.7 of exhibit RS8. Counsel submitted that exhibit 10.7 of Exhibit RS8 is a condition that must be met before court’s jurisdiction can be ignited as it puts the court’s jurisdiction on hold pending the compliance with the condition. He cited the case of Ugwuanyi v Nicon Ins Plc [2013] 11 NWLR (1366) 546 at 611-612. He therefore urged the Court to discountenance the spurious argument for the purpose of determining whether or not this Court has jurisdiction.

Counsel submitted that contrary to paragraph 5.00-5.08 of the claimant’s written submission on suspension, stated that exhibit R3 issued to her was in line with the provision of chapter 10.2 of exhibit RS8 so that the defendant can have unhindered atmosphere to investigate the matter. Counsel citing the case of Eze v Spring Bank Plc [2011] 18 NWLR (Pt 1272) 113 at 135 paras B-D stated that the argument of claimant that allegation which led to the termination of her appointment being a crime must first be determined by regular Court is not the current position of the law.

By a comprehensive consideration of the processes filed by both parties and the documents tendered in support, their respective written submissions argued by learned counsel, it is in my humble view that the issues that will best resolve this case are viz:

Whether or not this suit is competent as constituted and
Whether the Claimant has proven her case to be entitled to the reliefs sought?

In answer to issue one posed above, it is imperative I discuss some issues in contention between the parties on the ground of jurisdiction. First, Learned defence counsel by his paragraph 5.01 -5.16 of his written submission and paragraph 22 of the defendant statement of defence have argued heavily that the claimant has not fulfilled the condition precedent as stipulated for vide chapter 10.8 of exhibit RS8 Administrative Manual of the defendant, October 2015 which provided thus; “no staff shall result to litigation without first exhausting the internal avenues for settling grievances or seeking redress in the University.” It is defendant’s position that the claimant jumped the gun by running to this Court to seek redress without waiting for the outcome of the appeal by the defendant’s Governing Council. It is defendant’s position that failure of the claimant to first exhaust the provision of the condition of service has deprived the Court of its jurisdiction to adjudicate on this matter. Learned Claimant’s counsel seems to be confused with respect about the use of the word “sanction” in exhibit RS8, id est the Administrative manual of the defendant. To him, the claimant was not sanctioned before her dismissal hence she is not entitled to appeal. I must say unequivocally that the word “sanction” simply means a consequence of a misconduct or a criminal act. All the disciplinary measures listed in clause 10.6 of exhibit RS8 are all sanctions. I am in absolute agreement with the learned defence counsel that the word “sanction” connotes punishment, castigation, chastisement, suspension, demotion, dismissal termination, compulsory retirement etc. The same Oxford learners’ dictionary 7^th Edition relied on by the claimant’s counsel defines sanction amongst others as penalty. I would not want to belabor the interpretation of the word “sanction” used in exhibit RS8, it simply refers to the disciplinary measures or punishment or consequences of any act of misconduct by an employee. I therefore discountenance paragraphs 4.15 and 4.16 of the learned claimant’s counsel submission and find that the claimant as an employee has a right of appeal to the Council of the defendant, the window of which was explored by the claimant vide her appeal letter dated 19^th May, 2017. A condition precedent is one which delays the vesting of a right until the happening of an event. See the case of Atolagbe v Awuni [1997] 9 NWLR (Pt 522) 562 SC. Undoubtedly where an aggrieved party has not exhausted all the avenues as provided for under the law governing his contract/contract of employment, the Court will have no jurisdiction to entertain the suit because the condition precedent to the Court’s exercise of jurisdiction has not been satisfied. See the cases of Arulogun & ors v Aboloyinjo & ors [2017] LPELR 44076 CA; Ahmed v ABU & Anor [2016] LPELR 40261 CA. I have examined exhibit RS8 and seen that it clearly provides at Section 10.8 that “no staff shall resort to litigation without first exhausting the internal avenues for settling grievances or seeking redress in the university”. Also examined Section 10.10 of exhibit RS8 where it is provides that;

