IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO
DATED: 20TH MAY, 2019 SUIT NO: NICN/AK/21/2016
BETWEEN:
- IDONGESIT UDOM CLAIMANT
AND
- NATIONAL BUSINESS AND TECHNICAL
EXAMINATION BOARD (NABTEB) DEFENDANTS
- REGISTRAR/CHIEF EXECUTIVE OF NABTEB
REPRESENTATION:-
- A. E. OKPOSIN APPEARS FOR THE CLAIMANT
- I. ETU APPEARS FOR THE DEFENDANTS
JUDGMENT
This is a transferred case from the Federal High Court of Justice, Benin, Edo State. The case was transferred to this Court on 13th June, 2016 whereupon the claimant filed his complaint and Statement of Facts in accordance with the Rules of this Court and claimed against the Defendants jointly and severally as follows:
(a) A declaration that his termination was unlawful, wrongful and against Regulations.
(b) An Order for reinstatement of his appointment.
(c) Payment of his salary from 15th July, 2004 to date.
(d) General damages of N2 Million against the Defendants jointly and severally.
(e) An Order that the 1st Defendant publish a retraction and an apology to him in both local and national newspapers.
The claimant’s case is that he was employed in the service of the 1st defendant on the 15th August, 1997 and he worked at the National Headquarters of the 1st Defendant Office in Benin City, serving in the Test Development Department Subject Officer I on HATISS 8/1. He averred that his appointment was confirmed on 5th January, 2000 and he was also promoted to the rank of Senior Test Development Officer on HATISS 9/1 vide a letter dated 21/02/2001. He stated that he was re-designated and redeployed to Uyo Zonal Office on 4th April, 2001, to take charge of Uyo Zonal Office, and he took over from one Mr. Nkata.
He averred that he noticed that Mr. Nkata had connected light to one hair-dressing saloon ran by one Mercy at the expense of NABTEB when he assumed office and that a sum of N82,720.00 was missing upon which Mr. Nkata issued a cheque which he deliberately wrote in words an amount different from the figures. The cheque was presented to the Bank and it was returned, he reported the matter to the Police and instructed one Miss Akon Umana to contact Mr. Nkata to return the sum of N82,720.00 to the office. He stated that the incident was reflected in his report on taking over to the Registrar/Chief Executive.
He affirmed further that some staff in the Registrar’s Office and his Acting Head of Department, Mr. A. A. Olaniran who are friendly with Mr. Nkata were infuriated that he reflected the incident in his report and that it was this that resulted in the dismissal of Mr. Nkata.
The claimant maintained that an Investigation was conducted into the incident and despite the fact that the cheque issued by Mr. Nkata and the light illegally extended to a lady hairdresser operating saloon at the expense of NABTEB was seen, the investigating team went on to recommend that he raised a false alarm and he was issued with a query and thereafter demoted. He further averred that he later found out that Mr. Nkata was relating with his former boss (Dr. Idehen), his Acting Head of Department (Mr. A.A. Olaniran) and some of the officers in the Registrar’s office who also were members of the Investigating Panel in this case.
The claimant maintained that his job included among others, the distribution of question papers to custodians (i.e. Banks) and sometimes in 2004 during the NABTEB May/June Examination, the Claimant was mandated to distribute question papers to 28 Centres in Abia State. He stated that during the process of sorting the question papers into the different examination centres in Abia State, he inadvertently placed one parcel of a subject meant for candidates of Federal Science and Technical College (FSTC), Ohanso for Ugo Commercial Secondary School, Aba, Abia State. He further averred that the inadvertence committed by him was purely a mistake which any reasonable human being could have made and it neither caused any harm to the students of the centre as they all took the exam on the date scheduled, nor caused any embarrassment to the Board.
He averred that there was mis-sorting of one of the parcels he was to distribute on behalf of the 1st Defendant in respect of its examination and that the mis-sorting led to the setting up of an investigating panel to look into the incident, he alleged lack of fair hearing in the composition and procedure of the panel as a result of which at the end of the investigation of the panel, he was issued with a letter terminating his appointment. In addition, the claimant alleged he was blacklisted as an examiner by the 1st Defendant and same was publicized in some national newspapers, The claimant averred that he is entitled to:
- a)Reinstatement,
- b)Special and General damages,
- c)Apology for the malicious publication by the 1st Defendant
- d)Pension and Gratuity
WHEREOF he claims against the Defendants as aforestated.
The defendants filed a joint statement of defence on the 24th of October, 2017 and all other accompanying processes, the defendants obtained leave to call additional witness and to file the additional witness statement on oath and documents on the 18th of July, 2018.
The defendants denied each and every allegation of material facts in the Claimant’s Statement of Facts as if each allegation of fact were herein set out and specifically denied.
The Defendants case is that the Claimant was queried on the 9th day of May, 2001 for making false allegations against one Mr. Nkata and was consequently demoted by the 1st Defendant after writing a letter of apology to the Chief Executive of the 1st Defendant on the issue.
