MALLAM ADAMU SABO -VS- HON. COMMISSIONER OF EDUCATION & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP: HON. JUSTICE LAWAL MANI, PhD.

DATE: 15^TH FEBRUARY, 2018 SUIT NO. NICN/KN/11/2014

BETWEEN:

MALLAM ADAMU SABO——————————————————- CLAIMANT

AND

HON. COMMISSIONER OF EDUCATION, KANO STATE
ATTORNEY GEN./COM. OF JUSTICE, KANO DEFENDANTS
MUHAMMED IDRIS (E.S. KSSMB)
BAR. ABUBAKAR A. MUHAMMED (C.E.O.D. KSSMB)

REPRESENTATION:

Murtala Musa Esq. —————————————- For the Claimant
Mahmud Balarabe Esq. ——————————— For the Defendants

JUDGMENT

INTRODUCTION:

By a Complaint dated 28^th day of May, 2008, the Claimant sought the following reliefs against the Defendants:

The Plaintiff’s claim against the defendants jointly and severally for a declaration that the purported termination of the Plaintiff’s appointment by the defendant(s) is illegal void and of no legal effect.
An Order declaring the process of inquiry, interrogation or query as a sham and therefore null and void and of no legal effect.
A declaration that the Plaintiff was not given a fair hearing by the defendants and their agents.
An Order directing that the Plaintiff be reinstated to his employment forthwith.
An Order directing the defendants to pay plaintiff salaries and allowances plus all entitlements due and accruing to him by virtue of the position in the Ministry of Education Kano State, which has been with held since January, 2008 as per his last salary and that of his contemporaries with effect from March, 2008.

The Complaint is accompanied by Statement of Claim, deposition on oath, list of witnesses, list of documents to be relied upon at the trial. This suit is a transferred case from the Federal High Court.

On the other hand, the defendants jointly filed their memorandum of Association, Statement of Defence, deposition on oath, list of witnesses and list of documents to be relied upon at the trial.

CASE OF THE CLAIMANT

From his amended Statement of Claim and deposition on oath, the claimant averred that he was employed by the Ministry of Education, Kano State vide a letter dated 27^th March, 1984. The claimant’s employment was subsequently confirmed and by a letter dated 16^th September, 1988, the claimant was again offered a pensionable employment as Teacher Grade 2 with effect from 9^th March, 1984 by the Head of Civil Service Commission. The claimant rose through the rank to his last promotion to the Deputy Director, on GL. 15/7 with effect from 1^st July, 2006.

Claimant further averred that his place of primary assignment is Government Girls Arabic Secondary School, Tudun Bojuwa where he doubled as Vice-Principal and Chairman, Disciplinary Committee for the School.

In that capacity, the claimant acted in respect of some female students who were reportedly involved in some way ward activities unbecoming of students. While carrying out investigation there was outside interference trying to portray the Committee in bad light which the Chairman resisted but unfortunately became a victim of his effort to create sanity in the school. The end result was a query given to the claimant by an unknown Executive Secretary dated 6^th December, 2007 which the claimant answered. By another letter of same date signed by unnamed Executive Secretary, the claimant’s appointment was purportedly on suspension. By yet another letter dated 11^th February, 2008, one Bar. Abubakar A. Muhammed of Kano State Senior Secondary Schools Management Board purported to terminate the claimant’s appointment.

Claimant further averred that the claimant’s protested this purported termination but one Malam kabiru Sani, C.E.O. Promotion wrote to re-affirm the purported termination. Hence, the institution of this action.

CASE OF THE DEFENDANTS

From their witness Statement on oath dated 27^th day of April, 2016, the case of the defendants is that the Senior Staff Promotion and Disciplinary Committee representing the Civil Service Commission was set up to investigate Malam Adamu Sabo’s alleged offences of illicit affair, chasing and intimidating students. That the Committee accorded the claimant with the constitutional requirement of fair hearing. Thus, during the interview the claimant was interviewed separately and then jointly with the students who were summoned to testify at the hearing. The students interviewed were Samira Sabo of SS3c, Marawayya Umar of SS3c, Fiddausi Usaini Aliyu of JAS 2C and Murja Yusuf of SS1C who testified before the Committee. These students stated that the claimant on several occasion actually intimated them with persistent request on them to cooperate with him on immoral acts. That Fiddausi Usaini was invited by the claimant to meet him after school hours also testified in the presence of the claimant and she was sighted by the Security man when the claimant was escorting her out of the school premises at about 7.30pm.

