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National Industrial Court

Mr. Adeleke Waheed -VS- The West Africa Examinations Council

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 

BEFORE HIS LORDSHIP HONOURAB`LE JUSTICE F. I. KOLA-OLALERE

 

Date: January 15, 2020                                                                      Suit No: NICN/IB/55/2015

 

Between:

 

Mr. Adeleke Waheed                        ————————————–                                 Claimant

 

And

 

The West African Examinations Council     ——————————                             Defendant

 

Representation:

Olaniyi George with O.G. Oboh for the claimant.

Dr. Shittu A. Bello with Olabisi Atolagbe for the defendant.

 

COURT’S JUDGMENT

  1. On August 18, 2015 the claimant filed this Complaint against the defendant, seeking for the following reliefs:
  2. A Declaration that the purported dismissal of the Claimant from the service of the Defendant contained in the Defendant’s letter dated 13th May, 2015 is in breach of the Rules of Natural justice, 1999 Constitution of Nigeria, the conditions regulating the appointment of the Claimant and is therefore illegal, unconstitutional, wrongful and irregular.
  3. An Order of this Honourable Court setting aside the letter of dismissal dated 13th May, 2015 for being wrongful, irregular, unlawful and unconstitutional.

iii.   An Order directing the Defendant to reinstate the Claimant to his post and payment of all salaries and arrears from the month of June 2015 up till the date of judgment and all outstanding entitlements.

  1. An Order of this Honourable Court directing the Defendant to pay the sum of N5Million (Five Million Naira) only as general damages.
  2. Cost of action

                  

Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed his Statement of Defence together with other processes in compliance with the Rules of this Court.

  1. The Claimant’s Case as Pleaded

The case of the claimant is that he was an employee of the defendant and served the Council for a period of 22years meritoriously in various capacities until the case of one Mr. Esumike Godspower who was said to have procured a certificate issued by the West African Council illegally came up. He went on that he was issued query on the incident and was made to face the disciplinary panel before he was dismissed for the defendant’s employment. To the claimant, his dismissal was not in accordance with due process.

  1. The Defendant’s Case as Pleaded

The case of the defendant on the other hand is that, while it admitted that the claimant was one of her former employee, the defendant stated that the claimant was dismissed from service based on the report of the panel, which investigated the claimant’s involvement in the issuance of fake certificate to one Mr. Esumike Godspower. It continued that the dismissal was in line with the Rules of Natural Justice and due procedure in line with the terms and conditions of the claimant’s employment on dismissal for gross misconduct.

During hearing of the case, the claimant testified as CW1 and one Awolope Adenike Oluwayemisi testified as DW1 on behalf of the defendant. In line with the Rules of this Court, counsel were directed to file their final written addresses by the Court and they complied with the direction.

  1. DEFENDANT’S WRITTEN ARGUMENTS

In the defendant’s final written address, he made a preliminary argument on the validity of the deposition on oath of Mrs. A. O Awolope (D.W.1); the sole witness of the Defendant. Counsel noted that said Written Statement on Oath was defective because she inserted May 10, 2017 against her signature, suggesting that she had signed her deposition on that day, ever before she appeared before the Commissioner for Oath who signed the deposition on May 15, 2017. However, counsel urged the court to treat this error as an innocent mistake of the sole witness to the Defendant in this case and as an irregularity that can be overlooked and cured. He urged the Court not to strike out the written statement on Oath so that all the evidence of the defendant will not be thrown away; relying on Phesigner, L.J. in Collins v. Vestry of Padding ton [1880] 5 Q.B.D. 368 at p. 380 and 381

  1. The defendant’s counsel then raised these issues for determination in the address:
  2. Whether or not the dismissal of the Claimant from the services of the Defendant was wrong.
  3. Whether or not the reliefs sought can be granted by this Honourable court.
  4. Arguing issue one, counsel submitted that the following admissions by the claimant in his written statement on Oath dated and sworn to on 18/08/2015 confirm that the Defendant adequately satisfied the tenets of natural justice and fair hearing as provided in the Constitution of the FRN, 1999 (as amended) and the procedure for dismissal of staff on grounds of gross misconduct prescribed in chapter 10.15 of the Conditions of Service (now Exhibit C.10) in this case; before the claimant was dismissed. Counsel referred the court to paragraphs 6, 7, 8, 19, 20 and 25 of the claimant’s written statement on oath. He also cited in support Olatunbosun v. Nigeria Institute for Social and Economic Research Council [1988] NWLR (Pt. 89) 25 at 52; Momoh v. CBN [2007] All FWLR (Pt. 395) 420 at pg. 438 paragraphs A-B & D-E; Suit No. NICN/AK/37/2012 – Mrs. Tawakalitu Ronke Oyelowo v. West African Examination Council and Military Governor Imo State v. Nwauwa [1997] 2 N.W.L.R. (Pt. 490) 675.