The defendants also averred that the claimant was responsible for the mis-sorting of a parcel which he collected and signed for, meant for its examination and for onward transmission to its custodians. The parcel however could not be found at the distribution point. The defendants averred further that based on the findings of the panel, the claimant was adjudged to be careless, negligent and dishonest in the handling of sensitive materials of the 1st Defendant. The Defendants maintained that the claimant was given fair hearing throughout the investigation and it was based on the panel’s recommendation that the claimant’s employment was terminated instead of dismissed in line with the available practice. They also stated that the claimant accepted the termination of his appointment in good faith when he collected his three (3) month salary in lieu of notice.
The defendants maintained that the Claimant is not entitled to any Staff Pension Scheme and he is not qualified for both pension and gratuity as he served the 1st Defendant for only 7 years.
The Defendants also raised issues of law in their pleadings as follows;
(a) That this suit is statute barred contrary to the provisions of the Public Officers Protection Act.
(b) The 2nd Defendant is a non-juristic person and can neither sue nor be sued.
AND/OR in the alternative,
(c) The 2nd Defendant is the agent of a known principal and can therefore not be sued in an action for alleged breach of contract.
WHEREOF the defendants contended that the Claimant is not entitled to any of the Reliefs sought in his Statement of Facts and accordingly urged the Court to dismiss the Claimant’s suit in its entirety with punitive cost, as same is speculative, frivolous, baseless gold digging and unmeritorious.
The claimant filed a Reply to the Statement of Defence, whereof he responded to some of the allegations against him in the Statement of Defence.
Trial commenced in this suit on the 23rdJanuary, 2018 with the claimant testifying for himself by as CW1, he adopted his witness statement on oath and additional statement on oath. In the course of giving his evidence, Claimant’s counsel sought to tender some documents as exhibits through CW1, while some documents were admitted without objection, the defendants’ counsel however objected to the admissibility of some of the documents sought to be tendered:
He based his objection on the fact that these documents are public documents and as such ought to have been certified under Section 102 Evidence Act.
The Court in its ruling delivered on 16th April, 2018 rejected some documents and admitted some as Exhibits IU17 – IU19 while four (4) of the documents were marked REJECTED. In all, the claimant tendered Exhibits IU1–IU38, he was thereafter cross examined and he closed his case.
On the 4th of June, 2018 the Defendants opened their defence and called two witnesses, Femi Ojedele as DW1 and Oyana John Mackeans as DW2, they adopted their depositions on oath and identified with some exhibits which the claimant had earlier tendered (i.e. Exhibits IU1, IU6, IU7 and IU20) and tendered Exhibits NB1(I-XXIII), the witnesses were duly cross examined and the Defence thereafter closed their case. The case was thereafter adjourned for the adoption of final written addresses.
The parties adopted their final written addresses on the 25th of February, 2019. The Defendants formulated two issues for determination in their address:
(1) Whether the Claimant employment was properly terminated?
(2) Whether or not from the totality of the evidence on record, the circumstances of this case and on the balance of probability, the Claimant successfully established that he is entitled to the reliefs sought?
On issue one, Counsel to the Defendants submitted that the terms and conditions of service of an employment is the bedrock upon which any claim premised on such employment must squarely rest. He cited the case of REGD TRUSTEES P.P.F.N V SHOGBOLA (2004) 11 NWLR (PT 883) 1 C.A AT PG 15 PARAS D-E and maintained that the Onus is on an employee who complains that his employment has been wrongfully terminated to place before the Court the terms of the contract of his employment with his employer and to prove in what manner the terms have been breached. It is not for the employer to prove them and how they were breached. He cited the case of IDERIMA V. R.S.C.S.C (2005) 16 NWLR PART 951 PG 378 AT 403 PARA E.
He submitted that the type of employment in the instant case is statutory, and stated that the service of the claimant in this case was terminated based on misconduct.
He posited that an employee guilty of misconduct could be dismissed summarily without notice or wages, and all that is required of an employer is to afford the employee fair hearing, he cited the case of UNIVERSITY OF CALABAR V. ESSIEN (1996) 10 NWLR PT 477, 225 AT 262 and argued that the claimant in this case did not adduce any meaningful evidence to substantiate his averments, and the feeble attempt to so do were all destroyed under cross-examination. He submitted that pleaded facts must be substantiated and proved by evidence, in the absence of which the averments are deemed abandoned. He cited the case of DINGYADI V. WAMAKO (2008) 17 NWLR (PT. 1116) 395; AJIBADE V. MAYOWA (1978) 9-10 SC 1; FCDA V. NAIBI (1990) 3 NWLR (PT. 138) 270. The Defendants’ counsel pointed out the fact that their witnesses were not discredited under cross-examination.
On the issue of negligence, counsel submitted that it can be gleaned that the Claimant was given vital materials belonging to the 1st Defendant for onward distribution to custodians in Abia State for which provisions was made for him to spend four days, but he hurriedly executed it in just one day which resulted in negligent misplacement of the parcel. He cited IGHRERINIOVO v. S.C.C. NIGERIAN LIMITED [2013] ALL FWLR (PT. 700) 1240 and submitted that the Claimant was remiss, negligent, reckless and not careful, in handling sensitive examination materials in his custody and this is punishable under the Regulations Governing the Conditions of Service of Senior Staff of NABTEB. A.U. Asemota Esq. of Counsel to the defendants submitted that despite the seriousness of the allegation against the claimant and upon careful consideration of the claimant’s plea for mercy in his representation before the Panel, it was recommended that the dismissal should operate as termination and that he should be given three months’ salary in lieu of notice which the claimant graciously accepted.