Defendants also stated that all the allegation levelled against the claimant were thoroughly investigated by the Committee through the witnesses who testified at the hearing. That after the completion of investigation of the claimant’s case, the Committee recommended that the claimant was in contravention of the Civil Service Rules 04301 and 0401 punishable under Civil Service Rule 04406 and should therefore be dismissed with effect from December, 2007. The Committee’s recommendation for dismissal dated 5^th December, 2007 was subsequently reconsidered by the Government based on human grounds and reduced to termination of the claimant’s appointment. That the investigation of the claimant’s case was in accordance with the Civil Service Rules and in compliance with the principle of fair hearing.

SUBMISSION ON BEHALF OF THE DEFENDANT

At the trial, the claimant called his only witness and concluded his case in March, 2015. The defence who had two witnesses in their frontloaded statement of defence also applied to call additional witnesses which this Honourable Court granted and then defence was finally closed in April 2017 and the matter was adjourned to 6^th April, 2017 for adoption of final written address but on that date, the defence protested the closure of their defence and the court granted adjournment again to enable the defence to call their witnesses and defence was finally closed after the testimony of DW3 who was an additional witness for defence and the matter was adjourned for exchange of final written addresses, the defence was to file and serve their written address since July, 2017 but the claimant did not receive any written address several weeks after the time limited for defence to file their address. Hence, claimant decided to file their written address dated 25^th day of October, 2017.

However, the defendant filed their amended Statement of defence dated 11^th April, 2012 where they concluded that;

Whereof, the Plaintiff is not entitled to any declaration and/or Order sought… urging the court to confirm the termination of claimant as proper having followed due process.

The claimant testified personally as a witness and also tendered several documentary evidence which were all admitted by this Honourable Court as there was no objection by the defendants. On the other hand, the defendants called three witnesses.

To date there is no address from the defendants for adoption and reason(s) verbal or written was not adduced for failure to file the defence address.

SUBMISSION ON BEHALF OF THE CLAIMANT

This matter was slated for adoption of final written address dated on 16^th November, 2017. Still there is no written address filed on behalf of the defendants. Counsel to the claimant therefore applied that based on Order 38 the claimant should be allowed to move their final address which they had already filed.

Order 38 Rule 2(4) provides: if on the date fixed for the defendant to appear before the Court to prove the defence and the defendant fails or neglects to appear, the claimant may be allowed to file a Final Written Address and adjourn the case for adoption of final Address.

Provided that the defendant shall be put on notice on a date fixed for the adoption of the Final Address.

Order 38 Rule 3(2) NICN Civil Procedure Rules 2017 further provides:

Where any party to the proceedings has been duly served to appear or the party is to the satisfaction of the court aware of the adjourned date and without any reasonable excuse fails to appear, the court may consider and deal with the matter before it in the absence of such a party.

In the instant case, it is more than 3 months that the defendants despite being served have neglected or failed to file and adopt their Final Written Address.

Therefore, sequel to the failure of the defendants and in the light of the provisions of the Order 38 quoted above, the court allowed the claimant to adopt their Final Address which was served on the defendants on 31^st October, 2017. In addition, a hearing notice was served on both the claimant and defendants to that effect.

Therefore, considering the arte of the defendants which led to the closure of this case earlier, they have not deemed it necessary to file their Final Written Address.

Consequently, the court granted the application of the claimant counsel to proceed and adopt their final written address dated 25^th October, 2017 and filed on 31^st October, 2017.

In his Final written address, the claimant formulated 4 issues for determination as follows:

Whether the termination of the appointment of the claimant was in compliance with the laws governing his employment with Kano State Government.
Whether the claimant was given a fair hearing by the defendants with regard to the purported allegation against him.
Whether the claimant proved his claims to warrant his entitlement to the relief sought.
Whether the defendants acted properly and followed due process in terminating the claimant.

On issue 1, the claimant’s counsel submitted that the claimant has received the query dated 6^th December, 2007, alleging that the claimant was involved in illicit affairs of chasing and intimidation of students. That he also received letter of suspension dated 6^th December, 2007. But then two documents were served on the claimant days after the sitting of the so-called committee set up by the Senior Secondary School Management Board which sat on 5^th December, 2007. The claimant made a written response on 11^th December, 2007 to the aforementioned query which was served on him on 10^th December, 2007. This was followed by another query dated 28^th January, 2008 which specifically accused the claimant of inviting a lady student Fiddausi Aliyu of JSS 2C, relying on a report he submitted to the Executive Secretary, Kano State Senior Secondary School Management Board.

Counsel also stated that from the letter of suspension, 1^st and 2^nd queries one is not surprised at the termination Letter dated 11^th February, 2008 because the purported committee set up to investigate the allegation against the claimant made up their minds to remove the claimant from day one without hearing from him. This is because; the committee sat on 5^th December, 2007.

Learned counsel further contended that the so-called committee acted on a report without complying with Section 11(2) of the Kano State Senior Secondary School Management Board Law 2006 which requires a confirmation of the Board of Secondary School. Counsel argued further that the termination of the appointment of the claimant was therefore null and void.

In addition, counsel referred to Section 17 of the Kano State Senior Secondary School Management Board Law which was led by the defendants to establish the implementation of the provision of Section 17 Kano State Senior Secondary School Management Board Law. The Board did not meet on the report purportedly made by the Disciplinary Committee in respect of Mal. Adamu Sabo. Also, the defendant did not tender the report to enable this court to look at it and assign credibility to same.

Learned counsel contended that the law is trite that where an employee’s employment is said to have statutory flavour such employment has the backing of the law and can only be terminated in accordance with the law regulating it, relying on the case of IDERIMA V. R.S.C.S.C. 92005) ALL FWLR (PT. 286) 431 AT 446, CBN V. IGWILLO (2007) ALL FWLR (PT. 378) 1385 and OLUFEAGBA V. ABDUR-RAHEEM (2010) ALL FWLR (PT. 512) 1033.

Learned counsel also contended that the Disciplinary Committee which purportedly sat over the case of the claimant on 5^th December, 2007 did acted wrongly under the Civil Service Rules. The defendants for whatever reason have failed to tender the Report of the said disciplinary proceedings, citing Rule 04102 of the Kano State Public Service Rules. That the action taken by both the Disciplinary Committee and the Secretary were not regular and same wee not done in compliance with the law since the State Civil Service Commission did not delegate any powers to them or any member of the Committee, thereby rendering their act null and void relying on OLUFEAGBA V. ABDUR-RAHEEM (SUPRA).

On issue 2, whether the claimant was given fair hearing, learned counsel cited the case of IDAKWO V. EJIGA (2002) FWLR (PT. 1190 1499 AT 1509 where it was held that whenever there is a finding of no fair hearing it implies a prejudice to the party who lost and it is tantamount to a finding of a contravention of such persons right to fair hearing. In the instant case, claimant pleaded paragraph 8, 11, 13 and 17 respectively facts relating to how his service relating to the Kano State Ministry of Education was determined by the defendants. That on 5^th December, 2007 he was not given fair hearing because he was not allowed to know what crime he was specifically accused of committing and who were the students accusing him of having illicit affairs with. The defendants did not deny these facts. Counsel submitted further that the claimant was not given fair hearing since he neither saw his accusers nor was the lady he was alleged to have illicit affairs with. Counsel concluded that all the steps taken by the defendants through their agents which eventually culminated in the claimant’s termination without according him accordance as well as allowing him to know his accusers for him to cross-examine their tantamount to abuse and breach of claimant’s right to fair hearing. Besides, the Committee’s actions did not comply with the provision of the Civil Service Rules.

On issue 3, whether the claimant proved his claim, counsel answered the above question on the positive. That the claimant pleaded at paragraph 2, 3, 4 and 17 of his amended Statement of claim facts depicting his position or status. He further tendered Exhibits 1, 2, 3, 4, 5, 6 and 21 to substantiate his claim as regards his status. Relying on AJI V. CHAD BASIN DEVELOPMENT AUTHORITY (2004) ALL FWLR (PT. 237) 244 AT 439 held that:

It is trite law that an averment in a pleading is no evidence and cannot be substituted in defence.

Counsel cited case to show that even though in their defence at paragraph 2, 3, 5 and 17 that the claimant’s employment was by the Civil Service Commission upon recommendation of the Ministry of Education but that upon the Establishment of Teachers Service Board in 2003, all Secondary Schools Teachers came under the Teachers’ Board including the claimant. However, the defendants woefully failed to leave any evidence to substantiate this assertion as they have succeeded. The law is trite that pleadings do not take the place of evidence and facts pleaded without evidence goes to no issue.

Learned counsel further argued that both the Disciplinary Committee and Management Committee purported by the defendants to have been set up by the Senior Secondary School Management Board did not comply with both Civil Service Rules and the enabling law creating the Board in this regard, citing CBN V. IGWILLO (SUPRA).

On issue 4, learned counsel submitted that on the basis of submissions in issues 1-3 above, they have sufficiently established all the provisions which the defendants should have taken but which they either failed or refused to follow.

COURT’S DECISION

I have perused the processes and pleadings filed in this suit, I have also carefully listened to the present address presentation of the learned counsel to the claimant. And I have equally observed the demeanour of the witness. In my humble opinion, the issues for determination in this suit are 3 namely:

Whether the termination of the appointment of the claimant was in compliance with the condition of service and laws governing his employment with the Kano State Government.
Whether the claimant was accorded a fair hearing by the defendants with regards to the allegation levelled against him.
Whether the claimant has proved his claims to warrant his entitlement to the reliefs sought.

Prior to considering the issues raised above, it is imperative to clear one vital preliminary issue, which is the nature of the claimant’s employment, that is, whether the relationship is that of Master and Servant or the employment enjoys statutory flavour. In the case of INOALOAME V. WAEC (1992) 9 NWLR (PT. 265) 303 it was held that:

There is employment with statutory flavour when the appointment and termination is governed by statutory provisions. Thus, where the contract of service is governed by regulations derived from statutory provisions, they …… the employees with a legal status higher than the ordinary one of Master and Servant.

Flowing from the above, the employment of the claimant is clothed with statutory flavour as it is governed by the Kano State Senior Secondary School Management Board Law 2006 and the Public Service Rules, 2004 of Kano State. Similarly, in CBN V. IGWILLO (SUPRA) the Supreme Court said that:

An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the proactive for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to master and servant.

Having cleared that preliminary matter, we will now turn to the issues for determination. Issues 1 and 2 are intertwined and will be treated simultaneously.

On whether the termination of the appointment of the claimant was in compliance with the caus governing his employment with Kano State Government. On how an employment with statutory flavour can be determined. The Supreme Court in the case of OLUFEAGBA V. ABDUR-RAHEEM (SUPRA) held that:

An avalanche of court decisions have pronounced that where contract of service enjoys statutory flavour it can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions. Where as a presumption that when the legislation confers a power on an authority to make a determination, it intends that power shall be exercised in accordance with the rules of natural justice.

Again the provisions of Section 36(1) of the 1999 Constitution, as amended, states:

In the determination of his rights and obligations including any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to serve its independence and impartiality.

In the context of the above, Supreme Court’s decision in IGWILLO’S CASE and the Constitution provision referred to, Have the defendants complied with the laid down procedure for the determination of the claimant’s appointment?

The defendants posited that in the course of their investigation and recommendation, they have complied fully with the laid down procedure whilst the claimant claimed that the laid down procedure was breached which rendered the termination null and void and of no effect.