 

  1. Counsel went on that the claimant disposed in paragraphs 6, 7 and 8 of his written statement of oath that he answered the Query issued to him on the issue that led to his dismissal referring to Exhibits C3 and C4 before the Court. He contended that it is the law that where an employer accuses an employee of misconduct by way of query and allows the employee to answer the query before taking a decision on the employment of the employee, the employer has satisfied the requirement of fair hearing because he answered the respondents’ queries before he was dismissed from his employment. Counsel cited in support B.A Imonikhe v. Unity Bank Plc. [2011] 12 N.W.L.R (Pt. 1262) 628 at 641; Baba v. N.C.A.T.C [1991] 5 NWLR (Pt. 192) 388 and Ansambe v. Bank of the North Ltd. [2005] 8 NWLR (Pt. 928) 650 CA. To counsel, the evidence adduced by the claimant in paragraphs 6-20 and 25 of his written Statement on oath confirm that the defendant complied with the procedure in Chapter 10.15 of the Conditions of Service in “Exhibit C10” before the claimant was dismissed from its service. Counsel argued further that it is a fundamental principle in employment governed by Master and Servant relationship that an employee who has committed a sufficiently fundamental breach of his contract can be dismissed summarily by his employer, citing Union Bank (Nig.) Ltd v. Ogboh [1995] NWLR (Pt. 167) 380 @ pg. 653; Samson Babatunde Olarewaju v. Afribank (Nig.) Plc. [2001] 13 NWLR (Pt. 731) 691; Babatunde Ajayi v. Texaco (Nig.) Ltd & Ors [1987] the All NLR 471 at 472; Adamo Gbolade Adeko v. Ijebu Ode District Council [1962] The All NLR 221 and Emmanuel N. Nwobosi v. African Continental Bank Ltd [1995] 6 NWLR (Pt. 404) 658 at pg. 686.

 

  1. Arguing issue two of whether the reliefs sought can be granted, counsel submitted that the claimant’s employment with the Defendant, West African Examinations Council is not with statutory flavour. He continued that the defendant is not an agency of the Federal Government of Nigeria and that the employment relationship between the parties is purely that of Master – Servant; referring to Imoloame v. West African Examinations Council [1992] 9 NWLR (Pt. 265) 303; West African Examinations Council v. Morgan Ngozi Uzowuru [2014] All FWLR (Pt. 732) 1768 at pgs. 1787 to 1789 paragraphs H-A and the unreported judgment of this Honourable Court in Oyelowo v. WAEC Suit No: NICN/AK/37/2012 delivered in Ibadan, on 25/09/2014.

 

  1. Counsel submitted again that where there is a wrongful dismissal in a contract of employment that is not governed by statue, the employee can only claim damages for breach of contract; he cannot claim arrears of salary and reinstatement, citing Patrick Ziideeh v. River State Civil Service Commission [2007] 14 WRN 81 at pg. 107 lines 25-35 (SC). In addition, he argued that the claimant is not entitled to his claim for salaries from the month of June 2015 when his appointment was dismissed to the date that judgment is delivered. Furthermore, counsel contended that  an employer is not obliged to pay for the period the employee did not serve him, unless the Conditions of Service specifically provide for such payment; citing Osisanya v. Afribank Plc. [2007] 6 NWLR (Pt. 103) page 565 (SC) and Evans Bros Nig. Publishers Ltd v. Falaiye [2003] 12 NWLR (Pt. 838) 564 CA.. He urged the Court to so hold.

 

  1. CLAIMANT’S WRITTEN ARGUMENTS

In respect of the defendant’s preliminary point on the validity of the deposition on oath of Mrs. A. O. Awolope; the Defendant’s D.W.1, counsel noted that the defendant filed its Statement of Defence with the witness deposition on oath of its lone witness on May 15, 2017. However, the deposition on oath of the Defendant’s witness, Mrs. Awolope Adenike O. was signed and dated May 10, 2017 while the Commissioner for Oaths recorded that she was before him on May 15, 2017.

To counsel, the implication of this is that the deposition on oath of D. W. 1, Mrs. Awolope O. Adenike did not testify on the facts as contained in the Statement of Defence on May 10, 2017; before the Commissioner for Oath of the National Industrial Court, Ibadan; because the Commissioner of Oath signed the written statement on oath on May 15, 2017.  In essence, the Deponent did not appear before the Commissioner for Oaths as required by law but rather sat in the corner of her office and signed the document and forwarded same to the Commissioner for Oaths of this Honourable Court to just sign. Counsel also submitted that this act is unacceptable and reprehensible. He referred the Court to Paragraph 11 of the Defendant’s witness deposition on Oath; Section 2 of Oaths Act CAP O1 LFN 2004; Order 40 Rules 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the case of Magnusson v. Koiki & Ors [1993] 12 SCNJ 114. He submitted that the written statement of oath of D.W.1 is incompetent and urged the Court to so hold.

