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National Industrial Court

MRS. OGECHI AGNES UBANI -:VS- ABIA STATE POLYTECHNIC & 2 Ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA

DATE: 2ND MARCH 2020                                                SUIT NO: NICN/OW/17/2017

BETWEEN:

MRS. OGECHI AGNES UBANI                                                                                  CLAIMANT

AND

  1. ABIA STATE POLYTECHNIC
  2. THE RECTOR, ABIA STATE POLYTECHNIC                                                DEFENDANTS
  3. THE COMMISSIONER FOR EDUCATION ABIA STATE

REPRESENTATION:

  • C. N ENYERIBI; F. I. NWAOGWUGWU FOR THE CLAIMANT
  • E.C IROANYA FOR THE 1ST AND 2ND DEFENDANTS
  • 3RD DEFENDANT was not represented.

 JUDGMENT:

  1. The facts of this case briefly are that the Claimant was an employee of the 1st Defendant as an Executive Officer/Chief Cashier purportedly responsible inter alia for the collection of proceeds of sell of textbooks to students of the institution within the Centre for Consultancy Services (C.C.S). Accordingly, the Claimant’s appointment was terminated in 2017 as a result of allegations of misappropriation of funds. Unsatisfied with the purported termination, she filed this action in 2017 contending that a fair hearing had not been accorded her before she was terminated and therefore the termination must be declared null, void and of no effect and to thereby reinstate her with full entitlements and privileges and an award of the sum of N20M.

 

  1. Consequently, this suit was filed on the 28/03/2017 by a complaint accompanied with other originating processes, wherein the Claimant claims against these Defendants as follows;
  2. A declaration that the Defendants breached the Claimant’s right to fair hearing in conducting the purported hearing that led to the unlawful termination of the Claimant’s appointment with the 1st Defendant;
  3. A declaration that the purported termination of the Claimant’s appointment with the 1st Defendant is illegal, null, void and of no effect;
  4. An order directing the Defendants to reinstate the Claimant with full entitlements and privileges of her office;
  5. N20,000,000.00 (Twenty Million Naira) damages for wrongful termination of the Claimant’s appointment.

CLAIMANT’S CASE

  1. The Claimant’s case started de novo before this Court on 6/11/2018 on which day she testified on her behalf as CW1 relying on her written deposition dated 28/03/2017 and her additional deposition of 8/2/2018 in response to the Defendants’ Statement of Defence. A total of 8 documents were tendered through her and marked as Exhibits CW 1 – 8.  She was duly cross examined by Defendants’ Counsel on the same day whereupon she closed her case.

 

  1. The documents tendered by the Claimant are:
  2. Exhibit CW1 – Letter of temporary appointment dated 26/05/2009
  3. Exhibit CW2 – Letter of regularization of appointment dated 07/06/2010
  4. Exhibit CW3 – Letter of confirmation of appointment dated 18/07/2013
  5. Exhibit CW4 – Letter of promotion dated 11/09/2012
  6. Exhibit CW5 – memo for notice of Committee meeting dated 10/02/2016
  7. Exhibit CW6 – Letter of termination of appointment dated 27/02/2017
  8. Exhibit CW7 – Abia State Polytechnic, Aba Senior Staff conditions of service.
  9. Exhibit CW8 – Letter for the acceptance of Appointment dated 01/06/2009.

 

DEFENDANTS’ CASE

  1. The 1st and 2nd Defendants who had filed a joint statement of defence dated 18/10/2017, opened their defence on the 11/02/2019 and one Edwin Nwanevu testified as DW1. He adopted his deposition dated 20/4/2018. A total of 4 documents were tendered through him and marked as exhibits DW1 – 4. He was duly cross examined by the Claimant’s Counsel on the same day.

 

  1. The documents tendered by DW1 are:
  2. Exhibit DW1 – Certified Copy of Abia State Polytechnic Bin Card dated 13/6/2018.
  3. Exhibit DW2 – Certified Copy of Minutes of Meeting of the CCS Committee on Book sales for 1st Semester 2014/2015 dated 9/9/2015.
  4. Exhibit DW3 – Certified Copy of Memo dated 26/08/2015.
  5. Exhibit DW4 – Memo to Mrs. Ogechi Ubani dated 10/09/2015.

 

  1. The Defendants continued their defence by fielding in a second witness, C. S. Mpamugo, who testified as DW2. He adopted his deposition of 18/10/2017 but filed on 20/03/2018. He tendered 1 document marked exhibit DW5. He too was duly cross examined by the Claimant’s Counsel on the same day whereupon they closed their case.

 

  1. The Document tendered by DW2 is marked Exhibit DW5 – Report of Committee to investigate alleged indebtedness of Staff to CCS.

 

  1. Subsequently, both Counsel filed their respective final addresses and adopted same on 20/1/2020. This case was adjourned to today for pronouncement of this here judgment.

1ST AND 2ND DEFENDANTS’ FINAL SUBMISSIONS:

  1. The Defendant’s final written address is dated 3/7/2019 and filed 8/7/2019, wherein a sole issue was raised for determination thus: “What are the consequences of the Claimant’s Act of misconduct/insubordination and or willful disobedience to lawful authority?”

 

  1. In arguing his lone issue formulated, learned Counsel first submitted that the Claimant on the 26/5/2009 was offered a temporary appointment with the 1stDefendant and that paragraph 2 of the said letter of appointment admitted in evidence before this court as Exhibit C1 provides that: “The appointment will be governed in all respect by the Polytechnic Senior Staff Conditions of Service, a copy of which will be made available to you soon”.