He submitted that the allegation against the claimant was duly disclosed to him and he is estopped from denying this. He stated that the Claimant was afforded fair hearing and urged the Court to discountenance the allegation of lack of fair hearing.
On issue two, defence counsel canvassed the argument that the claimant is not entitled to pension and gratuity, and cited Exhibit IU11 and IU12, and submitted that the claimant is not covered by the provisions contained therein.
Finally, Counsel to the defendants stated that the main declaratory reliefs have not been successfully made out by the claimant and so the ancillary reliefs for reinstatement and damages cannot succeed in a vacuum. Also, he posited that the claim for remittance of pension is a non-starter. Consequently, he prayed the Court to resolve all the issues argued herein against the Claimant and in favour of the Defendants.
The Claimant’s Final Written Address was dated and filed on 11th February, 2019 in which four (4) issues were formulated for determination to wit:
- Whether the Claimant’s termination of appointment was unlawful, wrongful and against the Regulations Governing the Service of his Appointment.
- Whether the Claimant is entitled to re-instatement and salary from 15th July 2004 till date, gratuity and pension?
- Whether the Claimant is entitled to general damages.
- Whether the Claimant is entitled to an apology and a retraction of publication made maliciously in national dailies by 2nd Defendant against him.
As an aside, it is worthy of note that learned counsel for the claimant Dr. A.E Okposin in his final written address inadvertently referred to the Exhibits tendered by him as ID, it is on record that the Exhibits were marked IU and not ID by this Court, this is clearly reflected in the record of Court and parties are enjoined to ensure that they abide by the record of Court.
Now on to issue one (1) formulated by learned counsel to the Claimant above, counsel submitted that the Claimant’s appointment is statutory flavoured and stressed that the standard of proof in this category of contract is as stated in the case of Longe v. First Bank (2010) 6 NWLR pt 1189. In the instant case, the laid down procedure guiding the employment is as contained in the NABTEB Regulations Governing the Service of Senior Staff, The Public Service Rules and the Memorandum to the letter of appointment of Claimant. He stated that employees can only be validly terminated by complying strictly with the procedure prescribed in the enabling statute, failure to do so will render the purported termination unlawful. He cited the case of Shitta Bey V. Federal Public Service Commission (1981) 1 SC 40 at 57 – 58, and Ofomaja V. Commissioner of Education, Edo State (1995) 8 NWLR (Pt 411) 69.
The Claimant in this case testified that as a confirmed employee, the Defendants ought to have issued him with a warning or query, he also alleged that he did not appear before any disciplinary panel before his employment was terminated, contrary to the Rules and Regulations guiding his employment. He urged the Court therefore to resolve issue one (1) in favour of the Claimant.
On issue two (2), Counsel for the Claimant submitted that if issue no. 1 is resolved in favour of the Claimant, it follows that he will be entitled to reinstatement, Salary from 15th July 2004 till date, gratuity and pension. He cited the case of SHITTA –BEY V. FEDERAL PUBLIC SERVICE (1981) SC. 40 ALSO REPORTED IN (1985) 2 NWLR (PART 9) 5991.
On issue of Pension and Gratuity, the Counsel argued that the Claimant’s appointment enjoys pension and gratuity. It is pertinent to state categorically that Pension and Gratuity is governed by the Pension Reform Act 2014 as amended and that If the Court resolves issue one (1) in favour of the Claimant, he will not only be entitled to gratuity but also pension as his appointment would have subsisted up to the time of the judgment.
On issue three (3), Counsel for the Claimant argued that the claimant is entitled to General damages. General damages, unlike special damages does not require strictness in proof, it is damages as the law will presume to be direct, natural or probable consequence of the action complained of. He cited SPDC V. TIEBO VII (2005) VOL. 127 LRCN 1274 AT 1301 UJJ & 1302 A and OYENEYINVS. AKINKUGBE (2010) VOL. 183 LRCN 83 AT PAGES 101 EEJJ AND 102 AK and submitted that the claimant had suffered as a result of the action of the 1st Defendant and the malicious publication and blacklisting of his name. Learned counsel stated that the claimant had expended a lot of money filing cases from Federal High Court to Court of Appeal and this Court. He therefore urged the Court to bear all these in mind in awarding general damages of N2,000,000.00 (Two Million Naira) to the claimant.
A.E. Okposin Esq., (Ph.D) submitted on issue 4 that the Defendants in Exhibits IU23 maliciously published the name of the Claimant as a Blacklisted Examiner/Supervisor/Invigilator of the 1st Defendant, an act which has damaged his reputation. Moreso, he stated that the Defendants never led evidence in justification of this act and should therefore be ordered to tender an apology and a retraction should be published in the national dailies. The claimant denied bringing a claim for libel under this issue, but asserted rather that the purpose of bringing this up is to further strengthen his case on malice, and the relief for apology and a retraction is an ancillary relief, which is aimed at setting the record straight.