  1. In his final written address, counsel to the claimant raised issues for determination thus:
  2. Whether in view of the pleadings of the parties and the totality of evidence adduced, the letter of dismissal dated 13th day of May 2015 is not irregular and wrongful in law.
  3. Whether the common law position on Master-Servant relationship is not of moment any longer in view of the provisions of Termination of Employment Convention 1987 (No.158) and Recommendation No. 166 of the International Labour Organization Treaty which has been incorporated into our Labour law by virtue of S. 254 (C) (1) (4) and (h) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

iii.   Whether this Honourable Court is not empowered to administer remedies where there is an obvious injustice; ubi jus, ibi remedium.

 

  1. Arguing the first issue, counsel contended that where facts are admitted by a party who is in position to deny same and who has not suffered any disability to controvert any fact but seem to have admitted same, such fact will need no further proof, referring to  Agbanelo v. Union Bank Plc. [2000] FWLR (Pt. 13) pg. 2197 @ P 2203. He referred to the admitted paragraphs; 1, 2, 3, 5, 7, 8, 14, 16, 17, 19, 20, 24 and 25 of the Statement of Claim and purportedly claimed to have denied in paragraphs 4, 6, 9, 10, 11, 12, 13, 15, 18, 21, 22, 23, 26, 27, 29 and 30 of the same process. He maintained that there is no paragraph in the Statement of Defence that contradicts the averment in the Statement of Claim filed by the claimant and since the Defendant admitted these facts, the requirement of law on the claimant is minimal. To counsel, the claimant in this instant case is required to prove that his letter of dismissal dated May 13, 2015 is irregular and wrongful in law, he has the onus to prove at least one of the followings: that the dismissal or procedure leading to the dismissal is a breach of his Natural Justice; that the dismissal is a breach or an infraction of the right protected by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the dismissal is a breach of the Conditions of Service that regulates his appointment. He referred the court to the cases of Wuyah v. Juma’a Lg. Kafanchan [2013] All FWLR (Pt. 659) pg. 1171 and Ante v. University of Calabar [2000] 17 WRN 73.

 

  1. Counsel went on that the principle of natural justice imposes obligations on persons who have power to make decisions affecting other people to act fairly, in good faith, without bias and to afford the person acted against the opportunity to be heard and to adequately state his case before decision is made. To him, Natural justice is divine law or divine justice; referring to in Exhibit C.12 and Exhibit C9. He argued again that item number 5 in the terms of reference of the Panel to Investigate is imported from the investigation conducted by Zonal Coordinator, which is reported in EXHIBIT C12 used to establish the panel as there is nothing from the Report of the Panel to show that they invited the Zonal Coordinator, or the Deputy Director (Audit), Mr. S.O Oluwayemi-Odidi to testify or lend credence to this finding as no fresh parade was done by the 3-man panel).

 

  1. Counsel also noted that the panel under paragraph 4 of the conclusion of their Report in Exhibit C9 could not recommend appropriate punishment against the Claimant because he was not found culpable as included in the terms of reference establishing the panel because of the fact that there was no clear evidence to confirm Mr. Adeleke’s culpability in the investigated case.

 

  1. Counsel furthermore, argued that the dismissal is a breach or an infraction of the claimant’s right protected by the Constitution of the FRN, 1999 (As Amended). He continued that the Claimant who was being investigated by the panel established by virtue of Exhibit C12 that he was not allowed at any point in time to cross-examine his accusers. This means that Waheed Adeleke was never allowed by the panel to confront Mr. Esumike Godspower as could be gleaned from the Panel’s report in Exhibit C9.

 

  1. Additionally, counsel contended that the dismissal of the Claimant by the Defendant was a breach of the Conditions of Service that regulates the employment relationship between the parties as contained in S.10.15 of Exhibit C10. That contrary to S.10.15 (c) & (d) of Exhibit C.10, there was no point in time when the Claimant was allowed to face his accuser by the 3-man Investigating Panel and that all the documents used were not given to him to react to; even though it is in evidence that those pieces of papers were received by the Panel behind the Claimant. He went on that by the arguments in paragraphs 5.6 and 5.7 of the Final Written Address of the Defendant; the whole issue was initiated by a letter dated March 24, 2014; which was received after Mr. Esumike Godspower had appeared before the 3-man Investigation Panel on March 17, 2014. By virtue of paragraph 5.3 of that address, Counsel to the Defendant submitted that the Claimant admitted that he was given a query. To the claimant’s counsel, giving and responding to query is not enough to satisfy the requirement of fair hearing.

 

  1. Counsel again contended that assuming without conceding that the panel followed the principle of fair hearing, he maintained that the panel did not recommend any punishment at all not to talk of dismissal in its findings and investigation, yet the management proceeded to dismiss the Claimant on the same issue based on the Panel’s report. To counsel, this is against the procedural fairness; which employers should observe and that employer in this instance must abide by its Panel’s Recommendation.

 

  1. Arguing issue two whether the common law position on Master-Servant relationship is of any moment, counsel submitted that by the provisions of the Termination of Employment Convention 1982 (No. 158) and Recommendation No. 166 of International Labour Organization Treaty, of which Nigeria is a signatory to; the Defendant cannot just terminate the Claimant’s employment for bad or no reason at all. He went on that this treaty is to prevent employers from acting in bad faith against employees and to prevent discrimination and abuse of their powers over their employees and the provision governs all forms of employment in Nigeria, whether Master – Servant or Statutory flavoured employment in Nigeria. To counsel, therefore; the decisions in the cases of Simeon O. Ihezukwu v. University of Jos (Supra); Faponle v. University of Ilorin Teaching Hospital Management Board; Eyutchae v. Nig. Television Authority; Oyedele v. Ibadan University Teaching Hospital; Lake Chad Research Institute v. Ndefoh and Nfor v. Ashaka Cement Co. Ltd all cited & relied on by the defendant will not be apposite in the instant case as there were all decided without recourse to this Convention which abhors such practice by employers.

 

  1. Responding to Paragraph 5.16.6 of the defendant’s Final Written Address to the effect that the Defendant is the final authority in this matter and that the Council can take decision that is different from the conclusion or recommendation of the ad-hoc administrative panel set up by its Branch or Zone in the exercise of its powers under the West African Examinations Council Act, Cap W4 LFN 2004; counsel submitted that the decision of the defendant violates the principle of equity and fair hearing, which is a Constitutional provision and which supersedes any contrary statute such as the West African Examinations Council Act, relying on Ante V. University of Calabar (Supra) and Imade v. I.G.P. (Supra).

 

  1. In reaction to Paragraph 5.16.6 of the defendant’s Final Written Address that  the employment of the Claimant is not with statutory flavour to warrant the grant of his reliefs, particularly reliefs (c) and (d); counsel submitted that the court is imbued with powers to look at the manner in which, the employee’s employment was terminated or dismissed with the eyes of equity in determining the claims or reliefs sought, citing Imoloame v. W.A.E.C; W.A.E.C v. Morgan Ngozi Uzowuru; Godfrey Isievwore v. National Electric Power Authority; Patrick Ziideeh v. River State Civil Service Commission; Osisanya v. Afribank Plc.; Evans Brothers Nig. Publishers Ltd v. Falaiye (All Supra). He continued that this Court can review the procedure and reasons adduced by the Defendant in arriving at the dismissal of the Claimant. Counsel further submitted that the Claimant is entitled to the damages sought in his claim. He urged the Court to declare the dismissal as invalid and to reinstate the Claimant to his position or in the alternative award damages that is commensurate to assuage the wrongful dismissal of the Claimant by the Defendant; relying on Nigeria Marketing Produce Marketing Board v. A.I. Adewunmi [1972] 1 All NLR (Pt.2) 43 @ 437; S. 254C (1)(f) and (h) and (2) of the Constitution of the FRN, 1999 (As Amended); Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc. [2015] 58 NLLR 92; Order 5 Rule 6(1) of the National Industrial Court (Civil Procedure) Rules, 2017.

 

  1. Arguing issue three of whether this Court is not empowered to administer remedies where there is an obvious injustice, counsel submitted that in line with International best practices in labour or industrial relations, which this Court is empowered to observe, reinstatement would be awarded where it is essential to protect an employee against an unjust or unfair exercise of the employer’s right of dismissal; citing Articles 9 and 10 of the Termination of Employment Convention 1982 (No.158). He contended that the claimant was dismissed based on a procedure that is wrongful, unlawful and unconstitutional. Therefore, the Court can grant remedy of reinstatement to assuage this wrong; citing Bello v. A.G. Oyo State [1986] 5 NWLR (Pt. 45) 828 and Labode v. Otubu [2001] 7 NWLR (Pt. 712) 256.

 

 

 

 

  1. Reply on point of law

Counsel to the defendant filed a Reply on Point of Law to the claimant’s Final Written Address wherein counsel submitted that although Section 254C(2) of Constitution of the FRN, 1999 empowers the National Industrial Court of Nigeria to apply the conventions ratified by Nigeria in matters before it. He continued that the Termination of Employment Convention 1982 (No. 158) has Not been ratified by Nigeria. Therefore, it is unenforceable as a treaty within Nigeria, referring to the book titled: The National Industrial Court of Nigeria – Law, Practice and Procedure [2013] by Offomze D. Amucheazi and Paul U. Abba, at pages 296 (table 1), and Page 302 paragraph 1.

 

  1. Responding to claimant’s paragraph 8.0, counsel submitted that although section 7(b) of the N.I.C Act, 2006 empowers the N.I.C to apply good or international best labour practices in matter before it; re-instatement of a dismissed employee in private employment can be granted by the court only where that dismissal was based on Union activities. He maintained that in the present case, the dismissal of the Claimant was not based on Union activities; referring to the book by offomze D. Amucheazi and Paul U. Abba, cited above, at page 310 and the cases in footnote 9 therein of Oyo State Government v. Alhaji Bashir Apapa (unreported judgment of the NIC in Suit No: NIC/36/) delivered on 03/10/2007.

 

  1. COURT’S DECISION

I have gone through the facts of this case, the written arguments of the parties including their cited authorities; both case and statute laws, from all of these, I am of the considered view that the following issues need to be resolved in this case:

  1. Whether or not the dismissal of the claimant from the services of the Defendant was by due process and or wrongful.
  2. Whether or not the claimant is entitled to be re-instated to his post and to be paid arrears of salary from June 2015 to the date of judgment.