 

  1. It was further submitted that the Claimant accepted the offer of appointment as made to her through exhibit C8. Counsel stated that it was undeniable that there existed a contract of employment relationship between the Claimant and the 1stDefendant as regulated by the Senior Staff Conditions of Service (Exhibit C7) of the 1st Defendant institution which was also front loaded and tendered by the 1st and 2nd Defendants in this case.

 

  1. Counsel debated that the word “misconduct” was defined in the senior staff condition of service to mean among others conducts such as corruption, dishonesty, fraud, falsification or suppression of records, abuse of office…insubordination etc. He relied on the definition given by the Court in NWOBISI V. ACB LTD (1995) 6NWLR (PT.404) 658 where it held that – “Gross misconduct has been identified as a conduct that is grave & weighty character as to undermine the confidence which exist between an employee and employer”. He thus argued that under labour law, misconduct is what the employer considers to be a misconduct — OYEDELE V. IFE U.T.H (1990) 6 NWLR (PT. 155) 194 C.A.

 

  1. The learned Iroanya further submitted that the conditions of service regulating the contract of employment between the Claimant and 1stDefendant institution states clearly in chapter 18 the disciplinary measures to be applied in misconduct cases which include suspension, termination, dismissal etc.

 

  1. It was thus argued that the Claimant misconducted herself and was in breach of the conditions of service with the 1stDefendant institution when even on her own, she not only allegedly contradicted herself but also admitted the misconduct as seen in paragraphs 11, 12, 13, 14, 15,16,17,18 and 19 of the statement of facts, in this suit.

 

  1. Accordingly, that as in paragraph 11 of the statement of fact and paragraph 12 of Claimant’s written deposition, the Claimant averred that, there was no account reconciliation for the first Semester of 2015 and that sales for the second Semester ended between October and November the same year. Whereas in paragraph 14 of her statement of fact and paragraph 15 of her written deposition, she admitted that after the reconciliation of the whole accounts, it was discovered that no money was missing. Curiously, on the 11/02/2019 the Claimant purportedly under cross examination, maintained there was no reconciliation of any account for sale of books for that session.

 

  1. Learned Counsel stated further that the Claimant was well informed of her act of misconduct/indebtedness to the 1stDefendant sometime in 2015 even by her own averments and admissions as contained in paragraphs 12, 13 & 15 of her statement of facts likewise as seen in paragraphs 13, 14, 16 of her primary deposition in this suit.

 

  1. He stated that this Claimant was queried by her erstwhile Head of Department one Dr. C. C Adindu on the 26/8/2015 (exhibit D 3 (a) and (b) tendered in evidence in this suit). Again, that during the meeting of the CCS Committee on Books Sales reconciliation held on Wednesday 9/9/2015 (1stsemester of 2014/2015), the Claimant was in attendance alongside other CCS staff where again the issue of her indebtedness/misconduct was extensively discussed. The said report was accordingly tendered as exhibit D2 before this Court). The Claimant was again officially informed of her financial indebtedness/gross misconduct via a memo dated 10/9/2015 and titled “RE-BOOK SALES RECONCILIATION REPORT” signed by the same Dr. C.C Adindu wherein certain official directives was given (all tendered in evidence in this suit).

 

  1. It was submitted further that all her indebtedness and alleged acts of misconduct were communicated effectively to the Claimant and that she admitted to having been aware of her indebtedness to the CCS. Counsel urged me to see the REPORT OF THE COMMITTEE TO INVESTIGATE ALLEGED INDEBTEDNESS OF STAFF OF CCS dated 26/07/2016, particularly pages 11-12, paragraph 0.7.

 

  1. The learned Defence Counsel argued that having established the various contradictions in her evidence, it is both elementary principle of law and trite that the Claimant’s claim should be dismissed with punitive costs — NSIEGBE & ANOR V. OBINNA MGBEMENA & ANOR (2007) 10 NWLR (PT. 1042) 362. In ISAAC JITTE & ANOR V. DICKSON OKPULOR (2015) LSELR – 25683 (SC), the court accordingly held that“facts already admitted are no longer issues between the parties”. He impressed on the Court to hold that the consequences of the Claimant’s act of insubordination or willful disobedience to lawful authority is “TERMINATION” which measure was accordingly justly meted out to this Claimant by the Defendants — NEW NIGERIA NEWSPAPER LIMITED V. MR. FELIX ATOYEBI (2013) NGSC 2 (19 April 2013).

 

  1. In conclusion, Counsel submitted that the 1stand 2nd Defendants have shown that the Claimant misconducted herself while in the service of the 1st Defendant and same was brought to her knowledge and that she was given both opportunity to correct her ignominious ways including a fair hearing to explain or respond to accusations which she elected to willfully disregard — IMONKE V. UNITY BANK PLC (2017) 12 NWLR PT 1262 pages 624- 649, EZE V. SPRING BANK (2011) 18 NWLR PT. 1278 P. 113. He urged finally that the claims as endorsed on the statement of facts are unfounded, unmeritorious and lack merit as the termination remains valid and ought to be dismissed.

CLAIMANT’S FINAL SUBMISSIONS:

  1. The Claimant’s final written Address is dated 23/09/2019 but filed on 27/09/2019. Within, three two issues were raised for determination thus:
  2. Whether the Defendants did not breach the Claimant’s right to fair hearing in conducting the investigation that led to the purported dismissal of the Claimant?
  3. Whether the Defendants have successfully shown that the Claimant appropriated money entrusted in her care?
  4. Whether the termination of the Claimant’s employment is not void and illegal?

 

  1. In arguing his issue number 1, learned Counsel to the Claimant submitted that the Law regulating the dismissal/termination of a non-academic member of senior staff of the 1stDefendant is the Abia State Polytechnic (Law Cap.15, 2005,) Section 12 (4) of which provides inter alia that, if it appears to the Council that there are reasons for believing that any member employed as a confirmed member of the non-academic senior staff of the polytechnic should be removed from his office or employment on ground of misconduct or for failure or inability to perform the functions of his office or employment, the council shall – (a) give notice in writing of those reasons to the person in question; (b) require the person in question to submit his defence against the accusation in writing to the appropriate disciplinary committee. In sub section (7), if the Council, in considering the report of the disciplinary committee, is of the opinion that the person concerned should be removed, the following procedure should be adopted: (a)… (b)… (c) a resolution to remove the person concerned shall be passed by two – thirds majority of members present and voting; (d) an instrument of removal shall be signed by the Chairman on behalf of the council removing the person concerned.

 

  1. It was thus canvassed that under the said Abia State Polytechnic, Aba Senior Staff Regulations, Procedure and Conditions of Service, “misconduct” is defined to include fraud. Accordingly, from the above reproduced subsections, there ought to be a notice in writing wherein the allegations against the Claimant are clearly stated. The notice must also emanate from the Council, and the Claimant’s response to the allegations must also be in writing. That contrarily, on 11/2/2019, DW1 during cross examination as to whether there was a notice in writing from the Council to the Claimant, answered that he did not know. Accordingly, DW2 on his part with respect to the same issue was categorical and emphatic in his answer when he stated during cross examination on 20/5/2019, that there was no notice in writing from the Council to the Claimant. In a matter of termination or discipline under employment with statutory flavour, the procedure laid down in the applicable statue or regulations must be religiously followed as any breach would render the exercise null and void, argued learned Counsel. He cited NASARAWA STATE UNIVERSITY & ORS V. SAMUEL BETERE NKERE (2018) LPELR-44550.

 

  1. It was opined that no query was issued to the Claimant and the Defendants having stated otherwise, have the burden to establish that fact. Accordingly, they failed to establish that the Claimant was ever queried with regards to the allegations made against her or that she responded to the said query as required by her under the terms and conditions of service. Or was it issued in 2010 and Claimant defiantly refused to respond, questioned the learned Counsel. Accordingly, during cross examination of the Claimant the following transpired:
  • Question – You were issued a query by Mr. Onyekwere?
  • Claimant – NO
  • Question – See this document.
  • Claimant – I don’t know anything about it.
  • Question – Who is Dr. C.C Adindu?
  • Claimant – He is my HOD.
  • Question – Had he ever given you a query or issued you statement about your indebtedness to CCS?
  • Claimant – No
  • Question – You had received so many queries since your employment with the Defendant leading to your demotion?
  • Claimant – it is not true.

 

  1. That Mr. Edwin Nwanevu (DW1) in corroborating the position of the Claimant that no queries were issued to her stated in his cross examination on 11/2/2019 as follows:
  • Claimant’s Counsel – It is the practice of the institution that all documents are to be acknowledge by the recipient?
  • DW1 – Yes. A staff is expected to acknowledge.

 

  1. It was thus submitted that from the above it is obvious that if the Claimant was issued with queries there ought to be a copy evidencing acknowledgement by the Claimant and also the written response of the Claimant which must be produced before the Court. The implication of the absence of a document evidencing acknowledgment of receipt of the said queries, and her written responses to the said queries is that no queries were issued to the Claimant. Counsel urged this Court to so hold.

 

  1. It was further argued that the second aspect of the principle of fair hearing breached by the 1stand 2nd Defendants is that expressed in by the Latin Maxim as “Nemo Judex in Sua Causa” – meaning one cannot be a judge in his own case. In paragraph 15 of the Claimant’s Statement of facts she averred that Mr. Mpamugo threatened to deal with her. In paragraph 13 of her statement of facts she averred that Mr. Mpamugo is the owner of the book the Claimant was alleged to have sold and appropriated the money. See also paragraphs 17 and 18 of the Claimant’s statements of facts.

 

  1. It was also submitted that during cross examination of Chief C.S Mpamugo (DW2) on 20/5/2019 the following transpired.
  • Claimant’s Counsel: – You chaired the Committee that allegedly indicted the Claimant?
  • DW2: – Yes
  • QUESTION – Your book was the one which the Claimant was alleged to have sold and appropriated the money?
  • DW2 – Yes

 

  1. Accordingly, from the above it is clear that Chief C.S Mpamugo (DW2) sat as a judge in his own case in breach of the principle of fair hearing – ORUGBO V. UNA (2002) 16 (PT. 792) 175 where the supreme Court held that “the fair hearing principle entrenched in the constitution is so fundamental in the judicial process of administration of justice that the breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduct” – see also CEEKAY TRADERS LTD V. GENERAL MOTORS LTD (1992) 2 NWLR (PT.222) 132; UNTH V. NNOLI (1994) 8 NWLR (PT. 363) 376.

 

  1. Also, in UNICAL V. AKIN FUNDE (2013) 3 NWLR (PT. 1340), the Court held thus “the right to fair hearing is a fundamental right which is guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria, 1999, and its breach vitiates the whole proceedings” see also F.R.N V. AKABUEZE (2010) 17 NWLR (PT. 1223) 525; PAN AFRICAN INTERNATIONAL CORPORATION V. SHORELINE LIFTBOATAS LTD (2010) 6 NWLR (PT. 1198) 98.

 

  1. Learned Counsel to the Claimant further contended that the third aspect of fair hearing breached is that the Claimant was not allowed to present her account. Accordingly, from exhibit D5 (on pages 11 and 12), the Claimant was directed by the Committee to get back to her Accountant and get it sorted out. Yet again, from the same exhibit D5, there was no other subsequent Committee sitting before the Committee which was Chaired by Mpamugo (DW2), hurriedly indicted the Claimant without even allowing her to present her account which was accordingly likely to exculpate her of the allegation. When Mpamugo (DW2) was confronted with exhibit D5, he accordingly admitted that no Committee sat after the Claimant was asked to return to account on the next sitting but however maintained that the Claimant returned with others.

 

  1. He further submitted that it is now a hornbook principle of law that no oral evidence can be relied upon to contradict, vary, or alter documentary evidence tendered – OWOEYE V. OYINLOLA (2012) 15 NWLR (PT.1322) P.84. Learned Counsel canvassed that assuming the Claimant returned and presented her account, the question would have been why then did the Defendants craftily detach this fact from Exhibit D5? The obvious answer is that the Claimant’s account would have shown that after reconciliation of accounts, no money was missing as averred in paragraph 14 her statement of facts. Therefore, by section 167 (d) of the Evidence Act 2004, evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it. See UBA V. IBHAFIDON (1994) 1 NWLR (PT. 318) 90 @ 119.

 

  1. That by Section 167 (d) Evidence Act which presumes the party withholding evidence likely to know same shall be detrimental against him if otherwise produced, must be applied here in that DW2 who claimed that the Claimant came back to the Committee and presented her account nevertheless withheld the aspect of the document establishing her innocence presumably because if it was produced, it would have been unfavourable to the Defendants as it would have shown that the Claimant never appropriated any money belonging to them.

 

  1. Learned Counsel recapitulated his issue 1 as follows:
  2. There was no notice in writing to the Claimant containing the allegations against her;
  3. The Claimant’s defence was never put in writing;
  4. Mr. Mpamugo (DW2) sat as a judge in his own case;
  5. No query was issued to the Claimant;
  6. The Claimant was not allowed to present her account reconciliation; and
  7. Assuming the Claimant was allowed to present her account, the Defendants withheld such evidence.

 

  1. He therefore urged the Court to hold that the Claimant’s right to fair hearing was breached, and to nullify the entire exercise carried out by the Defendants leading to her termination.

 

  1. In arguing his issue number 2, the Claimant’s Counsel submitted that the Defendants failed woefully in proving that the Claimant embezzled the money she realized from book sales. Accordingly, the Defendants’ allegation which is fraudulent in nature must be proved beyond reasonable doubt. That the Defendants stated in Exhibit D2 page 3c as presented by the Defendants that the Claimant failed to remit the sum of N175, 480.00. Although DW1 in his evidence in chief said the Claimant did not remit N175, 280.00, but in exhibit D5, particularly at page 22, the Defendants stated that the Claimant failed to remit the sum of N167,780.00. How then did the Defendants arrive at these contradictory figures, questioned learned Counsel? How many books did the Claimant sell? What is the unit price for each of the books? These questions ought to have been answered by the Defendants and failure to answer them is accordingly fatal to the Defendant’s case. It is therefore not sufficient to allege that the Claimant failed to remit some money realized from the sales of books as the Defendants are under legal duty to prove with precision how they arrived at the figures. Exhibit D1 is a worthless document accordingly as there was no link between exhibit D1 and the Claimant.

 

  1. It was further submitted that the Defendants did not place before this Court the account presented by the Claimant. DW1 in his evidence said the Claimant sold 2,641 books without specifying the unit price of each book and the total amount the Claimant ought to have remitted. From the investigation report the Claimant was not allowed to present her account. Most importantly, is the fact that from the Committee’s interview of the Claimant as shown in pages 11 and 12 of exhibit D5, the Claimant was not indicted. Why did the Defendants’ Committee recommend the Claimant’s suspension, questioned learned Counsel?

 

  1. It was also argued that during his cross examination, DW1 denied even the obvious when contrary to exhibit D5 (page 12 therein), he said that the Committee never referred the Claimant back to him for reconciliation whereas DW2 and exhibit D5 state that the Claimant was referred back to DW1 for reconciliation of account. DW2 on his part during cross examination stated that the Claimant increased the price of the textbooks from N1,160 to 1400 and kept to herself the difference of N240 for each book sold. DW1 said the Claimant sold a total of 2,641 books. Assuming that the Claimant sold each book at N1,400 against N1,160, the calculation will be 2,641 books sold times N1,400 which is equals to N3,697,400. While in exhibit D3 (b) the Claimant is stated to have sold books totaling N5, 904,330.00. Counsel said that it was curious how N1,400 times 2,641 equals to N5, 904,330.00. The Defendants’ case is accordingly riddled with material contradictions, inconsistencies and discrepancies. As such, the Court cannot pick or choose the version of the Defendant’s evidence to accept or reject. The effect is that the Defendants led no evidence in prove of their allegation that the Claimant perpetrated fraud or failed to remit some money to the Defendant – See MTN NIG. COMM. LTD V. HANSON (2018) ALL FWLR (PT. 945) 826 SC, the Court held that “contradictory statement is an affiliation of a contrary version of what was earlier stated or spoken, and even then, it must be on factual point in issue in controversy or contention between the parties or must be materials to the fact in issue”. That on what amounts to inconsistencies in evidence of a party, the same Court in MTN NIG. COM. LTD V. HANSON (SUPRA) stated that “the general rule is that where the witness is inconsistent in his evidence, the Court cannot pick and choose which aspect of his evidence to disbelieve”. Counsel urged the Court to resolve issue number 2 in favour of the Claimant.

 

  1. On issue number 3, learned Counsel to the Claimant submitted that the Defendants illegally terminated the Claimant’s employment with them. Based on the submissions of DW2 during cross examination wherein he stated that the Committee never recommended for the termination of the Claimant’s employment but for the Claimant to be suspended for 3 months – See paragraph 13 of page 21 of exhibit D5 which corroborates DW2’s position. Accordingly, section 117 (a) of the Abia State Polytechnic Senior Staff Conditions of Service cited in Exhibit C6 which was utilized to terminate the Claimant’s appointment, deals with Suspension as a disciplinary measure. For emphasis, that section 117 (a) of Exhibit C7 provides as follows:“Whenever, in the opinion of a Head of Department misconduct which is of such nature as not to warrant dismissal has been committed by an employee, the Head of Department concerned may recommend through the Registrar to the committee that the employee be suspended without pay for a specific period”.

 

  1. Learned Counsel therefore concluded by stating that the Claimant is entitled to damages for the injury suffered as a result of the illegal termination of her employment and urged this Court to grant the Claimant’s reliefs.

COURT’S DECISION:

  1. After careful perusal of all the processes filed in this suit, the proceedings as well as arguments/submissions canvassed by either Counsel to the parties, the following four issues are formulated for determination.
  2. Whether the Claimant’s termination was done in accordance with the provisions of the law governing the employment relationship between her and these Defendants;
  3. Whether the Claimant’s right to fair hearing was contravened;
  4. Whether the Claimant’s termination by the Defendants is null and void; and
  5. Whether the Claimant is entitled to damages?

 

  1. Before I delve into considering the issues outlined above, there is need for a quick look at the following facts in the instant suit which are not in contention.

 

  1. Generally, a Claimant who seeks a declaration that the termination of his appointment was wrongful or illegal must prove the following material facts. (a) that he is an employee of the defendant; (b) the terms and conditions of his employment; and (c) the way and manner and by whom he can be removed. In this country there are three types of employer/employee relationships with different consequences, viz: (1) Under the common law, where in the absence of a written contract, each party could abrogate the contract on a week’s or month’s notice, or on payment of wages for a week or month or whatever the agreed period for payment of wages was. (2) Where there is a written contract of employment between an employer and employee, in such a case the court has a duty to determine the rights of the parties under the written contract. (i) Public Servants – where their employment is provided for in a statute and/or conditions of service or agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599. (ii) Public Servants – as in the civil service, such as in the case of Shitta Bey v. Federal Public Service Commission (1981) 12 NSCC 28; (1981) 1 SC 40.” Per GALADIMA, J.C.A. Ujam v. I.M.T. (2007) 2 NWLR (Pt.1019) (Pp.16-17, paras. G – F).

 

  1. As established from the facts and evidence adduced, it is not in contention that this Claimant was a confirmed employee of the Defendants as evidenced from exhibits C1, C2, C3 and C4 tendered by her. It is also evident that the Abia State Polytechnic Law Cap 29, 1992 frontloaded in this suit by the Claimant (and not the Abia State Polytechnic Law (Cap. 15, 2005) cited by the Claimant’s Counsel which was neither frontloaded nor tendered as exhibit in this suit), and the Abia State Polytechnic Senior Staff Conditions of Service (Exhibit C7) are respectively the law and regulation governing the employment relationship between this Claimant and 1stDefendant institution. Ultimately, in determining any issue in respect of this Claimant’s employment, the institution’s law as well as Exhibit C7 shall serve as the sources to rely on. Therefore, it is safe to conclude that the Claimant’s employment is one that is statutorily flavoured – OLANIYAN V. UNIVERSITY OF LAGOS (NO.2) (1985) where it was held that “an employment with a statutory flavour arises where the body employing the man is under some statutory or other restriction as to the kind of contract which it makes with its servants or the grounds on which it can dismiss them”.

 

  1. It is also the law that statutory flavoured employments are protected by statute and any person occupying an office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee the procedure laid down by such statute must fully be complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void.

 

  1. It is curious to note that the 3rdDefendant named in this suit that is “THE COMMISSIONER FOR EDUCATION ABIA STATE” is not a known person in law and although this issue was never raised in the course of this suit, it is important to do so suo motu for the purpose of making an order to strike out that name for the given reason.

 

  1. Moving on, in deciding the instant suit I must consider whether the provisions in respect of the termination of the Claimant’s appointment as laid down in the Abia State Polytechnic Law as well as in exhibit C7, were duly complied with by the Defendants which happens to be the 1stissue raised for determination by this Court.

 

  1. The Claimant’s contention is that her employment was not terminated in consonance with the provisions of the Abia State Polytechnic Conditions of Service (Exhibit C7) and her right to fair hearing was infringed upon by the investigative Committee not giving her another chance to appear before them to present her reconciled account, therefore the termination of her appointment by the Defendants is to be declared null and void and of no effect.

 

  1. The Abia State Polytechnic Law (Cap. 29, 1994) under Section 12 (4) and (7) provide thus:

(4) – if it appears to the Council that there are reasons for believing that any member employed as a confirmed member of the academic senior staff or non-academic member senior staff of the Polytechnic should be removed from his office or employment on ground of misconduct, failure, or inability to perform the functions of his office or employment, the Council shall –

(a) give notice in writing of those reasons to the person in question;

(b) direct the Rector to set up a disciplinary committee which may be presided over by himself, to investigate the alleged misconduct…and report its findings to the Council;

(c) require the person in question to submit his defence against the accusation in writing to the appropriate disciplinary committee.

(7) if the Council, in considering the report of the disciplinary committee, is of the opinion that the person concerned should be removed, the following procedure should be adopted:

(a)…                                                                                                   

(b)…

(c) a resolution to remove the person concerned shall be passed by two – thirds majority of members present and voting;

(d) an instrument of removal shall be signed by the chairman on behalf of the council removing the person concerned.

  1. Under Section 32 of Chapter 6 of the Abia State Polytechnic, Aba Senior Staff Conditions of Service (page 8), the Polytechnic may in writing, terminate a regular or contract employment anytime subject to three months’ notice or payment of three months’ salary in lieu of notice, subject to regulation in Section 40. In section 40, subject to the provisions of Section 41 below, an employee may be removed either by termination or dismissal on any of these reasons a) grave misconduct, especially fraud and moral turpitude, etc. Under Section 41, a member of staff shall not be terminated on grounds a), b), or c) unless he has been given adequate opportunity of making representations in person on the matter before the Council or a body duly appointed by it.
  2. Apparently in compliance with the above provisions of these statutes, the Defendants submitted Exhibit D3 (a) and (b) which are query letters in the form of an Internal Memo dated 26/8/2015 informing the Claimant of her indebtedness as a result of the shortage from sales purportedly made by her in the sum of N31,920.00, and a previous letter of query dated 12/4/2010 which questioned her absence from work on the said 12/4/2010 (that same day) respectively. Also, exhibit D4 is another Memo dated 10/9/2015 titled RE: SALES AND RECONCILIATION REPORT stating that the amount discovered from shortage of Claimant’s sales was N175,480.00 and thus directing her to refund the said sum within two weeks of receipt of the said letter.
  3. Obviously, there is evidence of query letters issued to the Claimant in respect to the debt allegedly owed by her from the purported proceeds of the books she sold to students as gleaned in exhibits D3 (a) and D4 both of which inarguably satisfy Section 12 (4) (a) of the Polytechnic Law in spite of the Claimant’s vehemence that no query was ever issued to her. She claimed that those letters tendered by the Defendants were fabricated and that they failed to prove the fact that she actually received those queries.
  4. The position of the law is that he who asserts must prove. Therefore, since the Defendants claimed to have issued the Claimant with letters of query, the burden was upon them that they did so in satisfaction of the requirement of the law mandating them in that regard. I find that they undeniably, issued two letters of query dated 26/8/2015 and 10/9/2015. The Claimant however canvassed that those letters tendered as Exhibits D3 (a) and D4 were not acknowledged by her and so they cannot be deemed to have been served on her in an official capacity in accordance with the law. She stated also in paragraph 7 of her reply to the Defendants’ statement of defence that the said exhibits were fabricated denying that they ever existed and required the Defence to prove same.
  5. On a preponderance of the available evidence before this Court, I find it impossible to accept the Claimant’s arguments that she was never served with letters of query by the Defendants. The burden of proving the existence of those letters was immediately discharged upon the production of the Certified Copies of the letters before this Court. The burden of proving that the letters were fabricated was however not discharged by the Claimant who failed to lead any particulars in that direction. I therefore have no cause to reject Exhibits D3 (a) and D4 in arriving at my findings, and I so hold.
  6.  The next question to determine is whether the Polytechnic Law or the Conditions of Service stipulate the number of query letters a staff liable for termination must first receive. The answer may be found in Section 119 (b) of exhibit C7 which basically covers termination and it states: “an employee who is confirmed in his appointment may have his appointment terminated by the Polytechnic on grounds of general inefficiency provided that he has previously been warned at least thrice by the personnel office that his work has been unsatisfactory or because of his bad conduct. If this provision is applied strictly, it shows that these Defendants never followed the precondition for the Claimant’s termination since the number of letters of query she actually received for the alleged misconduct were two in number and not at least three warning letters as prescribed by the said conditions of service. In order for that section to be complied with, the number of times an employee must have been warned for the same inefficiency, offence, or misconduct giving rise to his eventual termination, must be at least thrice. Exhibit D3 (b) which was a query addressed to the Claimant on 12/4/2010 was for absenteeism and not for the allegation of misappropriation of funds which is the direct and remote cause for the sanction against this Claimant. It is justifiable to state therefore that the Claimant only received two query letters and not three warning letters as prescribed under Section 119 (b) and for that reason alone, there was no justifiable cause for her termination by the Defendants, and I so declare. In fact, it is even arguable whether the query amounted to warning letters since a query by definition means to inquire into; to ask questions of; to express doubt concerning the correctness or truth of or to have doubts. When an employee is about to be disciplined by his employer, it is normal or usual to ask such employee to explain certain things before any decision is taken. This process is referred to as a query – see MIAPHEN V. UNIVERSITY OF JOS CONSULTANCY LTD (2013) LPELR 21904 PAGE 19. A warning letter in the context of employment law is a formal or administrative letter of admonishment or caution to an employee to desist from doing any conduct or to do what he is required of him by the employer. Going by this definition therefore, the Defendants have not established that the Claimant was ever given any warning letters by them whatsoever before the decision to terminate her employment was taken. As such, they definitely acted contrary to section 119 (b) of the conditions of service.
  7. With respect to the termination letter itself, the letter dated 27/2/2017 (admitted as Exhibit C6) which purportedly terminated the Claimant’s employment with the Defendants was said to be pursuant to Section 117 (a) of the Polytechnic’s Senior Staff Conditions of Service. However, that section deals with “SUSPENSIONS” generally. It provides thus: “Whenever, in the opinion of a Head of Department misconduct which is of such nature as not to warrant dismissal has been committed by an employee, the Head of Department concerned may recommend through the Registrar to the Committee that the employee be suspended without pay for a specific period”.
  8. This provision centers on suspension whereas Exhibit C6 is headed “Termination of Appointment”. It makes any reasonable tribunal wonder what the Defendants were trying to achieve by relying on a provision that specifically centers on suspension in terminating the Claimant’s appointment. Why should these Defendants rely on a provision that provides for suspension to terminate the Claimant’s employment? If we go by the provisions of Section 117 (a) of exhibit C7 then the sanction to have meted out to the Claimant should have been suspension for a particular period of time without pay. It is therefore difficult to appreciate where these Defendants got their legal backing from in deciding to write the Claimant the above letter. Automatically, the instrument given to this Claimant becomes questionable for failing to meet with the desired requirement of the law.  This is not withstanding the age-old principle established in FALOBI V. FALOBI (1976) 1 NMLR 69 that where a relief or remedy is provided for by a written law, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law. In terminating the Claimant, the Defendant must apply the relevant laws which gives it the legal backing to do so. I therefore draw the logical inference that when the purported letter was drawn up, due diligence was not given to the provisions of the Conditions of Service which govern this Claimant’s employment with them. In this case, ignorance of the law is inexcusable.
  9. If assuming however that it does not matter whether the wrong law was cited and applied by these Defendants in Exhibit C 6, section 32 of the Conditions of Service provides that an employee shall be entitled to three months’ notice or salaries in lieu thereof where he is to be terminated by the Defendant’s Council. What is stated in the termination letter of 27/2/2017 is as follows: “Accepting the findings of the Committee, Management decided, and the Honorable Commissioner for Education has approved that your appointment with the Polytechnic be terminated with immediate effect” – see paragraph 2 of the Termination of Appointment letter dated 27/2/2017.
  10. It becomes more uncertain and puzzling which law or regulation the Defendants utilized in effecting the termination of the appointment of the Claimant. It is also nebulous if after terminating her appointment, the Claimant was paid her three months’ salaries in line with the provision of Section 32 of the Abia State Polytechnic Aba Senior Staff Conditions of Service or directed to receive such payment.
  11. Based on the above findings therefore, I arrive at the safe and just conclusion in answer to issue 1 formulated for determination, that the Defendants failed to apply the appropriate laws and regulations in terminating the Claimant’s employment. I shall come shortly to my decision based on this finding.  
  12. On whether the Claimant received a fair hearing by the Committee set up to investigate her, her contention had been that the Defendants did not give her an opportunity to present a reconciled account before she was recommended for termination. She also stated that the Committee Chairman should not have headed the said inquiry since it was his books that were alleged to have been sold and the monies appropriated illegally by her. The Defendants feel otherwise and had argued that the Claimant was given every ample opportunity of knowing the offense alleged against her, asked her to be present before the Committee set up to investigate her and had asked her to provide a reconciled account since she denied the allegation of mis appropriation which she failed so to do thus necessitating the Council to terminate her employment in line with the Polytechnic law and her Conditions of Service.
  13.  Even though this Court had already found that the Claimant’s termination was not in consonance with the provisions of the law establishing the Polytechnic and the Conditions of Service, I still need to make a finding on whether the Claimant was even given a fair hearing at all. Giving the facts and evidence available before me, the Claimant was invited to appear before the Committee to investigate the alleged indebtedness of staff of the CCS on 12/2/2016 – Exhibit C5. Consequent upon the investigation, a report was made and sent to the Rector (2nd Defendant) as contained in Exhibit D5. In page 21 of the Report, the Committee recommended inter alia that the Claimant should be posted out of the bookshop department completely and suspended for three months with half salary. It was recommended also that letters of warning be written to her and made to refund the sum of N167,780.00.
  14. Now, although there is no doubt that the Committee was headed by the Defendants’ DW 2, Mr. C. S. Mpamugo who also happens to be the owner of the books the proceeds of which were alleged to have been appropriated by the Claimant, considering the report and the recommendations made by the said Committee, I do not find any of their decisions to be manifestly unjust giving the nature of the allegation made against the Claimant and the fact that the Committee was purely investigative in nature.
  15. In the case of FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA V. MAIWUYA (2010) LPELR 9001 (CA), the Court of Appeal held that “it is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or otherwise of the accused employee”. Indeed, in accordance with Section 12 (4) (b) of the Polytechnic Law 1992 cited beforehand, the Rector has the unfettered power to set up a disciplinary Committee (or to even head the same Committee) in the investigation of an errant senior staff of the Defendants’ institution. Therefore, the fact that Mr. Mpamugo headed this investigative Committee does not necessarily mean he was a complainant, jury, judge and executioner in that inquiry. This is more so since the recommendation he and his fellow members made were contrary to what the Polytechnic Management eventually held in its 640th meeting on 14/2/2017. The legal maxim of nemo judex in sua causa is definitely therefore inapplicable in this case, and I so hold.
  16. It follows suit that whether or not the Claimant was allowed to produce a reconciled account from the office of the DW 1 is actually irrelevant. This is because in order for this Court to declare that the inquiry was unjust or that there had been a breach of the Claimant’s right to fair hearing, the decision arrived at by them must be obviously and manifestly biased, unjust, irrational or inappropriate such that it cannot withstand any judicial test. In IMONIKHE V. UNITY BANK (2011) LPELR 1503 SC, “accusing an employee of misconduct by way of a query and allowing the employee to answer the query and the employee answers it before a decision is taken, satisfies the requirements of fair hearing or natural hearing”. Having therefore made a representation before the panel of inquiry, I do not accept that she did not receive a fair hearing by the said Committee. I am therefore reasonably satisfied that the Claimant’s arguments that she did not receive fair hearing before the Committee fails, and I so hold.
  17. Having found that the Investigative Committee headed by DW 2 did not breach the Claimant’s right to fair hearing, it becomes necessary to determine whether the Defendants set up any disciplinary committee after the investigative committee concluded and submitted their reports to the Council. There is unfortunately nothing before this Court indicating that the Defendants set up a Disciplinary Committee as provided for under Section 12 (4) (b), (5), (6), (7), and (14) of the Abia State Polytechnic Law (Cap 29), 1994. It is correct therefore to state that as far as the measures taken by these Defendants to terminate the Claimant for misconduct is concerned, the Council’s decision was indeed hasty and not based on a subsequent report of a Disciplinary Committee but on the Mpamugo led investigative committee’s report and this was definitely unlawful – see FUTO, YOLA V. MAIWUYA (SUPRA).
  18. Having therefore arrived at the above findings, the next issue for determination which is whether the Claimant’s termination by the Defendants is null and void becomes easy to determine. I have earlier observed that Section 12 (4) of the Abia State Polytechnic Law specifically provides for the procedure for the termination of the employment of a non-academic senior member of staff of the institution. Section 119 (b) of the Abia State Polytechnic Aba Senior Staff Conditions of Service provides for the termination of a confirmed staff of the Polytechnic provided that he had previously been issued at least three warning letters. As indicated in the foregone paragraphs of this judgment, there is amble reason to believe the Defendants did not comply strictly with the provisions of those regulations. The natural consequence of such default is to pronounce the Claimant’s termination as unlawful and to declare the resultant action a nullity.
  19. Thus held, the remedy available to the Claimant becomes an order for reinstatement to the position she held before the unlawful termination. Therefore, reliefs B and C of her claims wholly succeed and are hereby granted.
  20. As far as her claim for N20M is concerned, the Claimant believes she is entitled to the said sum as damages resulting from the unlawful termination. I acknowledge that “the law is indeed trite that in the award of damages, the courts are endowed with an unfettered discretion to keep up with the times and economic trend in the country, and most especially, with the prevailing fluctuating and rather obvious decline of the purchasing power of the Nigerian currency, i.e. the naira” – Ejisun v. Ajao (1975) 1 NMLR 4 at 7 ; See OZIGBU ENGR. CO. LTD V. IWUAMADI (2008) JELR 55421 (CA). However, a Claimant must establish how he arrived at such amount including placing before the Court all necessary evidence and particulars suggesting the approximate or exact amount claimed. It is also cardinal that where a Claimant succeeds in a claim such as this, he is automatically entitled to be paid all such salaries which he ordinarily would have earned had his employment not been unlawfully terminated. Notwithstanding the position of the law, the Claimant is still mandated to plead specifically, the special damage arising from the injury. As such, an order for special damages is subject to the Claimant specifically pleading and particularizing such claims – OZIGBU ENGR. CO. LTD V. IWUAMADI (SUPRA).
  21. Unfortunately, the Claimant never pleaded any facts suggesting how much she was paid as salary before the unlawful termination of her employment by the Defendants. This makes it impracticable to determine how much she is entitled to by way of special damages. Nonetheless, this Court can award a compensatory sum resulting from her unlawful termination. In that regard, I adjudge that the Claimant is entitled to be paid the sum of N2,000,000.00 only as general damages considering the overall circumstances including the inconveniences suffered as a result of this litigation. The said sum is ordered to be paid to her within 30 days of this here judgment which sum shall in default, attract 5% per month until same is finally liquidated.
  22. Based on the foregone findings as well as my declarations variously made above, the Claimant’s case succeeds in part. Reliefs B and C succeed wholly whilst A and D are qualified. Accordingly, the termination of her employment with the Defendants by letter dated 27/2/2017 is hereby declared null and void and same is set aside for being unlawful and inconsistent with the provisions of her terms and conditions of service as contained in the Abia State Polytechnic Aba Senior Staff Conditions of Service and the Abia State Polytechnic Law (Cap. 29) of 1994. The Claimant is also awarded the sum of N2,000,000.00 as damages for the injury resulting from the unlawful termination by these Defendants. The Defendants are to with immediate effect, reinstate her to the position she previously occupied on the same grade level and salary she received before her employment was unlawfully terminated with full entitlements and privileges of that office. She may also be redeployed to another department as recommended by the Investigative Committee in their report submitted to the Council as per Exhibit D 5. The Claimant is automatically exculpated from the allegation of misappropriation labelled against her and the Defendants are consequently restrained from further inquiring into or ordering her to pay or remit any amount of money to them allegedly being the proceeds of any books she purportedly held of them.
  23. Judgment is entered accordingly.

DELIVERED IN OWERRI THIS 2ND DAY OF MARCH 2020.

 

 

HONOURABLE JUSTICE I.S GALADIMA

NATIONAL INDUSTRIAL COURT, OWERRI.

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