“it shall be the duty of the person by whom an instrument of removal is signed in pursuant to the foregoing provisions to use his best endeavors to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates. Every person disciplined under this provision may exercise their right of appeal as considered in this regulation”(underline mine). The claimant was on the 20^th of April, 2017 exhibit RS6 dismissed from the employment of the defendant, on the 19^th of May, 2017 she wrote a letter of appeal to the defendant to review its decision and re-instate her into its employment and on the 24^th of July, 2017 filed her claims before this Court without waiting for the outcome of her appeal. Now, what is the stipulated time frame for the claimant’s appeal to be responded to by the defendant in view of the statute of limitation which bars a person from seeking redress against a public officer three months after the cause of action arose and also what are the modalities of internal resolution put in place by the defendant differently put has the defendant set out in its conditions of service methods of resolving grievance? I find no single clause in exhibit RS8, stipulating the time frame within which the Council may consider and respond to an appeal, also discovered that the manual failed to state the grievance mechanism that may be followed by a dismissed employee. Rather paragraph 10.7 of exhibit RS8 provides for the exercise of a right of appeal within 21 days of being sanctioned for misconduct. The law does nothing purposeless, for every law there must be an intention and purpose for which it is enacted. It is trite that Law does not exist in vacuum, the defendant cannot rely or thrive on a provision that is non- existent in its conditions of service and say that this suit is premature, in that a party has not exhausted the internal remedies. I find the provision of clause 10.8 of exhibit RS8, a one sided inchoate provision, a purposeless provision which in my respectful view serves no lawful purpose but tends to overreach an employee. It is therefore in the interest of justice that I discountenance clause 10.9 of the defendant’s administrative manual and declare it as an unfair labour practice and against international best practice. Above all, I find the argument of the defendant with regards to issue of jurisdiction unmeritorious and therefore discountenanced.

The claimant in this suit has made a heavy weather that since the allegation of misconduct leveled against her borders or has an element of crime, the defendant cannot punish or discipline her unless she is tried and found guilty of the crime by a competent Court. It is the position of the law that prosecution before a Court of law in the circumstances is not a sine qua non for summary dismissal. The employer can dismiss in all cases of gross misconduct and it is not a necessary requirement under Section 36 of the 1999 Constitution as amended and no longer the law that before an employer summarily dismisses his employee from his services, under the common law or statute, the employee must be tried before a Court of law where the accusation against the employee is misconduct bordering on criminality. See P.C. Mike Eze v. Spring Bank [2011] LPELR- 2892SC. The only basic requirement is that to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. See the cases of Billie v Multi-links Telecom Ltd [2017] LPELR 41862 CA; Arinze v F.B.N Ltd [2004] LPELR 551 SC. Following from the above and contrary to the argument of the claimant, it is no longer the law that an employee must first be tried and found guilty of any alleged offence by his employer before he can be dismissed. I therefore find this argument as also lacking in merit and discountenanced. I so hold.

Next is the gravamen of this suit, it is the claimant’s claim that the purported query and her subsequent dismissal by the defendant should be declared null, void and of no effect. The defendant in response pleaded that the dismissal of the claimant from its employ was done in accordance with the conditions of service of the parties. It is not in contention that the claimant was in the employment of the defendant until 20^th of April, 2017 when she was dismissed and also not in contention, the nature of the claimant’s employment. The law in the world of work is that an employer, before dismissing its employee, must satisfy the requirements of fair hearing by following the procedure as provided for in its contract of employment binding it. It is trite that where a party is given ample opportunity to present his/her case within the boundaries of the law, he/she would have been said to have been given a fair hearing. Was the claimant in this case given fair hearing by the defendant before her dismissal? The answer to this poser would be found by going through the terms and condition of claimant’s employment, i.e. the KWASU law and the Administrative manual.