 

  1. However, before going into the merit of this case, let me resolve some preliminary points. Firstly, on whether the written statement on oath of D.W.1 should be discountenanced; in the defendant’s final written address, its counsel made a preliminary argument on the validity of the deposition on oath of Mrs. A. O. Awolope (D.W.1); the sole witness of the Defendant. Counsel noted that the written statement on Oath was defective because the witness inserted May 10, 2017 against her signature as the date she made the oath; ever before she appeared before the Commissioner for Oaths who signed the deposition on May 15, 2017. Counsel urged the court to treat this as an error, an innocent mistake of the deponent and as an irregularity that can be overlooked and cured. He urged the Court not to strike out the written statement on Oath so that all the evidence of the defendant will not be thrown away.

 

  1. To the claimant’s counsel, the implication of the deposition on oath of D. W. 1 is that she did not testify on the facts as contained in the Statement of Defence on May 10, 2017; before the Commissioner for Oaths of the National Industrial Court, Ibadan; because the Commissioner of Oaths signed the written statement on oath on May 15, 2017.  He went on that this rather means that D.W.1 sat in the corner of her office and signed the document and then forwarded same to the Commissioner for Oaths of this Court to just sign. He continued that this act is contrary to the provision of Section 2 of Oaths Act Cap O1 LFN 2004; Order 40 Rules 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the decision in Magnusson v. Koiki & Ors [1993] 12 SCNJ 114. He submitted that the written statement of oath of D.W.1 is incompetent, urged the Court to so hold and to discountenance same.

 

  1. I have read the evidence of the claimant again particularly including the D.W.1’s testimony under cross-examination. It is not shown that D.W.1 gave her evidence at the comfort of her office or home on May 10, 2017 as contended by the claimant’s counsel in his address. This means that the claimant’s counsel cooked up this evidence of where D.W.1 gave or wrote her evidence or that the counsel based his argument on this issue on speculation. It is trite that the address of counsel, no matter how brilliant cannot take the place of evidence and pleading, where there is none. See the cases of UBN Plc. & anor v. Ayodare & Sons (Nig.) [2007] All FWLR (Pt. 383)1 at 42 paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 16. It is also trite law that Court does not operate on speculations but on facts proven by litigants. In the circumstances, I find that even though D.W.1 dated her signature on May 10, 2017 on her written statement on oath while the Commissioner for Oath dated his signature on May 15, 2017; there is no evidence before the Court on where D.W.1 was when she made the written statement on oath.

 

  1. The written statement on oath of D.W.1 is at pages 241 to 243 of the Court’s record. D.W.1 signed and dated it 10/5/17 while the Commissioner for oaths, Segun Gideon Ojo signed and dated it May 15 without indicating the year. In essence, both D.W.1 and the Commissioner for Oaths made mistakes in indicating the dates that they signed the written statement on oath of D.W.1 before the Court. I agree with the defendant’s counsel that if this process is thrown away by the Court as a result of this identified error on it, which is partly that of the witness and partly that of the Commissioner for oaths of this Court; then the defendant will have no evidence at all on its pleadings in this case. Consequently, this Court is inclined to do substantial justice in this; therefore, I hereby treat the error on the dates the written statement on oath of D.W.1 was signed by the witness and the Commissioner for Oaths as an irregularity that the Court accordingly excuses by virtue of the inherent discretion of the Court and I so hold. I further hold that the written statement on oath of D.W.1 before the Court will be relied on in this judgment.

 

  1. Secondly, on Court’s reliance on a cited unreported authority. 

Additionally, in paragraph 5.6.1 of the defendant’s final written address, its counsel referred the court to an unreported case with Suit No: NICN/AK/37/2012 between Mrs. Tawakalitu Ronke Oyelowo v. West African Examination Council delivered on September 25, 2014. The Certified True Copy of same was not frontloaded before this court neither was it supplied with the address as required by Order 45 Rule 3 (1) of NICN (Civil Procedure) Rules, 2017. Since same was not done in the circumstance of this case, the unreported cited authority is accordingly discountenanced in this judgment.

 

  1. Thirdly, on the nature of the employment relationship between the parties

Throughout the pleadings of the claimant before the Court, it is not stated that the employment relationship between the claimant and the defendant is one with statutory flavour. In paragraph 2 of the Statement of claims and the witness statement on oath, it is pleaded and evidence is given that the Defendant is a body corporate established to conduct examinations for students at secondary school levels especially for those aspiring to further their education into Tertiary Institutions. There is no pleading neither is there evidence showing that the employment relationship between the claimant and the defendant was governed by statute or a regulation derived from any statute. It is trite law that a contractual relationship between an employer and an employee is said to be laced with statutory flavour if that relationship is created and governed by statute or regulations derived from a statute(s); see Iyase v. Ubth Management Board [1999] LPELR-6026(CA). Therefore, I find and hold that the relationship between the parties in this case is not governed by any statute; and so, the claimant’s employment with the defendant is a private employment otherwise known as master and servant relationship.

 

  1. Fourthly, on what regulates the employment relationship between the parties

Since I have held above that the employment relationship between the parties is not with statutory flavour but that it is a private employment relationship; the next hurdle to cross is for the court to determine what the terms and conditions of service on the employment are, in order to establish the contractual relationship between the employer and the employee. In doing this, the court is bound to look at the letter of appointment of the claimant and any service regulations connected with the establishment of employer; see Odiase v. Auchi Polytechnic, Auchi [2015] 60 NLLR (Pt. 208)1 CA  at 23-24, para F-A.

 

In paragraph 2 of the statement of “claim”, I find that the claimant pleaded the Code of Conduct for West African Examinations Council (WAEC) and in paragraph 3 of the statement of “claim”, I further find that the claimant pleaded his letter of Offer of Appointment of July 1, 1993. Therefore, I hold that; the rights, duties and liabilities of the parties in this case will be determined by looking at the documents presented to the court on the issue; these are: the Code of Conduct for West African Examinations Council (WAEC) (Document C.1, letter of Offer of Appointment of July 1, 1993 (Document C.2) and the Conditions of Service of the defendant (Document C.10). Consequently, I hold that terms and conditions of service between the parties in this case are as stated in Documents C.1, C.2 and C.10 in this case.

 

  1. Now to the merit of the case; Whether the dismissal of the claimant followed due process

Counsel to the claimant contended in paragraphs 7.17 and 7.18 of his final written address that the defendant did not follow due process in dismissing the claimant in this case. He referred the Court to section 10.15 of the Conditions of Service for National Staff of the Defendant (Document C.10). In particular, counsel submitted that the Defendant did not comply with items (c) and (d) of section 10.15 of Document C.10; as the Claimant was not allowed to face his accuser by the 3-man Investigating Panel, neither was any of the documents used by the Panel given to him to react to. Counsel maintained that those pieces of papers were received by the Panel without the Claimant’s knowledge contrary to the provisions of (c) and (d) of section 10.15 of Document C.10. On the other hand, the defendant argued that it’s complied with due process in dismissing the claimant from its employment.

 

  1. Document C.10 is the Conditions of Service of the Defendant, its section 10.15 is on procedure to establish guilt of a major offence and it states:

If an employee is accused of a major offence, the following procedure shall be followed, the emphasis are mine:

  1. The employee shall be notified in writing of his offence and he shall be given a full opportunity to defend himself.
  2. The matter shall be investigated by the Head of office or his representative.
  3. If witnesses are called to give evidence, the employee shall be entitled to be present and to put questions to them.
  4. No documentary evidence shall be used against the employee unless he had been previously supplied with a copy thereof or given access thereto.
  5. The penalty to be imposed shall be in conformity with the gravity of the offence committed.
  6. If the offending staff is a senior staff i.e on ECSS07 and above, the recommended penalty shall be presented to the Nigeria Administrative and Finance Committee for approval.
  7. If an employee is charged to court for a criminal offence, Council may, upon consideration of the count, dismiss the employee.
  8. In lieu of dismissal, Council may at its discretion impose some other penalties such as reduction in rank, deferment/withholding of increment or reprimand.
  9. A dismissed staff shall not be entitled to any separation benefits.

 

  1. The law generally in Employment matters on fair hearing is that when an employer makes an allegation against its employee; the employer is said to have complied with the rules of fair hearing if it gives the employee a written query stating the allegation and the employee is allowed to response to the query in writing before disciplining him. See Edet v. Inspector General of Police & Anor [2015] 54 NLLR (Pt. 182) 154 at 300-301 paragraphs F-A and Baba v. N.C.A.T.C [1991] 5 NWLR (Pt. 192) page 388 at 418-419.

 

However, in the instant case, the conditions of employment of the claimant require inter alia in paragraphs (c) & (d) of section 10.15 in Document C.10 that c. If witnesses are called to give evidence, the employee shall be entitled to be present and to put questions to them and d. No documentary evidence shall be used against the employee unless he had been previously supplied with a copy thereof or given access thereto. The arguments of the claimant is that, in paragraphs 5.6 and 5.7 of its Final Written Address, the Defendant maintained that this matter was originated by a letter dated March 24, 2014 and received from Mr. Ezumike Godspower after Mr. Ezumike Godspower had appeared before the 3-man Investigating Panel on March 17, 2014.

 

  1. This means that Mr. Godspower gave the letter to the Panel after he appeared before the Panel and as it is, there is no evidence to show that the claimant was allowed to confront Mr. Godspower who alleged that the claimant assisted him to procure fake result and fake Certificate before the Panel in order to ask him questions on the allegation against him. There is also no evidence before the Court showing that Mr. Godspower’s letter of March 24, 2014 was shown to the claimant neither was the letter even exhibited in this case. All these steps are mandatory requirements to comply with by the defendant in line with the provision of paragraphs (c) & (d) of section 10.15 of Document C.10 but which the defendant has failed to do in this instance. In the circumstance, I find that the defendant did not comply with due process as mandated in section 10.15 (c) & (d) of Document C.10. Therefore, I hold that the mere fact that the claimant was given query and he answered the query via Documents C.3 and C.4 respectively has not satisfied the peculiar requirement/obligation of the defendant in Document C.10.15 (the conditions of service). In addition, I hold that the defendant has not complied with terms and conditions of employment of the claimant before dismissing him in this case. In other words, I hold that the defendant did not follow due process in dismissing the claimant in this case.

 

  1. On Whether the dismissal of the claimant was wrong.

The term ‘dismissal’ means to release or discharge a person from an employment. Dismissal of an employee, very often than not, results in loss of terminal benefits and it equally carries an unpleasant ‘opprobrium’ to the unfortunate employee; see FBN Plc. v. Mmeka [2015] 6 NWLR (Pt. 1456) CA 507 at 520, paragraphs E-G. As a result of this, disciplinary act of dismissal needs to be strictly done as specified in the terms and conditions of employment and justified by evidence on matters of private employment.

 

Document C.7 is titled ‘Dismissal’ and it is dated May 13, 2015. By it, the claimant was dismissed from the service of the defendant on ground of his misconduct, contrary to chapter 10.06 (b),(ix), (x) and (xiv) of the Conditions of Service for the National Staff of the Council in Nigeria, (Document C.10). See page 42 of the record for a copy of Document C.7. Chapter 10.06 of Document C.10 is on Classification of Offences. Chapter 10.06 (b) states the major offences while chapter 10.06 (b),(ix), (x) and (xiv) itemize falsification of results, aiding and abetting examination malpractices and any conduct likely to bring Council into disrepute; as part of the major offences under the conditions of service. See page 202 of the record.

 

  1. Document C.9 is the copy of the Report of the 3-man Panel that investigated the allegations against the claimant; it is at pages 184 to 187 of the record.  Paragraph 4 of the conclusion of the Panel’s Report states; (emphasis mine):

Similarly, having denied knowing Mr. Esumike Godspower from the onset, coupled with the disappearance of the register claimed by Mr. Esumike Godspower to have been signed by him, which was handed over to him by Mr. Adeleke Waheed; there was no clear evidence to confirm Mr. Waheed Adeleke’s culpability. The panel is of the opinion that the Management should consult HRM Department concerning Mr. Waheed Adeleke based on the findings/observation of the Panel in paragraphs 3, 4, and 5 above.

 

  1. In other words, the Panel could not recommend any punishment against the Claimant because he was not found culpable as there was no clear evidence to confirm Mr. Adeleke’s culpability in the investigated case against him. This being the case, I find that the Panel could not find any evidence to confirm Mr. Waheed Adeleke’s culpability so as to warrant his dismissal from the defendant’s employment. In the same vein, I find that the Panel could not find any evidence against the claimant to establish the three major offences of falsification of results, aiding and abetting examination malpractices and any conduct likely to bring Council into disrepute against him.

 

  1. Regardless of the Report of the Panel set up by the defendant to investigate the allegations against the claimant, the Management of the defendant stated in the opening paragraph of the Letter of dismissal (Document C.7) that it considered the report of the same Panel and observed that the claimant’s action(s) amounted to gross misconduct contrary to Chapter 10.06 (b),(ix), (x) and (xiv) of Document C.10.

 

Furthermore, D.W.1, the only witness of the defendant testified under cross – examination this way:

Our panel was the only one set up to investigate the claimant at Ibadan. I don’t know whether Document D.1 was accepted by the defendant or not. Our panel did not recommend the Claimant for dismissal.

The petition written by Godspower E was the genesis of this report.

During our investigation, we saw allegations of issuance of fake result, impersonation & issuance of fake certificates.

The defendant has strong room where we keep sensitive documents like results & certificates. The claimant was not the only one that had access to the strong room when he was with the defendant. The defendant did not report the claimant and Mr. Azubuike to the police.

 

  1. Document D.1 mentioned in D.W1’s cross-examination is the defendant’s version of Document C.9; the Report of the 3-Man Panel that investigated the alleged major offences against the claimant. This version is at pages 247 to 250 of the record. With the content of the 3-Man Panel’s Report as shown above, one then wonders which report the Management of the defendant acted upon in dismissing the claimant in this case. Based on these findings, I hold that the defendant had no bases for dismissing the employment of the claimant as it did in this case.

 

It is trite that in private employment, the employer may decide not to give reason for the determination of the employment of its employee, but if gives reason; the said reason must be valid and justified. See Okwunakwe v. FBN [2015] 53 NLLR (Pt. 180) 568 at 595-596 paragraphs G-B. Although the option of the employer of not giving reason for determining the employment of its employee is now becoming offensive to the modern labour jurisprudence; in view of the current International Labour Standard and International Best Practice that the Constitution of the FRN, 1999 (As Amended) allows the NICN to look at or to bear in mind while deciding on Employment matters like the instant one; see the provision of section 254C (1) (f) & (h) of the Constitution of the FRN, 1999 (As Amended).

 

  1. In the instant case, the defendant’s reasons for dismissing the claimant from its service are gross misconduct against chapter 10.06 (b),(ix), (x) and (xiv) of the Conditions of Service (Document C.10). The offences are falsification of results, aiding and abetting examination malpractices and any conduct likely to bring Council into disrepute. In order to show that the defendant comply with the conditions of service, it set up a 3-MAN Panel to investigate the claimant on these allegations. The Panel came up with its report and conclusion that the claimant is not culpable of any of the allegations and it recommended no sanction or punishment against the claimant. See paragraph 4 of Document C.9 and Paragraph 5 of Document D.1. But if the defendant was still bent on sanctioning the claimant despite the Panel’s recommendation, the terms of employment still allows the Council to use its discretion to impose some other penalties such as reduction in rank, deferment/withholding of increment or reprimand in lieu of dismissal. See section 10.15 (h) of Document C.10, the Condition of Service. In this circumstance, I findings I hold that the punishment melted on the claimant by the defendant is not in conformity with the gravity of the offence committed as required by section 10.15 (e) of Document C.10 the Conditions of employment as the claimant was even not found culpable of any offence. Consequently, I hold that the defendant did not comply with due process and procedure as stated in the conditions of service, Document C.10 in dismissing the claimant in this case.

 

  1. Dismissal as a disciplinary measure is a very punitive one as it deprives the victim of the privilege of enjoying his terminal benefit. In the instant case, the claimant who had put in 22years in service was not paid any terminal benefit because of his dismissal. See paragraph 5 of the Statement of Claims and paragraph 5 of his Written Statement on Oath on August 18, 2015 respectively. Therefore, the law requires that for an employee to lose so much, the alleged offence(s) must be strictly proved and it must be done in absolute compliance with the terms and conditions of employment of the claimant in a private employment relationship. This, the defendant has failed to do in this case. Consequently, I declare that the dismissal of the claimant was done wrongly and without due process, contrary to the terms and conditions of the claimant’s employment. The said dismissal through Document C.7 is accordingly set aside.

 

  1. CAN THE CLAIMANT BE RE-INSTATED?

The setting aside of the claimant’s dismissal notwithstanding, since his employment with the defendant is not with statutory flavour as held above, he is not entitled to re-instatement. This is because the Court cannot force a willing employee on an unwilling employer; see Union bank of Nigeria Plc. v Emmanuel Aderewaju Soares [2012] 29 NLLR (Pt. 84) 329. The wrongful determination of the claimant’s employment in the instant case evinces the defendant’s intention not to work with or have the claimant work with the Council again. In the circumstance, this Court hereby holds that the defendant terminated the employment of the claimant with effect from May 13, 2015 when his employment was wrongly dismissed. I further hold that the claimant shall be paid his full terminal benefits in accordance with the terms and conditions of his employment with the defendant less his indebtedness to the defendant. See the following unreported decisions of this Court on the issue of the defendants evincing intention to end employment relationships by wrongly dismissing their employees: Mr. Christian Ehisotie Ilegbodu v. Skye Bank Plc. Suit No: NICN/PHC/110/2013 judgment delivered on June 3, 2015; Mr. Babatunde Ogunsowo v. Dana Motors Ltd. Suit No. NIC/LA/117/2011 judgment delivered on July 10, 2013 and the judgment delivered on December 11, 2014 in Suit No: NICN/PHC/152/2013 between Nwigah Goteh v. Juanita Hotel Ltd. I further hold that the claimant is entitled to his terminal benefits less his indebtedness effective from May 13, 2015.

  1. On the whole I declare, hold and order as follows:
  2. I hold that the error on the written statement on oath of D.W.1 is excused with the inherent discretion of this Court in order to do substantial justice in this case.
  3. I hold that the unreported case with Suit No: NICN/AK/37/2012 between Mrs. Tawakalitu Ronke Oyelowo v. West African Examination Council delivered on September 25, 2014; cited by the defendant’s counsel without supplying its certified copy is hereby discountenanced in this judgment.
  4. I hold that the employment of the claimant in this case is not with statutory flavour, I further hold that he had a private employment relationship with the defendant.
  5.  I hold that the dismissal of the claimant by the defendant did not follow due process, it was done contrary to the terms and conditions of his employment it was wrongful and it is accordingly set aside.
  6. I hold that the claimant is not entitled to re-instatement because his employment is not with statutory flavour.
  7. I further hold that the wrongful dismissal of the claimant’s employment evinces that the defendant had no intention to continue working with the claimant.
  8. Consequently, I hold that the defendant terminated the employment of the defendant with effect from May 13, 2015 when his employment was wrongly dismissed.
  9. I hold that the defendant is to pay the claimant his terminal benefits in line with the terms and conditions of his employment less his indebtedness
  10. I order the defendant to pay the claimant the judgment debts including cost of N250,000.00 within 60days from today.

Judgment is entered accordingly.

 

Hon Justice F. I. Kola-Olalere

Presiding Judge

 

 

 

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