It would appear the defendants have attempted to a certain extent to assume compliance with the laid down procedure. This is depicted by the fact that the claimant was issued queries dated 6^th December, 2007 alleging that the claimant was involved in illicit affairs, chasing and intimidation of students to which he made a written response on December, 2007. This was followed by another query dated 28^th January, 2008 which specifically accused the claimant of inviting a lady student, Fiddausi Aliyu of JSS 2C to the school during vacation and remained in seclusion with her. The claimant also responded to this query. The claimant was also served with a letter of suspension dated 6^th December, 2007 to which the claimant also responded in writing. Similarly, that is, the defendant set up a Committee of Inquiry, the Senior Staff Promotion and Disciplinary Advisory Committee to investigate the allegations of misconduct against the claimant, that is, allegations of illicit affairs, chasing and intimidating students. In their Witness Statement on oath and Amended Statement of Claim, the defendants averred that the Committee had invited the claimant and accorded him absolute right to be heard during the investigation. That during the hearing of the claimant’s case, the claimant was interviewed separately by the Committee and then jointly with the students who were summoned one after the other with a view to ascertain the substance of the allegation against the claimant. That all the students concerned stated before the Committee that the claimant on several occasion actually intimidated them with persistent requests on them to cooperate with him in immoral acts. Defendants further averred that the claimant was in contravention the Civil Service Rules 04031 and 04401 punishable under Rule 04406 and recommended dismissal of the claimant which was commuted to termination on humanitarian grounds.

Defendants concluded that the investigation of the claimant’s case was in line with the Civil Service Rules and after compliance with the principle of fair hearing.

From the above scenario, it is discernible that the defendants have made efforts to comply with the procedure for discipline laid down by the Civil Service Rules and other condition governing the employment of the claimant.

However, on the other hand, the claimant contended that the laid down procedure was not followed as the queries in question were issued after the sitting of the Disciplinary Committee on 5^th December, 2007. They asserted that both the query and suspension letter dated 6^th December, 2007 were served on the claimant days after the sitting of the so-called committee set up by the Senior Secondary Schools Board which sat on 5^th of December, 2007. That the 7-man Committee started sitting and concluded it’s sitting on 5^th December, 2007 and it was only then they probably realised the need to serve a query on the claimant dated 6^th December, 2006 but served on 10^th December, 2007.

The claimant also asserted that this Committee made report and acted on the report without complying with Section 11(2) of the Kano State Senior Secondary School Management Board Law, 2006 which requires a confirmation of the Board for Senior Secondary Schools. In addition, the provision of Section 17 of the Kano State Senior Secondary School management Law was not complied with because no evidence was led by the defendants to establish the implementation of the provisions of Section 17 of the Board. The Board did not meet on the report purportedly made by the Disciplinary Committee. Claimant further argued that the Committee sat on 5^th December, 2007 and the report was concluded before the queries were served on the claimant. Also the claimant was neither queried before his suspension nor was his defence examined before the so-called Investigation Committee.

Moreover, claimant contended that the defendants did not comply with the provisions of the Kano State Civil Service Rules 2004 especially Rule 04102 which provides:

The power to dismiss and to exercise disciplinary control over officers in the State Civil Service is absolutely vested in the State Civil Service Commission. This power may be delegated to any member of the Commission or any officer in the State Civil Service.

Simply put the Rule provides that the power to discipline is absolutely vested on the Civil Service Commission of Kano State only though such powers could be delegated. However, defendants neither furnished any particular or evidence that to the effect that the State Civil Service Commission delegated such disciplinary power to them nor any of the members of the Disciplinary Committee.

Furthermore, the purported letter of termination Exhibit 17 emanated from the Secretary, Kano State Senior Secondary Schools Board signed by one Barr. Abubakar A. Mohammed on behalf of the Secretary to the Management Board. Therefore, actions taken by both the disciplinary Committee set up to investigate the allegations made against the claimant and the Secondary were not regular and same was not done in compliance with the law since the State Civil Service Commission did not delegate any powers to them or any member of the Committee. This render the purported termination null and void and of no effect. In the case of OLUFEAGBA V. ABDUR-RAHEEM (SUPRA) it was held that:

Dismissal done in the contravention of Public Service Rules are null and void and of no effect.

Now Civil Service Rule 04306 provides for the elaborate provisions on how officers accused of gross misconduct are to be disciplined. The rule is reproduced below:

Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with the Rule.

The officer shall be notified in writing of the grounds in which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence the Rule and Regulation which the officer has broken and the likely penalty.

In serious cases which are likely to result in dismissal, the officer should be given access to any such document to report used against him and he should be asked to state in his defence that he has been given access to such documents. The officer shall be called upon to state in writing within the period specified in the query any ground which he relies to exculpate himself.

The query letter shall be in the format below.

iii. If the officer submits his representations and the State Civil Service Commission is not satisfied that he has exculpated himself and considered that the officer should be dismissed, it shall take such action accordingly. Should the officer, however, fails to furnish representation within the time fixed, the Commission may take such action against the officer as it deems appropriate;

If upon considering the representation of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;
Where necessary, the Commission may set up a Board of Inquiry which shall consist of not less than three persons, one of whom shall be appointed Chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case as well as the nature of the offence which is the subject of inquiry. The Head of the officers department shall not be member of the Board;
The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the Board and shall be required to appear before it to defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Board.

vii. Where witnesses are called by the Board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he has been previously supplied with a copy thereof or given access to thereof;

viii. If during the course of the inquiry further grounds for dismissal are disclosed, and the State Civil Service Commission deems it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the commission, be furnished with a written statement thereof and the steps shall be taken as prescribed irrespective of the original grounds;

The Board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not by itself hear witnesses;
If upon considering the report of the Board together with the evidence and all material documents relating to the case the Commission is of the opinion that the officer should be dismissed such action shall immediately be taken;
If the Commission does not approve the officers dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount o salary denied him if he was interdicted or suspended;

xii. If upon considering the report of the Board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him to retire, the Commission shall, without further proceedings direct accordingly.”

Specifically, on fair hearing, claimant complained that aside from the Disciplinary Committee investigation conducted by the Disciplinary Committee on behalf of the Kano State Senior Secondary School Management Board on 5^th December, 2007, the two queries issued to the claimant dated 6^th of December, 2007 and 28^th January, 2008, respectively were not issued to the claimant for him to properly prepare himself and respond to them before the date for the hearing conducted by the Disciplinary Committee. Claimant cited how then did the said investigation Committee carry out investigations on the basis 1 while they made their findings and recommendations in their report? In the case of IDAKWO V. EJIGA (SUPRA) the Supreme Court held that:

… Where there is a finding of no fair hearing it implies a prejudice to the party who lost and it tantamount to a finding of a contravention of such persons right to fair hearing as guaranteed by the Constitution.

In sense, from the above submissions, by parties, authorities cited and reasons adduced, it is discernible that although there are some efforts made by the defendants to comply with the laws and procedures guiding the termination of the claimant’s employment, the provisions of the statute and the rules derived therefrom were not strictly or fully complied with as required by law. For instance, even though queries were issued, they served on the claimant after the Disciplinary Committee had concluded its sittings. Similarly, the Disciplinary Committee acted on a report without complying with Section 11(2) of the Kano State Senior Secondary School Management Law which requires a confirmation of the Board which was never obtained. Moreover, Section 17 of the Kano State Senior Secondary Schools Management Board Law was not complied with because no evidence was led by the defendants to establish the implementation of the Kano State Senior Secondary Schools Management Board Law. The Board did not meet on the report made by the Disciplinary Committee. Besides, the defendants failed to comply with the provision of the Kano State Civil Service Rules 2004 particularly Rule 01102 guides disciplinary procedure of officers in the State Civil Service. The Rule stipulates that the power to control and exercise disciplinary control over officers in the State Civil Service is absolutely vested on the Commission. The power may be delegated to any member of the Commission or any officer in the State Civil Service. However, the defendants acted without such disciplinary power being delegated to them or any member of the Disciplinary Committee. Furthermore, the two queries issued to the claimant after the conclusion of the Disciplinary Committee sittings were in breach of the rule of natural justice and the provision of the Public Service Rules 04306 (i-xii) of Kano State 2004 which tantamount to denial of fair hearing to the claimant. In A.G. KWARA STATE V. ABOLAJI (20090 7 NWLR (PT. 1139) 1999 CA it was held that:

Where disciplinary action is to be taken pursuant to any statute, law, rule, there must be full compliance with the Law governing such before disciplinary action can be properly justified. Any purported substantial compliance with the rules would have the effect of compromising the right of a citizen to fair hearing would be unlawful.

Accordingly, issue 1 and 2 are therefore resolved in favour of the claimant.

On issue 3, whether the claimant has proven his claim, to warrant his entitlement to same. In the case of KABEL METAL (NIG.) LTD V. ATIVIE (2002) 10 NWLR (PT. 775) 250 CA it was held that:

Where an employee complains that his employment has been wrongfully terminated, he has the onus ferit to place before the court the manner in which the said terms were breached by the employer. It is not for the employer to prove any of those.

See also AZENABOR V. BAYERO UNIVERSITY, KANO (2009) 17 NWLR (1168) 96 CA and N.R.W. IND. LTD V. AKINBULUGBE (2011) 11 NWLR (PT. 1252) CA.

Flowing from the above, in the light of our findings in issue 1 and 2, the claimant has proven his claim. Issue 3 is resolved in favour of the claimant.

What then is the implication of the above findings? Ordinarily, where an employment protected by statute is terminated unlawfully, the remedy is to declare such termination null and void and to reinstate the employee so affected to his former position. See NIGERIAN GAS CO. LTD. V. DUDUSOLA (2006) 18 NWLR (PT. 757) 292 CA.

Reinstatement involves putting the specified person back in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment. See GOVERNOR OF EKITI STATE V. OJO (2006) 17 NWLR (PT. 1007) 95.

However, there are situations and circumstances which the court will consider and refuse to order reinstatement and instead award damages. Even though the employment is with the statutory flavour. In the case of ISIERWORE V. NEPA (2002) 13 NWLR (PT. 784) 417 AT 434 the Supreme Court held that:

Similarly, the court will refuse to order reinstatement of an employee whose employment has statutory flavour but was terminated in violation of the relevant provisions of the Statute where supervening events have made it impossible for the employee to return to his post. The court will however order payment in damages.

Again in the case of GOVERNOR OF EKITI STATE V. OJO (2006) 17 NWLR (PT. 1007) 95 it was held that where members of a statutory Commission are removed from their offices without compliance with the relevant statutory provisions, the court will award damages in lieu of re-instatement where re-instatement is not appropriate in the circumstances. The court further states:

Again, in contracts of employment with statutory flavour, the court will award damages where there is evidence of situations and circumstances which make it impossible to order reinstatement.

In the instant case, the relationship between the claimant and the Management of the defendants has become so sour that it will be difficult, if not impossible for them to work in harmony bearing in mind the acrimonious relationship that had developed between them in respect of this case. Besides, considering the nature of the claimant’s employment which entails relating closely with students, as well as the anger and deep sense of frustration being harboured by the convened communities and some members of the Parents Teachers Association, it will be inappropriate to reinstate the claimant in both his own interest and that of the educational system in the State. Therefore, considering these situations and circumstances, the court will refuse reinstatement and but award damages.

The General rule is that wages or salary which have accrued and due for payment but unpaid at the time of termination cannot be claimed as damages but as a debt. See ABDULLAH V. ACHOU (1978) NCLR 2261.

Again, it is trite that what an employee losses by premature determination of his contract may be co-existence with the amount of his presumed salary or wages for the unexpired residue of the life of the contract. See MANCLYIDAS V. TANGALAKIS (1932) 11 ALL NLR 62; OROSANYE V. ECN (1969) NCLR 93.

On the whole and in view of the authorities cited and reasons adduced, i find and so hold as follows:

Reliefs 1, 2, 3 and 5 are hereby granted.
Relief 4 is hereby refused. In its stead, damages are hereby awarded being the sum of the claimant’s salary for the unexpired residue of the life of his contract of service to be calculated by the defendants and paid to the claimant.
These orders shall be complied with within 30 days from the date of this Judgment.

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

……………………………………………..

Hon. Justice Lawal Mani, PhD.