A review of the Kwara State University Law Exhibit TA7 at Section 16 provides for removal and discipline of staff thus;

“16 (1) if the Council has reason or good cause to believe that any person who is employed as a member of the staff of the University, other than the vice chancellor should be removed from office or employment, the Council shall;

Give notice of those reasons to the members in question; and
Afford the member an opportunity of making representation in person on the matter to the Council.
If the member of staff in question or any three members of the Council so request within the period of one month from the date of the notice, the Council shall make arrangement
For a joint committee of Council and to Senate to investigate the matter and to report on it on the Council; and
For a Committee of the Council and the Senate to investigate the matter where it relates to an academic matter and to report on it to the Senate which will then report to the council; and

iii. For the member of staff in question to be given an opportunity of appearing before, and being heard by, the investigating committee with respect to the mater

If the Council, after due consideration of the investigation committee’s report is satisfied that the member be removed as aforesaid, the Council may cause the removal of the member in writing.”

Also Kwara State University, Malete Administrative Manual, October 2015 Exhibit RS8 at Section 9 which provides for staff discipline for misconduct and paragraph 10.9 provides for the Removal of and Discipline of Academic, and Senior Non-Teaching Staff thus:

If it appears to the Council that there are reasons of believing that any person employed as a member of the Academic or Administrative or Professional staff of the University, other than the Vice Chancellor, should be removed from his office or employment on the ground of misconduct or inability to perform the function of his/her office or employment the council shall-
Give notice of those reasons to the person in question; afford him an opportunity to make representation in person on the matter to the council
If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangement.
For a joint committee of Council and to Senate to investigate the matter and to report in it on the Council; and

(ii)For the person in question to be afforded an opportunity of appearing before, and being heard by the investigating committee with respect to the mater; and if the Council, after considering the report of the investigation committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directives of the Council”.

Also paragraph 10.2.8 provides that “An employee who is confirmed in his appointment may be dismissed by the University for Misconduct but no such employee shall so be dismissed until he has been afforded fair hearing in respect of the allegation of misconduct. Where it is considered necessary that an allegation of misconduct is sufficiently serious to attract dismissal, a member of staff accused of such an act of misconduct shall be brought before the appropriate staff disciplinary committee of council.”

It is obvious from the provisions of exhibit TA7 and RS8 that the procedure to be followed by the defendant before dismissing the claimant from its employment on the allegation of misconduct is the issuance of query to her and also affording her an opportunity to make representation in person on the matter to the Council, or an investigatory committee set up for that purpose is called upon to investigate the alleged misconduct. After the consideration of any representation, the Council if satisfied that she should be removed, then it may so do by an instrument in writing signed under/by the directive of the Council. I wish to emphasis that all the above procedure enunciated by the above Statute and Rules are to ensure fair hearing in the disciplinary procedure of its officers as it is a requisite requirement of justice sum up to ensure that parties are given occasion to be heard and present their cases as provided for in the 1999 Constitution as amended either in Court or in extra judicial or administrative panel. See the cases of FMBN & Anor v Owodunni [2018] LPELR 44556CA; Chief J.L.E Duke v Government of Cross-River State & ors [2013] 1 NWLR (Pt. 1356) 347; Bassey v AG Akwa Ibom State & ors [2016] LPELR 41244 CA; Nwokocha v A.G of Imo State [2016] LPELR 40077 SC. It is the law that where an employment is protected by statute, the process of removal that is dismissal in this instant case must be in compliance with the extant statute governing the employment and a breach of any statutory provision renders the process void and of no effect. See the cases of Nasarawa State University & anor v Nekere [2018] LPELR 44550 CA; Obianwuna v. NEPA [2016] LPELR 40935CA. It is deducible from the documents tendered in this Court that on the 6^th of February, 2017, a Report from the Deputy Chief Safety Officer & Head, Vetting Unit was addressed to the Vice Chancellor of the defendant alleging the claimant of falsification of results and other illegal acts exhibit TA5. The claimant on the 17^th of February, 2017 exhibit TA was issued a query and having been previously suspended on the 30^th of January, 2017 on the purported allegation of manipulation of results for student in addition to other illegal activities. The claimant did not respond to the query. On the 28^th of February, 2017 she was issued a directive to resume duty and respond to queries exhibit RS4 which she responded to on the 10^th of March, 2017 denying all allegation put against her. She was subsequently invited vide a letter dated 10^th of March, 2017 exhibit RS5 to appear before the defendant’s Senior Staff Disciplinary committee on the 16^th of March, 2017 and on the 20^th of April, 2017, vide exhibit RS6 she was dismissed from the defendant’s employment. It is obvious from all stated supra coupled with the evidence on record that claimant was given fair hearing, given the fact that she was issued a query and an answer was elicited from her and she was equally invited before the SSDC, where she was given the chance to state her defence as seen in exhibit U1. The claimant even corroborated the fact that she was given the opportunity to cross-examine the witnesses but she refused to so do. She was equally given opportunity to confront her accusers as evinced in exhibit U1. She cannot thus complain of breach of fundamental right to fair hearing. It is trite that the principle of fair hearing is complied with in an employment with statutory flavour when all laid down procedures in the statute governing such employment has been duly followed or complied with. It is in view of the following, that I find that claimant’s dismissal from the employment of the defendant is in accordance with the provision of KWASU law and the Administrative manual, I therefore resolve issue two in favour of the defendant and hold that dismissal of the claimant by the defendant is lawful.

