MALAM MUHAMMAD JIBRIL SANI & ors -VS- AMADU BELLO UNIVERSITY,

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: Monday 16^th September, 2019

Suit No. NICN/KN/35/2017

BETWEEN

MALAM MUHAMMAD JIBRIL SANI -CLAIMANTS
IBRAHIM ABDULLAHI

AND

AMADU BELLO UNIVERSITY, ZARIA
THE VICE CHANCELLOR, AHMADU BELLO

UNIVERSITY, ZARIA.

REGISTRAR, AHMADU BELLO UNIVERSITY, DEFENDANTS

ZARIA

GOVERNING COUNCIL, AHMADU BELLO UNIVERSITY,

ZARIA

REPRESENTATION:

Abubakar Mohammed, Esq. for the Claimants.
Abdurrazaq A. Ahmed, Esq. for the Defendants.

JUDGMENT

This suit was commenced on the 24^thJuly, 2017 where the Claimants are claiming the following reliefs:
A declaration that the actions of the Defendants in dismissing the Claimants on alleged misconduct which borders on a crime (criminal conspiracy and forgery) without first be held guilty by a court of law, was unlawful, illegal, null and void.
A declaration that the letters of the Defendants both dated 11^th February, 2013 purported to terminate the appointment of the Claimants signed by Abdullahi Ahmed Kundila was wrongful and unlawful.
An Order of this honourable court mandating the Defendants to pay the Claimants for their rights and entitlements accruing from the wrongful termination of their employment on 11^th February, 2013.
Cost of this action.
The complaint was accompanied by statement of facts, list of witnesses, witnesses’ statement on oaths, list of documents as well as copies of the documents to be relied upon at trial, the Defendants entered appearance on 16^thJanuary, 2018 and filed their statement of defence on the same day together with list of witness, witness statement on oath, list of documents and documents to be relied upon at trial.

The hearing of this case commenced on 25^th April, 2018 when the Claimants opened their case and CW1 and CW2 adopted their written statements on oath as their evidence in chief and tendered 14 documents as exhibits. The documents were admitted as exhibits without objection. The witnesses urged the court to grant all their reliefs.

The case of the Claimants as revealed from the pleadings filed, is that they were employees of the Defendants from 27^thOctober 2005 and 10^thJuly, 2007 to 11^th February, 2013 they were employed as Senior Computer Operator and Technical Officer respectively as contained in their letters of appointments dated 10^th July, 2007 and 27^th October, 2005 and their appointment were confirmed by the Defendants through letter of confirmation dated 2^nd January, 2009 and 30^th December, 2010 respectively.

The Claimants averred that on 24^th January, 2012 they were queried by the 3^rd Defendant acting on a report. And that a disciplinary committee was formed and charged with the responsibility of among others to investigate/charge the Claimants for the offences of criminal conspiracy and forgery and served with an invitation to appear.

According to the Claimants the Senior Staff Disciplinary Committee submitted its report to the Defendants and based on the report the Claimants were dismissed from service. They also on 30^thMay, 2016 wrote an appeal to the 4^thDefendant to reconsider their dismissal and that on the 27^th February, 2017 they were invited to appear again before the 4^thdefendant to defend themselves on the said allegations of criminal conspiracy and forgery, the 3^rd Defendant considered the Claimants’ appeal and upheld the earlier decisions which dismissed the Claimants from the services of the Defendants. The Claimants further averred that their dismissal is contrary to the regulations governing the conditions of appointment of Senior Staff of 1^st Defendant.
The case of the Defendants on the other hand is that they received a cautionary statement of complaint dated 30^thNovember, 2011 from its security division made by one Dalhatu Umar. The complaint according to the Defendants was based on the fact that the complainant sentN 70, 000. 00 (seventy thousand Naira) to one Isa Abdullahi who is his classmate to pay on his behalf the outstanding tuition fees for the program of Masters in Facility Management in the Postgraduate school for onward release of his statement of result. The said Isa Abdullahi sent the statement of result to complainant after two weeks through his colleague and which the complainant immediately forwarded same to his organization. The post graduate school of the 1^st Defendant according to the Defendants detected that the statement of result is fake when the complainant’s organization went for verification.

And that during investigations by the University security service, the following were observed:

The complainant Dalhatu Umar completed his Masters degree in Facility Management in September, 2010 in Faculty of Environmental Design.
The complainant gave the sum of N 70, 000. 00 to his classmate one Isa Abdullahi who gave the said amount or part thereof to the 1^st Claimant.
The 1^st Claimant did not pay the outstanding as directed; instead, he conspired with the 2^nd Claimant to forge a postgraduate statement of result in the name of complainant.
The 1^st and 2^nd Claimants admitted to have forged the statement of result.
The Defendants, based on the findings of the security Division issued query letters to the 1^stand 2^ndClaimants respectively, the said letters according to the Defendants were responded to by the Claimants and they admitted guilt.

According to the Defendants before the Claimants were dismissed they were invited to face the Disciplinary Committee and that both the Claimants appeared before the Disciplinary Committee on the 9^th and 10^th January, 2013 where they both admitted guilt and pleaded for forgiveness. And that the Defendants acted in accordance with regulations governing the conditions of appointment of Senior Staff of the 1^st Defendant.

According to the Defendants this suit commenced well after the statutory prescribed 3 months provided by the law. They therefore urged this court to hold that this action is statue-barred and ought to decline jurisdiction.

At the close of trial, learned Counsel on either side were directed by the court to file their final written addresses in accordance with the rules of court. The final written address of the Defendants was filed on the 16^th April, 2019 the Counsel to the Defendants formulated a lone issue for this court to determine as:

“Whether the Claimants are entitled to the reliefs sought.”

Arguing on this issue, the Defendants’ Counsel stated that the claim of the Claimants is that although they were found guilty of misconduct which borders on allegation of criminal conspiracy and forgery they were not taken to a court of competent jurisdiction for trial, they were dismissed. The Counsel submitted that after the allegation made against the Claimants, query was issued to them and they both responded to the query and they were further invited to the Senior Staff Disciplinary Committee where they both appeared and admitted that they committed the said misconduct and after which the Senior Staff Disciplinary Committee recommended their dismissal and same was approved by the 4^thDefendant. To the Defence Counsel this is what the Defendants were required to do by law.

And that the regulation governing the condition of service of appointment of Senior Staff of Ahmadu Bello University, March 2011 described the procedure to be followed and the type of punishment to be meted on the defaulting staff, the section provided that:

“Every member of staff is expected to be disciplined and of good behaviour throughout the period of his/her employment in the University, Disciplinary action shall be taken against any member of staff who commits an act of misconduct or gross misconduct.”

Counsel further stated that the regulation in Article 4.0 defined gross misconduct to include but not limited to:

(1)Withholding files (2) Bribery (3) Corruption (4) Embezzlement (5) Fraud (6) Falsification of records 7) Committing any other act which is inconsistent with the proper performance of the duties for which the member of staff was employed.

Counsel argued further that, it is not in dispute that the Claimants were given fair hearing or accorded ample opportunity to present their case before the Senior Staff Disciplinary Committee. Hence, the Disciplinary Processes and Procedures were carried out in accordance with section 8 (5) of the University Law and section 5 of the regulation governing the conditions of appointments of Senior Staff of Ahmadu Bello University and also section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

Counsel then reproduced the provisions of section 4 (h) of the said regulations as follows:
The Registrar will on behalf of the Senior Staff Disciplinary Committee issue queries to the staff and obtain their written responses.
Thereafter, invitation letters will be sent to the affected staff to appear before the Committee indicating the time, and Venue of the meeting.

iii. The letters of invitation to staff should clearly notify them that the Committee had been mandated to give them another opportunity to defend themselves against the charges levelled against them.”

The Counsel then submitted that the procedure and manner in which the University governing Council dismissed the Claimants is in accordance with the University laws, equity and natural justice and as such valid, citing the cases of OLANIYAN V. UNIVERSITY OF LAGOS (1985) NWLR (1985) 2 NWLR (pt. 8) 559 @ p. 602 Paras F-G, COMPTROLLER-GENERAL OF CUSTOMS V. GUSAU (2017) ALL FWLR (pt. 911) 422 at pt. 436-437, SHITTA-BAY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC.

The learned Counsel to the Defendants further cited the case of ARINZE V. FBN LTD (2004) 12 NWLR (pt. 888) 663 where it was held thus:

“In statutory employment, as well as in private employment, the employer can dismiss and employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality and, in such a case, it is not necessary, nor is it required under section 36 (1) of the 1999 Constitution that an employee must first be tried in a court of law. See YUSUF V. UNION BANK OF NIGERIA LTD (1996) 6 NWLR (pt. 457) 632.”

And that, it is therefore erroneous as contended by the Claimants’ Counsel that once crime is detected the employer cannot dismiss the employee unless he is tried and convicted first. Referring to the cases of EZE V. SPRING BANK (2011) 18 NWLR (pt. 1278) 113 AT 117 and FEDERAL CIVIL SERVICE COMMISSION V. LAOYE (1999) 2 NWLR (pt. 106) 652.

The Counsel further cited the case of DONGTOE V. C.S.C PLATEAV. STATE (2001) 9 NWLR (pt. 717) 132 @ 159 where the Supreme Court held thus:

“It seems to me preposterous to suggest that the administrative body should stay exercise of its Disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before Disciplinary Proceedings should be taken. I do not think the provisions of the law and effective administration contemplate or admits the exercise of such circuitous route to the discipline of admitted wrongdoings.”

And that, from the exhibits exhibited in this case and from the evidence of PW 1 and PW 2, it is clear that the Claimants are not denying their wrongdoing. The learned Counsel further referred this court to the case of EZE V. SPRING BANK PLC (2011) 18 NWLR (pt. 1278) 118 at p. 117 where it was held thus:

“It seems an erroneous interpretation of the judgment of the Supreme Court in the case of GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (pt. 18) 550 to refer to the case as holding that once a crime is detected, an employer cannot dismiss an employee unless he is tried and convicted first. In statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct, in other words, it is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offence under any law, the employer has to wait for outcome of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service or employment.”

According to the Counsel, sequel to the above, the Claimants were dismissed for gross misconduct arising from the University law and regulation, as it is not necessary for the Defendants to wait for the prosecution of the Claimants before dismissing them for the various act of gross misconduct. The counsel also referred this court to the case of YUSUF V. UBN LTD (1996) 6 NWLR (pt. 457) 632.

In conclusion, the Counsel urged this court to hold that the Defendants have complied with the Ahmadu Bello University law and the regulation governing the condition of service of appointment of Senior Staff of Ahmadu Bello University in dismissing the Claimants.

The final written address of the Claimants was dated 4^thApril, 2019 in which the learned Counsel formulated a single issue for this court to determine as:

“Whether in the light of the pleadings and evidence before this honourable court, the Claimants have proved their claims on the balance of probabilities as to be entitled to the reliefs claimed.”

The learned Counsel to the Claimants answer the above issue in the affirmative and submitted that the following facts are undisputable:

That the Claimants are formerly staff of the Defendants.
That sometimes while in the cause of their duties they were served with queries.
That the reason for their queries was that they were charged for gross misconduct which borders on crime (criminal conspiracy and forgery).
That a Disciplinary Committee was formed to investigate the Claimants.
That the Claimants were reported to the security Division of the 1^st Defendant.
That while at the security Division the statement of the Claimants were taken.
That the Defendants did not take the Claimants to any court of law for the offences alleged against them.
That it was as a result of the outcome of the findings of the Disciplinary Committee that the Claimants were dismissed.
The Counsel then submitted that these facts were admitted by PW 1 under cross examination as follows:

“Q-What offence did they commit to warrant gross misconduct.

A- A graduate of the University gave them N 70, 000. 00 as tuition instead of remitting the money to the University they issued a fake statement of result which the University could not verify.

Q-A Disciplinary Committee investigated the Claimant?

A-Yes.

Q- Did the defendants take the claimants’ to any court of law for the offences alleged against them?

A- Certainly no

Q- It was as a result of the outcome of the findings of the disciplinary committee that the claimants were dismissed

A- Yes”

The Counsel submitted further that an admitted fact require no further proof. Citing the case of TOTAL NIGERIA PLC V. MORKAH (2003) FWLR (pt. 148) p. 1343.

The Counsel then urged the court to hold that the Claimants are formerly staff of the Defendants but dismissed for offence which borders on criminal conspiracy and forgery based on investigation of the Disciplinary Committee without taking them to a court of law.

The Counsel for the Defendant argued further that the conduct amounting to a crime must first be a matter for a criminal tribunal or court before disciplinary issue. The Counsel cited the case of CADBURY NIG. PLC v. ONI (2013) ALL FWLR (pt. 665) p. 251.

The Counsel finally submitted that since the Claimants’ were not taken to court of law their dismissal based on the investigation of a Disciplinary Committee on alleged crime of criminal conspiracy and forgery was wrongful and unlawful.

In conclusion, the Counsel urged the court to grant all the Claimants reliefs.

COURT’S DECISION

I have carefully considered all the processes filed, the evidence led, the written submissions of learned Counsel, the authorities cited both statutory and judicial and evaluated all the exhibits tendered in this case. I also watched the demeanour of the witnesses at trial and having done all these, I set down two issues for just determination of this case thus:
Whether the Defendants have complied with the procedure in terminating the Claimants’ employment.
Whether an employer can dismiss an employee where the accusation of such employee is of gross misconduct bordering on criminality without been tried before a court of competent jurisdiction.

On issue 1, that is whether the Defendants have complied with the procedure in terminating the Claimants’ employment. It is instructive at this point to produce the provisions of section 5d of the Regulation Governing the conditions of Appointment of Senior Staff of Ahmadu Bello University dealing with the disciplinary procedure of a Senior Officer. The section provided thus:

“5d DISCIPLINARY PROCEDURE

As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him, it shall be the duty of the superior officer to inform the officer in writing, giving details of unsatisfactory behaviour and to call upon the staff member to submit within a specific period, such written representation as he (staff member) may wish to make to exculpate himself from disciplinary action.
Where such superior officer is not satisfied with the written representation of this staff member, he shall refer the matter to the Vice Chancellor who shall, where he deems fit, direct the Registrar to commence disciplinary proceedings against the staff member.

iii. The Vice Chancellor shall ensure that process and fair opportunity is given to the staff member to respond to the case instituted against him.

Where the Vice Chancellor considers that a proper case of misconduct has been made against the staff member, he shall, on the strength of the case, refer the matter to the Senior Staff Disciplinary Committee for appropriate disciplinary measure in accordance with the University statute.
The ultimate penalty for gross-misconduct is dismissal…….
Right of Petition/Appeal.

Any employee dissatisfied with a disciplinary action taken against him/her under these regulations, shall have a right to Petition/Appeal to the Registrar. This right of Petition/Appeal does not carry with it, a right of personal appearance before the Council. The decision of Council on such a petition/appeal shall be final.”

Section 5C of the said regulation defined gross-misconduct to include among others committing any other act which is inconsistent with the proper performance of the duties for which the member of staff was employed.

From the statement of facts the Claimants were queried by the Defendants on 24^th January, 2012 based on the allegation of criminal conspiracy and forgery, the said queries were responded to. The Claimants were further invited to appear before the Senior Staff Disciplinary Committee, which invitation they honoured, and having not been satisfied with the response, the Claimants were dismissed from the services of the Defendants based on the recommendations of the senior staff disciplinary committee. The Claimants on 30^th May, 2016 wrote an appeal to the 4^th Defendant to re-consider their dismissal. The Claimants were again invited to appear before the 4^th defendant to defend themselves on the said allegation, the 3^rd Defendant considered the Claimants appeal and upheld the earlier decision which dismissed the Claimants from the services of the Defendants.

Comparing the provisions of section 5d of the Regulations Governing the conditions of appointment of Senior Staff of Ahmadu Bello University and statement of facts, I find and do hold that the Defendants have followed the laid down procedure in dismissing the Claimants. As such the dismissal of the Claimants at this leg cannot be declared illegal, null and void as it is only when an employer fails to follow procedure the termination will be declared null and void. See NEW NIGERIA NEWSPAPER LIMITED V. MR. FELIX ATOYEBI (2013) NGSC 2.

On the second issue, that is whether an employer must try an employee accused of gross misconduct bordering on criminality before summarily dismissing him?. Here, I hold that Contrary to the argument of the Claimants, it is not a requirement of the law that an employer must criminally prosecute an employee on account of gross misconduct involving dishonesty and bordering on criminality before he summarily dismisses such employee. An employer has a choice to dismiss him summarily. See the cases of BILLIE V. MULTILINKS TELECOMMUNICATION LIMITED (2012) 29 NLLR PP. 468-469, YUSUF V. UNION BANK PLC (1996) 6 NWLR (pt. 457) 632, A.T.A POLY V. MAINA (2005) 10 NWLR (pt. 934) 487 and BAMGBOYE V. UNIVERSITY OF ILORIN (2001) FWLR (pt. 32) 12 p. 480 paras F-G.

It was further held in OTUKADEJO V. NIGER DOCK NIGERIA PLC (2015) 52 NLLR (pt. 173) at Pages 70-71 that:

“It is not a requirement of law that before an employer summarily dismisses his employee, the employee must be tried before a court of law where the accusation against her/him is for gross misconduct bordering on criminality. In the instant case, the evidence adduced by the Defendant is that it was after the dismissal that the case was reported to the police. The Claimant is contending that her dismissal is based on an allegation of crime by the defendant which must first be proved before she can be summarily dismissed”.

I hold further that, in cases of misconduct bordering on criminality all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. See ARINZE V. FIRST BANK OF NIGERIA LTD (2004) NWLR (pt. 888) 663, OLATUBOSUN V. NISER (1988) 3 NWLR (pt. 80) 25, YUSUF V. UNION BANK OF NIGEIR LTD (SUPRA). In the instant case, the Claimants were confronted with the accusation of criminal conspiracy and forgery and they were given opportunity to make explanations in their defence, the explanations were not considered satisfactory by the University hence their dismissal. Therefore, the complaints of the Claimants that the Defendants did not follow the laid down procedure in dismissing them and that they are required to be tried before any action taken against them is not tenable. And I so hold the Claimants clearly admitted the allegation levelled against them during cross examination.
On the whole, therefore, I must answer the question framed by the Claimant for the determination of this court in the negative. The Claimants have not made out any case for the grant of the reliefs prayed for. The action of the Claimants accordingly lacks merit and so is hereby dismissed.

Judgment is entered accordingly. I make no order as to cost.

__________________________

Hon. Justice E.D.E Isele

Presiding Judge