Finally, Learned Counsel urged the Court to resolve all issues in favour of the Claimant.
The Defendants did not file any Reply on point of law, wherefore the Court adjourned for Judgment.
I have gone through the processes filed in this case and listened to all the witnesses called by both parties at the trial, I have also studied the Exhibits tendered and I have thereafter formulated two (2) issues for determination to wit:
- Whether or not the termination of the claimant’s statutory employment is lawful.
- Whether or not the Claimant is entitled to the reliefs sought.
On issue one, the claimant made out a case that he was employed by the Defendants on the 15th of August, 1997, and was demoted in year 2002 out of malice for reporting his predecessor in office for acts inimical to the Defendants. He testified further that sometimes in the year 2004, there was a case of misplacement of question papers which occurred under his watch that resulted in the defendants setting up a panel to investigate the issue. The claimant stated that he was orally invited to appear before the panel and testified, he however alleged that the findings of the panel was never made known to him. He stated in addition that he was not issued with any query or warning of any kind on the issue thereafter, but was surprised to learn about the termination of his appointment few days later. He queried the composition of the Investigation Panel, and alleged that the chairman of the panel was not qualified to head the panel and its members were not appointed by the Governing Board as required by the law. He added that he was not given fair hearing before his dismissal.
The defendant on the other hand contended that the claimant was negligent in handling sensitive examination materials belonging to the 1st Defendant and was consequently liable to dismissal. However, upon careful consideration of the claimant’s plea for mercy before the 1st Defendant’s panel of investigation into the issue, it was recommended that his service should be terminated, and he should be paid three months’ salary in lieu of notice which the claimant graciously accepted.
It is trite that when an employee complains of unlawful termination of employment, he has the onus to prove that the termination was unlawful by leading evidence as follows:
(1) That he is an employee of the Respondent,
(2) He must place before the Court the terms and conditions of the contract of Employment,
(3) Who can appoint and remove him,
(4) In what circumstances the appointment can be determined by the employer, and
(5) Breach of the terms.
See the case of Okomu Oil Palm Co. Ltd v. Iserhienhrien [2001] 6 N.W.L.R. Pt.710 @ pg. 660
In this suit, it is not in contention that the claimant was in a statutory employment, the Claimant had also placed before this Court Exhibit IU11 (Regulations Governing the Service of Senior Staff of NABTEB). It is trite that a statutory employment can only be determined in accordance with the statute, Rules and Regulations guiding same. Thus, the burden is on the claimant to proof that there was a breach of the terms and conditions of his employment. In furtherance to this the claimant in this case strongly alleged a breach of his fundamental right to fair hearing as guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. Under this he asserted that he was not given a query and investigated by a properly constituted disciplinary committee.
The Rules/ Regulations and relevant Exhibits relied on by the claimant in proof of the alleged breach will now be examined. The claimant relied on the following;
Rule 04302 of the Public Service Rules 2000 which provides;
“As soon as superior officer becomes dissatisfied with the behaviour of any officer subordinate to him, it shall be his duty to inform the officer in writing giving details of unsatisfactory behaviour and to call upon him to submit within a specific time such written representation as he may wish to make to exculpate himself from disciplinary action”
Paragraph 1 of Exhibit IU10(claimant’s letter of termination) which reads:
“The Board, at its Special Meeting held on Wednesday 14th July, 2004, decided, in accordance with paragraph 9 of your letter of appointment, to terminate your appointment for services no longer required, and it is hereby terminated accordingly…”
Paragraph 9 of ExhibitIU1 (letter of appointment) reads:
“Unless you are dismissed, the Board may, at any time for good cause terminate your appointment by three (3) months’ notice in writing or by payment in lieu…”
While Section 7 clause 5 at Pg 41 of ExhibitIU11 (Regulations Governing the Service of Senior Staff of NABTEB) read as follows:
(a) “An employee whose appointment has been confirmed, may have the appointment terminated by NABTEB on grounds of inefficiency after he has been previously warned, for not less than two time in writing by the Registrar or the appropriate authority on his behalf.
(b) A confirmed employee whose appointment has been terminated for inefficiency, shall be given three months’ notice before the effective date of the termination or three months’ pay in lieu of notice, as well any leave due to him. The notice for such termination given on any date of the month and the calendar month shall be calculated from the date.
(c) The appointment of a confirmed employee shall not be terminated until he has been given the opportunity to submit representations to and defend himself before a Disciplinary Committee.”