It is claimant’s claim that her employment with the defendant is still subsisting. It is settled that in a statutory employment an employee whose appointment is terminated/dismissed lawfully cannot be reinstated, no matter how desirable that may be. See the decision of the Court of Appeal in Obo v. Comm. of Edu. Bendel State [1993]2NWLR. (Pt.273) 46 @ 58. I found earlier that claimant’s dismissal is lawful, it is in consequence that I find and hold that her relief (b) fails.

The claimant is also seeking for payment of all salaries, allowances and other benefit he has been entitled from the 30^th day of January, 2017 being the date of her suspension up till 20^th day of April, 2017 being the date of her dismissal and subsequently until the determination of this suit. With regards to the claimant’s claims from the 30^th day of January, 2017 being the date of her suspension up till 20^th day of April, 2017, by Section 16 (4), (5) and (6) of exhibit TA7 gives the defendant the power to suspend the claimant for a good cause and that upon suspension she shall be entitled to half pay and the Council shall before the expiration of a period of three months after the date of such suspension consider the case against the person and come to a decision. In this instance it is on record that the claimant was suspended on the 30^th of January, 2017, however by exhibit TA4 claimant’s payslip for the month of February and March, 2017 it is equally noted that she was paid the sum of N53, 005.90 as her salary for the months which is her half salary. Therefore, I find and hold that the claimant’s claim in this respect also fails. With regards to her claims for entitlement from 20^th day of April, 2017 when she was dismissed, Section 10.2.9 of Exhibit RS8 provides that;

“An employee dismissed for misconduct shall not be eligible for any terminal benefits but shall forfeit all privileges attached to his appointment.”

I have held supra that the dismissal of the claimant by the defendant is in accordance with her terms of employment and thus lawful. I equally dismissed her claim for reinstatement and she has failed to substantiate her claim for salaries and entitlement from the time of her dismissal till date. It is on this premise that discountenance her claim for payment of salary and entitlement.

Regarding the claimant’s claim of N20,000,000.00 (Twenty Million Naira) as aggravated and/or exemplary damages for career stagnation or retrogression, financial misfortune, agony, unlawful detention, harassment and emotional distress caused by the defendant on the footing of the unjustified suspension and her dismissal by the defendant. There is nothing on record to prove that claimant is entitled to this claim. It is the law that exemplary damages are usually punitive in nature and awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as in where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Exemplary damages must be claimed and proved before they can be awarded. See the cases of Talabi v Law Union & Rock Insurance Plc [2016] 64 NLLR (Pt 227) 374; Odogu v A.G Federation [1996] 6 NWLR (Pt456) 508. There is nothing on record to illustrate/convince the Court that claimant is so entitled to this claim as all the grounds upon which this claim may rest upon fail. It is consequent upon this that I find no merit in the claimant’s claim for exemplary damages and thus dismiss same.

Summarily and for the avoidance of doubt I hold that claimant’s claims fail in its entirety. Consequently, claimant’s case is dismissed.

No order as to cost.

Judgment is accordingly entered.

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge