HASSAN MUHAMMAD KABARA -VS- NATIONAL INSTITUTE FOR HOSPITALITY AND TOURISM

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

BEFORE HIS LORDSHIP: HON. JUSTICE E.D.E. ISELE (JUDGE)

Date: 26^th day of November, 2018 Suit No: NICN/KN/47/2016

BETWEEN:

HASSAN MUHAMMAD KABARA……………………………CLAIMANT

AND

NATIONAL INSTITUTE FOR HOSPITALITY AND TOURISM …….……………………………..…………………………………….RESPONDENT

REPRESENTATION: Claimant Present. Defendant absent

Abdullahi Ibrahim, Esq. for the Claimant

The Defendant Unrepresented

JUDGMENT

The claimant commenced this suit by a complaint filed on the 23^rd day of September, 2016 and claims the following reliefs against the respondent:

A Declaration that the claimant has not been accorded fair hearing in the proceedings leading to his alleged dismissal from the respondent’s employment.
A Declaration that the claimant’s purported indefinite suspension by the 1^st respondent dated 23^rd day of July, 2013 was wrong and unjustifiable.
A Declaration that the claimants’ purported dismissal by the 1^st respondent was illegal and unconstitutional with no effect whatsoever for breach of the claimant’s right to fair heaving.
An Order reinstating the claimant to his position as an employee of the 1^st respondent.
An Order compelling the 1^st respondent to pay the claimant his unpaid salaries and all other entitlements commencing from the month of July 2013 to the date of judgment.
Exemplary damages in the sum of N 10,000,000(Ten million naira)

Accompanying the complaint are the statement of facts, statement on oath of the claimant, list of witnesses, list of documents to be relied upon at the trial and annexures.

The respondent reacted by filing its memorandum of appearance 4^th day of March 2017 and on the 13^th day of April, 2017. The respondent filed its statement of defence which is accompanied by the list of documents and annexures list of witnesses and the witness statement of oath. As at the 12^th day of October, 2017 pleadings had been exchanged and the defendant/respondent filed a Notice of preliminary objection on the 21^st of June, 2017, pursuant to section 251 of the 1999 constitution as amended and under the inherent jurisdiction of the court.

Ruling on the NPO was delivered on 17^th day October, 2017 where the court stated that the issues raised for determination are best resolved at the close of hearing and reserved its decision to form part of the judgment at the close of proceedings.

The hearing of this case commenced on the 6^th of December, 2017 when the claimant opened his case and testified as CW1and adopted his statement on oath dated the 23^rd day of September, 2016 and his evidence in chief and tendered 7 documents as exhibits. The document were admitted and marked as Exhibits A, A1, B&B3, B4 &C.

The case of the claimant from his statement of facts and witness statement on oath is that he was employed by the respondent as a senior Mechanic by a letter of appointment dated 30^th day of December, 2002 and in 2005 the claimant’s appointment was confirmed by the defendant. The letter of appointment and confirmation are admitted and marked Exhibit A and A1.

That sometime in the year 2013, the claimant upon the birth of a child name the child after Mr. Tukur B Sagagi, also a staff of the defendant. That on 11^th February, 2013 around 6:12 am, the claimant entered the said Mr. Tukur B. Sagagi’s house situate at the Federal Housing Estate Sharada Kano to seek financial assistance to use for the naming ceremony of the newborn baby. At that time Mr. Tukur B. Sagagi was not at home and his visit was misunderstood as a result of which the claimant was prosecuted a criminal trespass, despite his aged relationship with the said Mr. Tukur B. Sagagi. And the charge against the claimant was not committed within the scope of his employment nor does it have anything to do with his employment.

The claimant averred that he was arraigned at Magistrate Court 14, Panshekara, Kano on the 13^th day of February, 2016 for criminal trespass with the said Tukur B. Sagagi as the nominal complainant. The claimant was subsequently convicted for the said offence and sentenced to twelve (12) Months terms of imprisonment or fine of 10,000 (Ten Thousand Naira).

The respondent on the 19^thday of June, 2013 issued the claimant a query titled “Query Over Trespass”, of which the claimant replied to on 28^thday of June, 2013. The claimant averred that the respondent issued him a notice letter dated 23^rd July, 2013 to take effect immediately. That his monthly salary is N53,000:00 (Fifty Three Thousand Naira) have not been paid to him since July, 2013 when he was suspended. The claimant state further that one Mr. Isyaku Monday, also an employee of the respondent informed him that he has been dismissed by the respondent since 2015. The claimant avers that sometime in the year 2015 he was informed orally that the respondent had constituted a panel of Enquiry and he was orally invited by the Administrative officer Mr. Andrew Bwala to appear before the panel at its headquarters on the 27^thday of May, 2015. The claimant stated that he went to the respondent’s administrative headquarters on the stated date to defend himself but was informed by their respondent legal adviser Barr. Maryam that the panel will not sit and asked him to go back home and will be put on notice of the date fixed. And that since then he was never invited again to appear before the panel of enquiry.

The claimant avers that the panel of enquiry constituted by the defendant to investigate the alleged conviction against the claimant never for once heard from him nor was he accorded fair hearing before he was allegedly dismissed, that the alleged dismissal is wrongfully done. Thus his claim against the respondent.

The respondent opened its defence on 1^stday of February, 2018 and called one Andrew Musa Bwala as its witness (BW1). The DW1 adopted his witness deposition on oath dated 12^th day of April, 2017 as his evidence in chief and during the trial he tendered 3 documents as exhibits. Two of the said document was admitted and marked as exhibits DA & DA1 while the third document i.e the letter of Dismissal which is not yet in evidence is marked as ID1 for the purpose of identification, and ruling on same reserved to form part of the Courts judgment.

THE DEFENDANT’S CASE

The case of the respondent from its statement of defence and witness deposition on oath is that the claimant was in its employment until dismissal with effect from the 1^st day of July, 2013. That the claimant has no right to action having not brought his action within three (3) months of the cause of action as required by the public officers protection Act, LFN 1990. The respondent avers that sometime in February, 2013, the claimant failed to report to his duty post at the North West Campus of the defendant in Bagauda, Kano. That after two or three days enquires was made as to his where about by the supervisor, the Human Resources and personal Manager, and it was discovered that the claimant has been arrested by the Police and taken to Court and arraigned for criminal trespass before, the Chief Magistrate Court , Panshekara, Kano. And the claimant was convicted and sentenced to 12 months imprisonment or fine of N 10,000, which is a serious act of misconduct that entitles the claimant to be dismissed from the employment of the respondent.

The respondent avers further that the claimant was issued a query by a letter dated 19^th June, 2013 of which the claimant replied admitted, stating the allegation and pleaded for leniency, stating that he committed the offence not deliberately but due to his being in a state of delusion. The respondent states that the claimant did not attach in the reply to the query step taken to cure his delusion nor did he attach any medical report indicating the said delusion and that he has been cured. That when a report on the incident was forwarded to the head office of the respondent at No 6 Mike Akhigbe way, Jabi, Utako District, Abuja, the claimant was placed on indefinite suspension. A committee was set up to set, consider and make a recommendation and the matter using the claimant’s reply to the query and the certified true copy of the first information Report (F.I.R) and judgment in the case of the commissioner of Police V. Hassan Mohammed. That the normal procedure for a staff under indefinite suspension was to suspend the payment of salaries and any entitlements during the committee’s investigation.

The respondent states that the claimant’s reply to the query in respect of the said conviction and sentence, the CTC of the FIR and the CTC of the judgment were sufficient for the panel of Enquiry to take the decision in the matter to dismiss the claimant from its service based on section 4 subsection 030402(d) of the Public Civil; Service Rule. The respondent denies that the claimant’s dismissal was wrongly done, illegal, null and void, mislead the dismissal was due to the criminal record of the claimant was an misconduct and in compliance with the provision of the Public service Rule.

The respondent state that since the day of the claimant’s suspension, he never worked for the defendant in any capacity to warrant any salaries. That the claimant is not entitled to any relief claims sought in this suit and urge the court to dismiss the claimant’s case with substantial cost.

In the respondent’s final written address two (2) issues were formulated for determination:

Whether the claimant is entitled to judgment in view of the pleading and evidence before this Honourable Court.
Whether the claimant has proved his case in accordance with law.

Learned Counsel submitted on document marked as ID1,(Letter of Dismissal) that it was pleaded or paragraphs 19,20, 22 and 25 of the statement of defence and was opposed to by the claimant’s counsel on the basis that it was not specifically pleaded counsel submitted that the document be admitted in evidence because it is relevant to these proceedings, that paragraph 15 & 16 of the claim asked for the same document and its admission will resolve the case one way or the other.

On issue 1, learned counsel submitted that facts pleaded must be those within a court’s jurisdiction as pleadings are binding on the parties and court, and a court cannot make out its own case outside the pleadings of the parties, referring the court to the case of AYOADE V. SPRING BANK PLC (2014) 4 NWLR (pt 1396) pg 93 131.

That paragraphs 5,6,7, 8 &9 of the statement of facts and witness statement on oath was not within the jurisdiction of this court to determine, citing Section 254 of the 1999 Constitution. That the paragraphs mentioned above are within the jurisdiction of the Magistrate Court and this Court lacks the jurisdiction to entertain same. Counsel submitted that the main aim of pleading as to convey the case of the claimant to the defendant in order not to spring surprise. And that evidence which is at variance with pleadings goes to no issue and should be disregarded by the court, referring the court to the case of AISHA JUMMAI ALHASSAN V. MR. DARIUS DICKSON ISHAKU & 2 ORS (2016 NWLR (pt 1520) pg 230 and CHIEF VICTOR WULOCHEM V. CHIEF GUDI & ORS (1981) 5sc 291.

Counsel states that the evidence led by the claimant in this case is not in line with the pleadings and referred the court to paragraphs 8, 9, 17 & 21 of the statement of facts and witness statement on oath in line with Exhibit B3 i.e the First Information Report (FIR) which states that the claimant was arrested at 6:12 am, while the exhibit states a different time at 2:00 hours. Also the claimant was arraigned and convicted on 14^th February, 2013, while the statement of facts and witness statement on oath state that it was 14^th February, 2016. Counsel submits further on paragraph 15&17 of the statement of fact and witness statement on oath that the said Ishaku Monday and the legal adviser of the defendant were not called as witness therefore this renders the paragraphs hearsay and not admissible in law. Counsel argued that there is great contradiction in the evidence which is not in line with the statement of facts oral and documentary evidence of the claimant and that evidence contrary to pleadings of a party is never admitted. See case of AISHA JUMMAI ALHASSAN (supra).

The learned counsel to the respondent submitted that the claimant was dismissed based on the serious misconduct as provided under section 4 subsection 030402 of the Public Civil Service Rules. And that the claimant never contradicted paragraphs 6-23 of the statement of defence under cross –examination or by way of reply, that what is not contradicted is deemed admitted.

That the claimant admitted by Exhibit C (reply to query) and the claimant did not file any appeal against the judgment of the Magistrate Court, Panshekara i.e Exhibit B3. Counsel state further that the claimant who confessed under cross-examination that he was suffering from a delusion at the time he was taken to the court and convicted, his state of mind is enough to gain him a dismissal even under rule 030402 (W) of section 4 of the Public Civil Service Rules, so also his absence from work is punishable under the case of U.N.T.H.M.B V. Nnoli (1994) NWLR pt 363 pg 376 where the court held that:

“It is quite settled that where there is a criminal allegation/charge against a person whose employment is sought to be terminated, such employee must be taken before a court or tribunal with criminal jurisdiction to determine his guilt or otherwise, except where the employee accepts his involvement in the alleged crime, which of course requires no proof”.

Counsel urge the court to strike out the evidence of the claimant on the following paragraph 5,6,7, 8, 9, 15,16, 17, 18, &21 for being offensive to our law.

On issue 2, the learned counsel submitted that in an action for wrongful termination of employment or not been accorded fair hearing the aggrieved party must aver the condition of service as a cardinal point in his pleadings and adduce evidence before the court on non-compliance with the terms of the condition of service, referred the court to the case of BRIGGS V. HAURY (2016) 9 NWLR (PT 1516) pg 45; UBA V. ORANUBA (2014) 2 NWLR (pt 1390) pg 1 @21; Angel Spirining @Dyering Ltd V. Ajah (2000)13 NWLR pt 685. That the claimant in this suit has not stated how the Civil Service Rules which is the condition under which he was employed is breached/has been breached. Counsel argued that Exhibit A, A1, B1-4 and C is not the only condition of his service, that section 128 (1) of the Exhibit Act prohibits the use of oral evidence to contradict the contents of a document, referring to the cases of L.C.R.I V. MOHAMMED (2005) 11 NWLR pt 935 pg 1; OLATUNBOSUN V. NISER (1986) 3 NWLR pt 29 pg 80 and SYLVESTER O. IMHANNOBE (2014) Law of Evidence in Nigeria (Imhannobe Law Books ltd) pg 159.

The learned counsel submitted that the claimant has not established before the court the conditions of his service and how the conditions were breached. That the claimant was queried and he responded that he was not in his senses both documentary and orally which is enough for the respondent’s action as was taken, referring the court to the case of Jirgbagh V. UBN (2001) 2 NWLR (pt 696) pg 11, per Chukwuma Eneh JCA stated thus:

“The respondent gave a written query to the appellant and he replied to it. The trial court was satisfied that the respondent complied. There is evidence of a query and answer as per exhibits C & D, the finding that the appellant was given a written query and the respondent admitted so and his answer as per exhibit D a letter of leniency and that due opportunity was not given to the appellant to defend himself, all these relate to questions of fact not having found the finding in any way to be perverse. This court is precluded from interfering with them……..’’

Counsel also cited the case of NARUMAL & SONS NIG V. NIGER BENUE TRANSPORT C. LTD (1980)2 NWLR pt 106 pg 730 and SILLI V. MASAKA (1997) 10 NWLR pt 479 pg 98.

That the claimant also failed to prove the declaration against indefinite suspension, that this declaration is groundless as the claimant has slept over his right having approached the court 3 years after exhibit C (letter of indefinite suspension).

On reinstatement, counsel to the respondent submitted that an order of reinstatement is directed by the court only when the termination/dismissal is wrongful. Counsel state that an employer has the undisputed right to dismiss or discharge his servant and if the right was invalidly exercised the action is to be founded on damages for wrongful dismissal but a declaration that the contract is valid and still subsisting cannot be made citing the case of OKI V. TAILOR WALL TANJAN NIG LTD (1985) NWLR pt 45 at 49. That the claimant has failed woefully to prove that the employment existed having been suspended for over 3 years and dismissal over a year later, cited the case of NEPA V. OLAGUNJU (2005)3 NWLR PT 913 PG 602 @ 634.

That the claimant who claims for payment of salaries and all entitlement from 2013 is an aberration of the law, because salaries and entitlements are payment for work done by an employee in a subsisting employment. That the claimant did not work he therefore does not earn the salaries for the period claimed, that the claimant admitted under cross-examination that having not worked he was not entitled to any salaries.

Counsel submits further that the claimant only stated that he was paid

N 53,000.00 in paragraph 14 of the statement of fact and witness statement on oath, that no payment slip was produced by him to call upon the court to calculate his salaries.

Counsel to the defendant submitted that the claimant cannot ask for reinstatement and exemplary damages at the same time, and having asked for both he is not entitled to any.

That the claim for damages needs to be stated mathematically from the total amount, where such is not stated, it becomes difficult for damages to be awarded citing OWO V. NIGERIAN AIRWAYS LTD, Employment and Labour Law in Nigeria (2015). The learned counsel urged the court to dismiss the claims of the claimant as he has failed to prove his case.

In the claimant’s final written address, three (3) issues were formulated for the court to determine, as follows:

Whether the claimant is entitled to Judgment in line with the pleadings and evidence before this Honourable Court.
Whether the claimant have proved his claims based on balance of probability as required by law and thus is entitled to Judgment.
Whether the statement on oath of the respondent’s sole witness DW1, is competent, credible and reliable in law.

Counsel to the claimant responded on the admissibility of document and stated that the document has not satisfied the tests of admissibility, that for a document to be admitted it must be specifically pleaded, relevant and admissible citing the case of OKOYE & ANOR V. OBIOSO & OTHERS (2010) 1 SCM 161.

That the document marked 1D1 is inadmissible being a photocopy, and not specifically pleaded, not proper foundation was layed for tendering a photocopy and the claimant was put on notice to produce the original, which is not within his custody having not been served with same in compliance with Section 91 of the Evidence Act, 2011. When the document is however viewed as a public document, it requires to be certified in line with Section 104 of the Evidence Act, 2011. Counsel submitted that the document is inadmissible whichever way it is viewed and urge this Honourable Court to reject the document marked ID1, marking it tendered and rejected.

On issue one, learned counsel submitted that in response to paragraph 4.4 of the respondents final written address, it will be right to say that the claimants dismissal was not formally communicated to him having been informed orally contrary to 030408 of the Civil Service Rules which stipulates that the claimant being an employee of the Federal Government must be notified of his dismissal in writing, and urged the court to so hold. In response to paragraph 4 – 3 counsel submitted that the respondent misconceived the principle governing hearsay evidence as the statement of facts and witness statement on oath are not hearsay because the facts contained therein were communicated to the claimant by the official/officer of the respondent in the course of official duty, and the law is trite that any information coming from a statutory body from any of its official cannot be regarded as hearsay, referring the court to the case of NWOBOSI V. CAN LTD (1995) 6 NWLR (pt 404) rg 679 paras F-G.

That Isyaku Monday and Barr. Maryam (Legal Adviser of the Respondent) are members of staff of the respondent and if there is any contention by the respondent as to the information passed by them to the claimant, the respondent would have called the said officers to give evidence to contradict that of the claimant and to specifically traverse same. That assuming without conceding paragraph 15 & 17 of the statement of facts & witness statement on oath are hearsay evidence, paragraphs 19, 20 and 22 among others of the same statement of facts are sufficient to cover the evidence before the court that the claimant’s dismissal is illegal and unconstitutional, citing the case of S.P.D.C.N LTD V. EDANKUE; (2009) 14 NWLR pt 1160 pg 1; BUA V. DAUDA (2003) 13 NWLR pt 838 pg 657 @ 679 – 780 paras G – A.

On paragraph 16 & 17 of the statement of facts counsel submitted that the respondent’s counsel was wrong to have said that the claimant attended the meeting he was invited by the Senior Staff Committee earlier than the time he was invited i.e on 23^rd July, 2013 instead of 23^rd July, 2015. Counsel states that the claimant is entitled to Judgment in line with the evidence before the court.

On issue two, counsel submitted that this is a civil matter bordering on employer and employee relationship which is determined on the preponderance of evidence and balance of probability, citing TANARAWA (NIG) LTD V. ARZAI (2005) NWLR pt 919 pg 593 @ 594; PURIFICATION TECHNIQUES (NIG) LTD V. JIBRIL (2012) 18 NWLR pt 1331 at 146. Counsel states that the claimant has successfully discharged the burden of proof as required by law to prove his case. That the claimant in establishing his employment relationship with the respondent has pleaded in paragraphs 3 & 4 and tendered as exhibit A & A1 his Letter of Appointment and Confirmation of Appointment in this suit. That the same paragraph were admitted by the respondents in paragraphs 2 & 3 of their statement of defence.

On reliefs I & II, counsel states that in paragraph 19, 20 & 22 of the claimant’s statement of facts he pleaded that his dismissal was unconstitutional and he was not accorded fair hearing, that the claimant only became aware of his dismissal as in paragraph 15, when he was informed by one Mr. Isyaku Monday also an employee of the respondent and that he did not received a letter of dismissal, counsel submitted that the cited above was never denied by the respondent, and the law is trite that uncontroverted and unchallenged evidence stand accepted, citing the case of S.P.D.C.N LTD (Supra) BUA V. DAUDA (Supra), ODUGUW V. ILOMBU (2007) 8 NWLR pt 1037 pg 488 at 511 para B. Counsel argued that the claimant did not received any letter of dismissal because he was told verbally and is not in conformity with the Civil Service Rules which renders the entire dismissal a nullity, citing the case of P.H.C.N V. AFOELO (2012) 52 (pt. 1) NSCQR pg 105 pg 131, P.H.M.B V. EYITAGBA (2000) FWLR (pt. 9) 1510.

Counsel submits further that the testimonies of DW1 under cross-examination was not covered by the respondent’s pleadings, that no clerk in the respondent’s office served the letter of dismissal on the claimant. Counsel states that the DW1 is not a credible witness thus his testimony goes to no issue, referring the court to the case of AIYEOLA V. PEDRO (2014) 13 NWLR pt 1424 pg 409 at 444 paragraph A-C; SHOFOLAHAN V. STATE (2013) 17 NWLR pt 1383 pg 281 at 314 paras C-D. Counsel submits that if the respondent’s claim to have served the claimant with the letter of dismissal, the respondents failure to tender the proof of serving the letter on the claimant, will be presumed to be evidence which if produced will be against the party in possession and favourable to the adverse party, citing Section 167 (d) Evidence Ac, 2011 and the case of STATE V. SALAWU (2011) 8 NWLR pt 1279 pg 580 at 605 – 606 paras G.

Counsel submits that the claimant has pleaded the conditions of service guiding and regulating his employment that Exhibit A clearly states the terms and conditions governing his employment with the respondent, as paragraph C of Exhibit A states that:

‘’You will be subject in all respect to all conditions of service stipulated in the Civil Service Rules and other governing regulations and instruction.’’

That the respondent having pleaded the Condition of Service in paragraph 19, 22 & 23 of its defence, the claimant is at liberty to lead evidence in that respect, citing the case of AGU V. IKWERE (1991) 3 NWLR pt 180 pg 385 at 410 para B.

Counsel submitted that the claimant’s dismissal in line with 030402 of the Civil Service Rules is wrong. That in Exhibit B4 state that action will be taken under Section 4 of Rule 030410 of the Civil Service Rules, while document marked ID1 state that the claimant’s dismissal was based under Section 4 rule 030402 of the Civil Service Rules, counsel states that this amounts to charging and convicting the claimant under different rules. That by Rule 030410, the body responsible for dismissing any officer of the Federal Civil Service is the Federal Civil Service Commission, but the claimant’s dismissal was executed by the respondent’s officer and this goes against the rule of natural justice ‘nemo judex in causa sua’’. Referring to the case of HONEYWELL FLOUR MILL PLC V. ECOBANK (2016) 16 NWLR (pt 1539) pg 387 at 426 paras C –D; IHAMA V. S.P.D.C (NIG) LTD (2005) 17 NWLR (pt 954) pg 364; BANKE V. AKURE L.G (2015) 6 NWLR (pt 1455) pg 400 at 421 paras A – B; E.P IDERIMA V. RIVERS STATE C.S.C LPELR – 1420 (SC); CHIEF IDONIBOYE – OBU V. NNPC (2003) LPELR 1426 (SC); COMPTROLLER GENERAL OF CUSTOMS & 3 OTHERS V. GUSAU (2017) LPELR 42081 SC; TAMTI V. N.C.S.B (2009) 9 NWLR (pt 1141) pg 631 at 650 – 651 paras H –C; MFA V. INONGHA (2005) 7 NWLR (pt 923) pg 1; FCSC V. LAOYE (1989) 2 NWLR pt 106; NDUKAUBA V. KOLOMO (2005) 4 NWLR (pt 915) pg 411.

On the indefinite suspension of the claimant by the respondent via Exhibit C, Counsel submits that it is wrongful, unconstitutional and unjustifiable. The counsel submitted that the claimant is entitled to this prayer. Referring the court to paragraphs 13 & 14 of the statement of facts and states that the averments were never challenged by the respondent. Citing the case of NBC PLC V. EDWARD (2015) 2 NWLR pt 1443 pg 201 at 206; NWAGU V. ATUMA (supra), S.P.D.C.N LTD V. EDANKUE (supra); BUA V. DAUDA (supra) at 679 – 780 paras G – A.

On relief six for exemplary damages of N10,000,000:00 (Ten Million Naira Only), counsel submits that this kind of damages is awarded where the respondent acted in a grossly illegal or unconstitutional manner. That the respondent wrongfully suspended, illegally stopped the claimant’s salary and unjustifiably dismissed the claimant from its service without due process and compliance to the Civil Service Rules and principles of natural justice, this entitles the claimant to the relief sought.

Issue three for the court to determine is whether the respondent’s sole witness is credible and should be believed, counsel submits here that the respondent has no evidence in support of its pleading before the court as the sole witness testified under cross examination that he signed the statement on oath in the office of the respondent’s solicitor which is contrary to Section 112 Evidence Act, 2011; citing the case of BUHARI V. INEC (2008) 12 NWLR 1 at 98; AREGBESOLA V. OYINLOLA (2011) 9 NWLR pt 1253 pg 458 at 594 paras A – B.

Counsel states that the sole witness of the respondent is not credible and reliable and his evidence be Struck out.

On the issue of statute of limitation, the claimant’s counsel states that statute of limitation cannot apply to this case for the following reasons:

Section 4 Rules 030408 Civil Service Rules. That dismissal of an officer of the Federal Civil Service takes effect from the date he/she is served with the letter of dismissal, which in this case the respondent has not pleaded and did not lead evidence to show that the claimant was served with the letter of dismissal.
Statute of limitation does not operate in a case where there is a breach of law.

Counsel urge the court on the above submissions to discountenance the respondent’s arguments and enter Judgment for the claimant.

In the respondent’s reply on point of law, counsel responded to issue 1 & 2 of the claimant’s final address in the negative. And submitted that pleadings must be in line with evidence before the court. Counsel states that it is in evidence that the original Exhibits ID1 is with the claimant and therefore the respondent is entitled to produce the Secondary evidence. As the main aim of pleadings is to give notice to the adverse party and alert him on what he intends to rely on to prove his case, citing the case of SUSANO PHARM CO. LTD V. SOL PHARM LTD (2000) FWLR pt 10 pg 1595 at 1601; ADEGBETI V. OGUNFAOLE (1990) 4 NWLR pt 146 pg 578. That the burden of proving that Isyaku Monday and Barr. Maryam (Legal Adviser) said anything to the claimant is on the claimant to prove not the respondent as he would have subpoend them, counsel states that the onus is for an employee to prove that the termination of his appointment was wrongly, referring to the case of BAMGBOYE V. UNIVERSITY OF ILORIN; ABOMELI V. NRC (1995) 1 NWLR pt 372 pg 451.

It was submitted for the Defendant that it is not the law that mere failure to accord a terminated or dismissed staff a fair hearing without more is enough to entitle him to Judgment in an action for wrongful termination on the evidence of gross misconduct made against him, see BABATUNDE V. OSHOGBO STEEL ROLLING LTD (2000) FWLR pt 10 pg 1659; JSC V. OMO (1990) 6 NWLR pt 157 pg 407; C.C.B V. NWANKWO (1993) 4 NWLR pt 286 pg 159.

Counsel submits that in establishing his employment the claimant must establish there was a contractual relationship with the Civil Service Rules. That in action seeking a declaration that the termination or dismissal of an appointment is null and void, the claimant must plead and prove not only the appointment but also the terms and condition of such appointment, referring the case of FAKUADE V. OBAFEMI AWOLOWO UNIVERSITY HOSPITAL MANAGEMENT BOARD (1993) 5 NWLR 291 at 49; ADEBITE V. COLLEGE OF MEDICINE UNILAG (1978) 5 SC, 149; BABATUNDE V. OSHOGBO STELL (supra). Counsel submitted that the claimant who wants to rely on the Civil Service Rules must plead either its applicability of the rules or facts that are governed by the rules.

On the proceedings and dismissal of the claimant by Tukur B. Sagagi, counsel submitted that Tukur, a Director (Admin) of the respondent is an agent of the respondent and an agent is a person authorized by another to act for him, and in this case he signed document marked ID1. That where a decision is based on documentary evidence issue of Tukur B. Sagagi is inconsequential and did not affect the fairness of the proceedings.

On the issue and in answer to the signing of a statement on oath, that it is not the rule of the Evidence Act but the rules of court under the hand of the Chief Judge as against the Evidence Act, citing DUALIN INV. LTD V. BGL PLV (2016) 18 NWLR pt 1544 pg 262 and urged the court to dismiss the matter.

COURT’S DECISION

With regard to the admissibility of ID1, the dismissal letter dated 30^th July, 2013 where the Claimant through Counsel had contended and submitted among others that the document was not specifically pleaded and should be rejected it being in admissible. On this I find that the letter is sufficiently pleaded as required, in the rules governing pleadings. In paragraph 1 of the statement of facts, that, the Claimant is still in the employment of the Respondent Defendant and instead avers that the Claimant was in its employment until his dismissal with effect from 1^st July, 2013.

At paragraph 20. The Defendant averred: “The Respondent/Defendant shall at the hearing content that up to 30^th July, 2015 when it took the decision to dismiss the Claimant with effect from the 1^st July, 2013, the claimant had not appealed against the conviction and sentence by the Chief Magistrate Court Panshekara, Kano in the aforesaid case of the COMMISSIONER OF POLICE V. HASSAN MOHAMMED.

I hold on the contents of pleadings that the law is that pleadings should contain statements of facts and others particulars, but it should not contain evidence, by which the facts may be proved.

See the case of OWOEYE V. OYINLOLA (2012) 15 NWLR pt 1322 84 CA: and PASCUTTO V. ADECENTRO (NIG) LTD (1997) 11 NWLR (pt. 529) SC. In this pleading I find that the faces and particulars relating to IDI were pleaded sufficiently and as required by the law and authorities, the objection of the claimant to its admissibility are hereby over killed and the authority of Okoye and Anor V. Obioso and ORS (2010) ISCM pg I accordingly discountenanced, more so, it was not submitted for the court’s perusal as required by law. And more so, there is no doubt that by virture of sections 6, 7 and 8 of the Evidence Act, 2011 the said piece of evidence is relevant and I so hold. It is for these reasons the dismissal letter dated the 3^rd July 2013 is hereby admitted as exhibit DAA.

Having admitted this document as DAA a look at its contents has become necessary. It was written to the claimant on the 3^rd of July 2015. The given address is NI HOUTOUR – West campus

Bagauda lake

Kano

DISMISSAL LETTER

“As was observed that you were involved in the case of trespass which led to your conviction by a Court of competent jurisdiction and upon management’s resolution, I am directed to notify you that you are dismissed from the service of the NIHOUTOUR based on section 4 subsection 030402 (d) of the Civil Service Rule.

Your dismissal takes immediate effect from 1^st day of July, 2013.

The institute wishes you happy endeavor.

Tukur B. Sagagi

Director Admin & Supplies

For Director Amin & Supplies

A reading of the exhibit DAA, shows that the said dismissal letter shows it was even meant to have a retro-active effective effect is it was backdated from 30^th July 2015 when it was written to take effect from 1^st July 2015. I find straight away that this cannot be so as a document of that nature was expressed to be with immediate effect means from the day it is dated, and not backdating it which makes voids or makes voidable the dismissal letter in Law. In the case of D.U TAMTI V. NIGERIA CUSTOMS SERVICE BOARD & ANOR (2009) 7 NWLR (PT 1141) 631 where a decision was reached to retire the appellant from service and consequently he was retired from service by a letter dated 6^th September, 2004, even though the letter was served on him on the 19^th of November 2004 and he challenged his retrospective and premature retirement in court at the Court of Appeal.

On whether an employer can dismiss an employee retro spectively,and an in allowing the appeal in part the court of Appeal per Abba – Aji, JCA delivering the leading held

“in the instant case, the appellant received the letter retirement on the 19^th November, 2004 and he could have every reason to believe that his employment was still subsisting up till the 16^th of November, 2004 and should be entitled to remuneration up to that dated … hence, the employer cannot dismiss or terminate the his employee’s employment with retrospective effect”.

In this present case it is a fact that the claimant had been placed under indefinite suspension by exhibit C from the 23^rd July, 2013, that letter reads:

“INDEFINITE SUSPENSION

Sequel to the query letter given to you over an alleged case of trespass and you subsequent reply. I am directed to write and issues you an indefinite suspension pending the determination of your case by the Senior Staff committee.

Thank you.

Sign Alsaba Baka

For Director Admin and supplies”

Now, crucially the letter of suspension was just one of indefinite suspension. So, since it did not categorically state that it was indefinite suspension without pay the presumption must be that the claimant was entitled to his salaries even while the suspension lasted. And I so hold it is the case of the claimant that his monthly salary was N53,000 (fifty three thousand naira per month) and he had not been paid his monthly salary since July 2013 when his monthly salary was stopped by the Defendant.

This suit was commenced on 26^th September 2016 when the originating processes were filed and it is about 14 months after exhibit DAA the dismissal letter was issued. The claimant maintains that he was not formally communicated with the dismissal letter.

Under cross examination by the Defence the Claimant admitted he worked with the Defendant from 2002 to 2013 up to when he was suspended.

And that his salary was paid him up to July 2013. He said he did not work for the Defendant in the years he was suspended and he was not paid salary during the period up to the year 2017.

Regarding the reply to query in exhibit B the Claimant was asked whether he admitted he committed the offence in the allegation in paragraphs 2 & 3 and the claimant was shown exhibit B. he ensured that it was not a criminal offence, in his words. “I enter his house and he enters”

In his reply to query to the Director of the Defendant use enter in exhibit B dated 23th june 2013. I readed

Re:Reply query over Trespass

The claimant had stated:

“with humility and respect, sequel to your query letter dated 19^th June 2013 with reference No. IITI/586/101/32 and signed by Aisaba M Bako which I received on 26/06/2013 I wish to reply and notify the authority as follows:

1) That the offence on which I have tried and convicted by the Magistrate Court is an offence outsider my working place.

2) That I regret committing the said offence as it happened out of decision and not intentional at all.

3) That I under take not to commit any other offence in future as I have taken every measure to cure the delusion.

4) That I equally undertake to be of good behavior in my working place.

5) Finally sir, I urge your good office not to take any disciplinary action against me, based on the above reasons I urge you sir to consider my plea.

Yours faithfully,

Hassan Muhammad”

Certainly the above admissions in the query point to the fact that the claimant had committed an offence which led to his trial and conviction before a Chief Magistrate Court in Panshekara, Kano as contained in exhibit B it is also a fact that the Claimant did not appeal against the decision of the Chief Magistrate Court which still stands against him.

The Defendants are relying on the conviction in exhibit B and Rule 03402 on serious acts of misconduct which include conviction on a criminal charge (other than a minor traffic or sanitary offence or the like) in Rule 030402 (d) of the Civil Service Rules/Public Service Rules.

In the premises of the above finding and holdings looking at the claims of the claimant among the 6^th reliefs of sought.

With regard to the 1^st head of claim for declaration that the claimant was not accorded fair hearing. I hold that to the contrary the claimant claim he was accorded fair hearing as he was given a query and he replied. These were captured in exhibit B and B1 respectively. And having admitted to an offence he committed and was convicted for, this head of claim has no more legs to stand on. At paragraph 4.8 of the Defendant’s written address the above points were stressed where Rule 030402 (W) dealing with his conviction was mentioned and the claimant’s absence from work in this case of UNTHMB V. NNOLI (1994) NWLR (pt. 363) 376, (1992) 6 MWLR (pt. 250) as cited by the defence the Court held.

‘’it is quite settled that where a criminal allegation/ charge against a person whose employment is sought to be terminated, such employee must be taken before a court or tribunal with criminal jurisdiction to determine his guilty or otherwise except where the employee accepts his involvement in the alleged crime which of course requires no proof”.

See also the case of FEDERAL CIVIL SERVICE COMMISSION V. J.OLAOYE (1989) ANLR 350 where the Supreme Court per Eso JSC reading the leading Judgment held on the need for fair hearing in dismissing an employee and an employer’s rights to dismiss an employee who is facing a criminal trial. The JSC held: it is not so difficult where the person so accused accepts his involvement in the acts complained of and no proof of the criminal charges against him will be required.

In the premises of the above reasoning: the claim in the 1^st head of claim fails and as a consequence, so does the claim for Declaration that the indefinite suspension was wrong and unjustifiable.

The claim in the 3^rd head of claim that the purported dismissal was illegal and unconstitutional Similarly fails and so does the claim for reinstatement.

However, having found the dismissal to have been with some retroactive effect, and also having found that the indefinite suspension was not expressed as being without pay, consequently the claim for the claimant’s unpaid salaries and all other entitlements from July 2013 to July 2015 when the dismissal letter was written should be paid to the claimant.

I do not have it before me on a balance of probabilities to state when exactly the claimant became aware of his dismissal so the Defendant is therefore ordered to pay the claimant within 30 days of this Judgment those owed salaries and allowances up to the end of July 2015.

The claim for damages is refused having not been proved.

There are no awards as to cost.

Judgment is entered accordingly.

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Hon. Justice E.D.E. Isele

Presiding Judge