A thorough look at all the exhibits and submissions of counsel in this suit reveals that the Claimant was not given any query before in the process leading to the termination of his employment. This fact was not controverted in any way by the Defendants and was even reiterated in the testimony of DW2 when he stated under cross examination on the 18th of July, 2018 as follows;
“…The claimant was given something akin to a query because he was asked to write a report”
“… I now say he(claimant) was not given a query as the purpose of the query has already been fulfilled by that report”
DW2 went further to state still under cross examination on the 11th of October, 2018, as follows;
“The claimant was not warned before his termination, because he did not fall within the category of misconduct but gross misconduct”
“The investigation done by us was a general investigation and not targeted at the CW1”
It is evident from the above that the appointment of a confirmed staff can only be terminated based on the provisions of Section 7 clause 5 a, b and c. That he was not warned on any previous alleged offence he committed is not in doubt based on his testimony and that of DW2 quoted above, it was not also stated in Exhibit IU10 that his appointment was terminated for inefficiency, rather the Defendants led evidence that the claimant was actually guilty of gross misconduct punishable with summary dismissal, but they decided to magnanimously reduce the punishment to termination of his service. That the claimant was also a confirmed staff of the 1st Defendant is clear from Exhibit IU2.
The last provision is the one that is relevant to the proper adjudication of this case i.e. that the claimant was a confirmed staff of the 1st Defendant and cannot be lawfully terminated without facing a disciplinary Committee
The pertinent question here is, was the termination of the claimant’s service done in accordance with the Rules and Regulation guiding the employment? If the answer is No, then it is void ab initio. It is clear that no matter the act of perceived magnanimity on the Employer’s part, you cannot build something on nothing. The law is that the contents of a document speaks for itself and the Court will not import any extraneous matter into a document. The letter terminating the service of the claimant i.e. Exhibit IU10 clearly disclosed that his appointment was being terminated for “….. Services no longer required”. The evidence at trial is however at variance with this, and the only reason from Exhibit IU 11 that an employee’s services can be dispensed with for “….. Services no longer required” is redundancy, this is not the case in the instant suit, as there is no evidence that the claimant’s office is no longer existing. The defendants rather adduced evidence of gross misconduct against the Claimant and settled for termination of his employment. In Tsemwan & Ors v. Governor of Plateau State & Anor [2012] LPELR-7922 (CA) the Court of Appeal per Ekpe, J.C.A held that:
“An employer which is clothed with statutory flavour as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect. See the case of Ibama v. SPDC (Nig.) Ltd 2005 17 NWLR Pt.954 at 364. Also the case of UBN Ltd. V. Ogboh [1995] 2 NWLR (Pt.380) 647.”
Furthermore, going by the Public Service Rules, there is no record of any query given to the claimant nor was he tried before a properly constituted disciplinary committee contrary to the tenets of natural justice and Section 36(1) of the CFRN 1990 (as amended). The proper procedure before a statutory flavoured employment is determined is to issue the employee with a query. The inability of the Defendants to adhere to the Rules and Regulations guiding the employment relationship is in contravention of the Regulations/Rules guiding the employment.
Under cross examination of DW2 stated;
– The claimant was given something akin to a query because he was asked to a write a report.
– I now say he was not given a query as the purpose of the query has already been fulfilled by that report
– It is not in Exhibit IU11 that a report can take the place of a query
– The Claimant was not in the panel when all other witnesses gave evidence
– The claimant was not warned before his termination, because he did not fall in the category of misconduct but gross misconduct
In the case of Obianwuna v. NEPA [2016] LPELR-40935 (CA) the Court of Appeal per Yakubu, J.C.A held that
“The law is well settled to the effect that where an employment or contract of service is protected by the statute, the enabling law which created the governmental agency-the employer, the removal, termination, dismissal or retirement of the employee must be predicated upon and in compliance with the statutory provisions, governing the employment or contract of service. Thus, a non-compliance with the enabling statute, in the dismissal, or retirement of an employee, renders such dismissal or retirement, as null and void.”
Also, in Jide Osisanya V. Afribank Nig PLC 2007 1-2 SC 317per Oguntade JSC;
“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings.”
Non- issuance of a query is a denial of an employee’s right to be heard. See Imonikhe v. Unity Bank Plc. [2011] LPELR-1503 (SC), the Court vide Rhodes-Vivour J.S.C explained the doctrine of Audi Alteram Partem thus
“Audi Alteram Partem is a maxim denoting basic fairness. It is a canon of natural justice that has its root in the Old Testament. The Good Lord heard Adam before he passed sentence. It simply means hear the other side. See F.C.S.C v. Laoye [1989] 2 NWLR Pt.106 p, 652; Akande v. state [1988] 3 NWLR Pt. 85 p.851. Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirement of fair hearing or natural justice.”
In Demsa Local Government v. Jokems Nig. Ltd [2012] LPELR-20864 (CA)Denton-West, J.C.A
“….the doctrine of fair hearing is an age long principle embodied in the natural justice principle of “Audi Alterem Partem” which literally means hear the other side. It is aright which gives parties to such equal opportunities of making representations in respect of the matter in contention. It is a constitutionally guaranteed right under section 36 of the 1999 constitution of Nigeria (as amended) and is therefore fundamental and sacrosanct in the determination of the civil right and liberties of parties to a dispute. In the case of Pam v. Mohammed [2008] 16 NWLR (Pt.112) at page 13 & 11, the Supreme Court held inter alia:- “The very sense of fair hearing under section 36 of the 1999 Constitution is a hearing which is fair to both parties to the suit be they Plaintiff or Defendants prosecution Or defence. The section does not contemplate a standard of justice which is based in favour of one party and to the prejudices of the other. Rather it imposes an ambidextrous standard of justice in which the Court must be fair to both parties of the conflict….a party who will be affected by the result of a judicial inquiry must be given an opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal…”
Added to this, the claimant had argued that he was supposed to have been tried by the Post Examination Committee of the 1st Defendant in accordance with Sections 16 and 17 of the NABTEB Act, the Defendants however contended that this committee only had jurisdiction over candidates. The claimant further cited Section 17 of the Act to show that the Committee also covers any person engaged in moderating and revising, vetting, printing and distribution of live Examination papers or in custody of same i.e. applicable to the claimant in this instance. A thorough perusal of the Act reveals that the mandate of this committee actually covers candidates and other persons as argued by learned counsel for the claimant, but the mandate does not extend beyond examination malpractice, and thus is inapplicable to cases that relates to mishandling, mis-sorting in the distribution process of live questions. It is on record that the claimant in the instant case was not accused of examination malpractice, hence I find that the contention of the claimant that the appropriate body to try him on the allegation of mis-sorting of live questions is the Post Examination Committee of the 1st Defendant untenable.
Taking the issue of the composition of the panel set up to investigate the allegation against the claimant by the 1st Defendant further and in relation to the issue of lack of fair hearing and adherence to the rules of natural justice alleged by the claimant, one is bound to take a look at the body itself, the name of the committee as captured on the report Exhibit NB1(i-xxxii) is “THE INVESTIGATIVE PANEL ON AN ALLEGED MISSING/MISPLACED SECURITY PARCEL AT THE DISTRIBUTION POINT OF PRODUCTION”. The panel’s terms of reference are as contained clearly in Exhibit NB1i-xxxvii.
A disciplinary Committee is defined in Exhibit IU11 as follows:
“…a committee instituted for the purpose of hearing the representation of an offending employee and ascertaining the disciplinary measure for an offence”
It is on record that, DW2 testified under cross examination thus;
-The Claimant was not in the panel when all other witnesses gave evidence
– The investigation done by us was a general investigation and not targeted at CW1
The position of the law was clearly stated in PROF DUPE OLATUNBOSUN V. NISER SC 1988 3 NWLR Pt 80 25, thus;
“one of the essential elements of fair hearing is that the body investigating the charge (in the case of misconduct) must not receive evidence or representation behind the back of the person being investigated. This was our decision in Garba V. University of Maiduguri 1986 1 NWLR 550 @ Pg 618. In that case the Court also added that the Court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient that it might, the risk of it is enough”
Furthermore, a study of the terms of reference of the investigative panel reveals that it was both an investigative and accusatory body as it was to investigate and recommend sanctions, this is clearly contrary to the tenets of natural justice and principles of fair hearing as encapsulated in Section 36 of the CFRN 1990 (as amended),
It is based on the above reasoning that I find that apart from the fact that the Defendants have in no way justified the reasons stated in the letter of termination i.e. Exhibit IU10, they have not also satisfied the statutory procedure/ Regulations in the termination of the services of the claimant from their employment.
This issue cannot be resolved completely without treating the issues of Law raised by the defendants in their statement of defence to wit;
(a) That this suit is statute barred; the suit was not instituted within 3 months after the cause of action arose contrary to the provisions of the Public Officers Protection Act.
(b) The 2nd Defendant is (non-juristic person) not a Legal Person and can neither sue nor be sued.
AND/OR in the alternative,
(c) The 2nd Defendant is the Agent of a known principal and can therefore not be sued in an action for alleged breach of contract.
It is worthy of note that these issues were subject of an Appeal which was dismissed by the Court of Appeal, Benin Division on the 2nd day of April, 2014 via Appeal No.CA/B/132/2012. The Judgment is part of the record of this Court, asides, I am bound to take judicial notice of it. The claimants’ counsel referred to this in his written address, and this was not in any way controverted by the Defendants. I must state quickly here that this Court lacks the competence to sit on any issue decided by a superior Court i.e. the Court of Appeal in this instance. The issue of whether the Public Officers Protection Act is a bar to the immediate suit was subject of an Appeal and decided by the Court of Appeal, on the premise that the learned trial Judge at the Federal High Court, Benin Division who initially heard this suit ought to have listened to the evidence and conducted the trial to ascertain whether the instant case is not covered by the exceptions to the Act, in view of the “….semblance of abuse of office” averred to by the claimant. In summary the Learned Justices of the Court of Appeal reiterated the position that any act, negligence of a public officer affecting the rights of a party must be instituted by the aggrieved party within three months next after the act, failure of which it will become statute barred. The Learned justices also reiterated that if a public officer acts outside the colour of his office or the act was done in abuse of his office, he will be exempted from the protection offered by the Act. Section 2(a) of the Public Officers (Protection) Act, CAP P41, LFN, provides as follows:-
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, …..
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof…”
In Hassan & Ors v. Borno State Govt & Ors [2016] LPELR-40250 (CA) the Court of Appeal per Abba Aji, J.C.A held
“……two most important exceptions are prescribed by the Act. Firstly, in cases of continuance of damage or injury, the Act permits action to be brought on the cessation thereof outside the three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty….”
This Court have conducted the trial in this case and digested the evidence adduced, I find the entire process leading to the termination of the employment of the claimant qualifies as an exception to the public Officers Protection Act as the Defendants acted completely outside the colour of their office and statutory provisions guiding the employment of the claimant in their flagrant disobedience to the rules of natural justice and fair hearing as enshrined in the Constitution. They cannot therefore hide under the canopy of the Act to invoke the limitation period against the suit of the claimant in this instance. The other issues subject of the Appeal were resolved in favour of the claimant, I will therefore not go into these as they have been definitively resolved by the Court of Appeal.
Finally on this issue, it is pertinent to resolve whether or not the payment or receipt of three months’ salary in lieu of notice by the claimant will amount to the acceptance of the termination of the contract of employment and thus determine the employment.
The defendants’ counsel had argued that by his acceptance, the Claimant agreed with the findings of the Panel and consequently ended his relationship with NABTEB (1st Defendant). The claimant on the other hand argued that he did not receive any payment for three months’ salary in lieu of notice, and that what he received was financial assistance in respect of an application he made to take care of his sick wife.
In the case of Mohammed M. Alhassan v. Ahmadu Bello University, Zaria & Ors [2009] LPELR-8138 (CA) the Court of Appeal per Orji-Abadua, J.C.A held thus:
“it was stated in many cases relating to Common Law master and servant relationship that where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract of employment was not validly and properly determined because in such a case, his conduct could render the determination mutual………However, in the Supreme Court case of Military Administrator of Benue State vs. C.P. Ulegbe (2001) 11 NWLR Part 141 p.194 cited by the Appellant’s Counsel, it was clearly, without any equivocation, entrenched that where an act is void ab-initio, it cannot be validated by subsequent acts even if valid, because, one cannot add something on nothing. It was stated that the retirement remains void, notwithstanding the acceptance of three months’ salary in lieu of notice. Karibi-Whyte, J.S.C, stated thus: “I am satisfied therefore that the acceptance by the respondents of the three months’ salary in lieu of notice of retirement did not amount to acceptance of invalid and void retirement”……….The principle is now well settled that where an act is void ab initio, it cannot be validated by subsequent acts even if valid. This is because you cannot add something on nothing. See U.A.C. Ltd v. Macfoy [1961] 3 ALL ER 1160…..It is clear as crystal in the light of the afore-stated Supreme Court cases, that where an employment has statutory flavor, the mere acceptance of salary in lieu of notice by the employee cannot validate the invalid and void act of termination of his employment done contrary to the stipulations of the Laws and Regulations governing such appointment….”
Premised on the above stated case, I find that the acceptance of the three months’ salary in lieu of notice by the claimant in this suit cannot vitiate the unlawful termination of his employment.
Consequent upon all the above stated, I find that the termination of Claimant’s employment by the defendants is unlawful, and hereby declared as illegal, null and void ab initio. I so hold.
The 2nd issue for determination is whether or not the Claimant is entitled to the reliefs sought. The reliefs will here be considered one after the other and as itemised in the extant Statement of Facts.
In claim (a) the claimant sought a declaration that the termination of his employment was unlawful, wrongful and against Regulations governing the service of his appointment. I have held earlier in this judgment that the termination is unlawful, this relief therefore succeeds. The termination of the claimant’s appointment is hereby declared unlawful. I so hold.
In claim (b) the Claimant is seeking an Order for reinstatement of his appointment.
It is the law that in a statutory employment the procedure guiding the determination of a statutory employment must be strictly adhered to, otherwise it will amount to a nullity, and the employee will be restored back to status quo i.e. reinstated and damages by way of all salaries and entitlement that accrued during the period of the unlawful act will be awarded. See the cases of Bassey v. A.G. AkwaIbom State & Ors [2016] LPELR-41244CA; Odiase v. Auchi Polytechnic [1998] 4 NWLR (Pt 546) 477 CA; Baba v. NCATC [1986] 5 NWLR (Pt.42) 514 CA.
In Odeyemi v. Nigerian Telecommunications Plc [2009] LPELR-4982 (CA) the Court of Appeal per Nwodo, J.C.A held thus:
“I just wish to add that the law is well settled that where an employee’s service is protected by statute and his employment is wrongfully terminated he would be entitled to reinstatement in his office and in addition damages representing his salaries during the period of his purported dismissal. See C.B.N. v. Igwillo [2007] 4-5SC 154. Public servants in the established and pensionable cadre of the Federal Government Service do not hold their offices at the pleasure of the Federal Government, because their appointments are based upon rules and regulations, statute or memoranda of appointment. The Federal Institution or Corporation must carry out its activities in line with its governing laws and regulation. Consequently, all the provisions regulating discipline of its workers must be strictly complied with as the employment is with statutory flavour.”
It is to be noted that the Claimant admitted that he is now a lecturer at the University of Benin, under cross-examination he stated this;
– I am a lecturer in Uniben
It is the position of the law that the claimant is allowed to mitigate his loss, having been out of job since 2004, he is not expected to sit down at home with nothing doing. This evidence elicited under cross examination was however neither pleaded nor addressed in the final written addresses of either party. It is trite that the Court is expected to restrict itself to issues raised by the parties before it, the issue having not been joined or argued before me is hereby discountenanced.
Reinstatement involves putting the specified person back in law and in fact, in the same position as he occupied before the employer terminated his employment. See Governor of Kwara State v. Ojibara [2006] 18 NWLR (Pt.1012) 645.
It is based on the reasoning and holding above that I find that the Claimant is entitled to be reinstated to his employment with the defendants. I so hold.
It is worthy of note that the claimant in his statement of Facts dated 9th March, 2017 pleaded as follows:
“46. The claimant avers also that apart from salary in lieu of notice which he was given, the Defendants also denied him his staff pensions scheme which he is entitled….”
In his further statement on oath dated 14th December, 2017 he testified as follows:
“9. That I never at any time applied for nor received money in lieu of notice of termination of my appointment. That I only remember asking or financial assistance to treat my wife ill-health condition as evidence in my letter dated 12th August 2004.”
The claimant tendered Exhibits IU 37(i-xxxvii) in proof of his application for financial assistance, and learned counsel for the claimant argued in his final address that the contradiction was due to a printer’s error. It is not within the purview of this Court to pick and choose which of the two to believe, given that the position of the law is that parties are bound by their pleadings and they cannot lead evidence to contradict their pleadings. In Eng. Huat Industries Ltd v. Nkemdilim [2013] LPELR-21395 (CA) the Court of Appeal per Tur, J.C.A held thus;
“Parties are bound by their pleadings. They cannot lead oral evidence to contradict their pleadings.” See also Usiobaifo & Anor v. Usiobaifo & Anor [2005] 3NWLR (Pt.913) 665
Consequently, I hold that the evidence lacks probative value and is hereby discountenanced. I so hold.
Relief C is for payment of Claimant’s salary from 15th July, 2004 to date. Salaries are the additional damages to be paid to the claimant when it is found that his employment has been unlawfully terminated. See Odeyemi v. Nigerian Telecommunications Plc supra. I find that the claimant is therefore entitled to be paid his salaries from 15th July, 2004, the date of his unlawful termination till date less the three months’ salary in lieu of notice which the claimant already collected. I so hold.
It is the contention of the claimant that he is entitled to pension and gratuity. The defendants on the other hand contended that the claimant is not entitled to either of the two i.e. pension and gratuity because of the circumstances under which his employment was terminated.
Pension is an accrued right of an employee, upon retiring from the services of his employer and satisfying the conditions precedent to same, it is a right which cannot be unilaterally taken away by an employer. See the case of Momodu v. N.U.L.G.E [1994] 8 NWLR (PT.362) 336 CA.
Entitlement to pension and gratuity is a vested right, which can only be taken away by the dismissal of the employee from his employment. Once the dismissal is declared unlawful and the employee is reinstated. However, the issue of pension is premature as reinstatement and pension cannot be granted at the same time in this instant.
In other words, whether an employee is eligible for pension and gratuity can be decided only in reference to the conditions of service. See the case of N.E.P.A v. Adeyemi [2007] 3 NWLR (Pt.1021) 315. Finally, in a pensionable employment the employee’s right to pension ripens in the year of his retirement. Until then that right is only contingent upon attaining his age of retirement or voluntary retirement. See the case of R.S.C.E v. Omubo [1992] 8 NWLR (pt.260) 456.
I have held that the claimants’ employment was unlawfully terminated and he is to be reinstated, the relief for pension therefore goes to no issue. I so find and hold.
Relief D is for general damages of N2 Million against the Defendants jointly and severally.
It is the position of the law that the only measure of damages available to an employee in employment cases is the accrued rights and salaries under the contract of employment. See Odeyemi v. Nigerian Telecommunications Plc supra. Having awarded the claimant his arrears of salaries, I find that he is not entitled to any damages as this will amount to double compensation which is not permissible in Employment Law. The relief therefore fails. I so hold.
Claim (e) is for an Order that the 1st Defendant publish a retraction and an apology to him in both local and national newspapers. This is a claim peculiar to libel which is outside the jurisdiction of this Court, as encapsulated by Section 254C (1) of the 1999 Constitution as amended. This claim therefore fails for want of jurisdiction. I so hold.
It is in the light of all the above that I hold that the Claimant’s claims succeed in part and for the avoidance of doubt, I declare and order as follows:
- The termination of the claimant from the employment of the defendants is unlawful, null and void ab-initio
- The claimant be reinstated to his appointment with the defendants.
- The claimant be paid all the arrears of his salaries from 15th July, 2004 till date less the three months’ salary in lieu which he already collected.
- The claim for damages fails.
- All monetary sum awarded in this Judgment shall attract an interest of 20% per annum on the total judgment sum until same is finally liquidated.
A cost of N200,000.00k is hereby awarded against the Defendants.
Judgment is accordingly entered.
Hon. Justice A.A. Adewemimo
Judge
