IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 11TH OCTOBER, 2018 SUIT NO. NICN/BEN/31/2013
BETWEEN
MR KEHINDE DOKUN SAMUEL …………………… CLAIMANT
AND
UNIVERSITY OF BENIN …………………………..DEFENDANT
REPRESENTATION
C.N Dike with him are L.N Esezobor, G. Okogele for the claimant
B.O Ojumah for the defendant
JUDGMENT
By an amended General Form of Complaint, the claimant approached this Court on the 10th April, 2017, claiming against the defendant via the following reliefs:
1. A Declaration that the defendant’s dismissal of the claimant from its employment is unlawful, illegal, null and void and of no effect whatsoever same having been done contrary to the Rules of Natural Justice and the Laws and Regulations regarding the nature, tenure and discipline of Senior Staff of the University of Benin.
2. A Declaration that the employment of the claimant with the defendant is still subsisting notwithstanding the said purported dismissal.
3. An Order on the defendant to reinstate the claimant to its services and to pay to the claimant his full salaries, entitlements, allowances and/or benefits from the date of dismissal up to the date of judgment and/or reinstatement.
4. An Order on the defendant to reinstate the claimant to the post of a Director.
5. The sum of N52, 524,173.70 (Fifty Two Million, Five Hundred and Twenty Four Thousand, One Hundred and Seven Three Naira and Seventy Kobo) as Exemplary damages for the oppressive dismissal of the claimant which occasioned the claimant and his family hardship and emotional torture.
6. ALTERNATIVELY, the claimant claims from the defendant the sum of N92,256,393.05 being special damages for unlawful dismissal from the service of the defendant.
It is the case of the claimant that he is an employee of the defendant and at all time material to this suit, a Deputy Director in the Central Records Processing Unit in the office of the Vice Chancellor. He averred that he was offered temporary appointment as a Chief System Analyst in the Unit vide a letter dated 14th January, 2003 on HATISS 13 step 1 and was promoted to HATISS 13 step 7 backdated vide a letter dated 19th of June, 2006. That by a letter dated 13th September, 2011, he was substantively appointed following an interview on the 24th of June, 2011 as Deputy Director CONTISS 14 step 4 effective from 11th of August, 2011 and that as part of the terms and conditions of his appointment, he was entitled to rent subsidy and Hazard allowance which were usually increased every year and lately increased by the Federal Government to a flat rate of N360,000.00 per annum effective from July, 2009. He stated that in January, 2013 the Vice Chancellor verbally directed him to assist one Prof. (Mrs) Elizabeth Egbochukwu and Mr. Omagbon E.S. to win the Congregation Election into the University Governing Council which was to be held on 28th February 2013 by furnishing them with telephone numbers of staff which had been obtained during the staff biometric exercise and that the Vice Chancellor of the defendant had earlier on the same day directed him to hand over both the hard and soft copies of the Biometric details to his Personal Assistant (Mr. Dennis Aigbe). He pleaded that he was surprised to be issued with a query by the Registrar on the 28th of February, 2013 that he had exclusive access to the biometric data and for giving official information to unauthorized persons to send inciting messages. That he promptly responded to the query and was invited by the Security Department of the University on same issue. He was subsequently invited and appeared before the Senior Staff Disciplinary Committee (SSDC) on the 26th and 27th June, 2013. He averred that he was exonerated after the SSDC heard from him and witnesses and recommended to the council to warn him but that he was dismissed vide a letter dated 16th July, 2013 and subsequently issued with another dismissal letter dated 18th of July, 2013 to supersede the earlier letter. He stated that the allegation of serious misconduct leveled against him was not proved and that the provisions of Chapter XII clauses 4 and 5 of the Regulations Governing the services of Senior Staff University of Benin was observed in the breach in council’s decision to dismiss him from service and that he suffered untold hardship, deprivation and emotional depression on account of his unlawful dismissal.
In its amended statement of defence filed on the 15th July, 2015, the defendant averred that in 2011, the Federal Government released a white paper on a visitation panel to the University in 2009 highlighting some areas that the University management needed to improve upon. In pursuance of this, the Vice Chancellor constituted an Ad-Hoc Forensic Audit Committee to look into the Financial management in the Bursary Department and Audit Unit and that in the discharged of this assignment, the claimant was co-opted into the Ad-Hoc Committee due to his expertise in ICT to assist in capturing Biometric Data including the telephone numbers of all the staff in pursuance of the exercise, which he did well. It averred that the claimant without lawful authority released/disclosed the staff telephone numbers to various individuals within and outside the University who used same to send inciting text messages under the cover of congregation campaign/election to the entire University Community during the 2013 congregation election that took place in February, 2013. That the claimant was issued a query, which he replied to and that the matter was referred to the Security Department for thorough investigation when it was difficult from his answer to conclude whether it was the claimant or anyone else who disclosed such information as he (claimant) mentioned some individuals whom he alleged had access to the Biometric Data. That he and others mentioned (Prof. E.O. Egbochukwu, Barrister F.O. Osadolor, Prof. F. Izedonmi, Dr. C.J. Mecgbamie, Barrister Nosa Iyekekpolor and Mr. Dennis Aigbe) were invited by the Security Department for interrogation where they made written and oral statements. The matter was further referred to the SSDC who made further inquiry and reported to the Council. That the Council after the consideration of the report vis-a-vis the security report found the claimant wanting and consequently dismissed him.
Defendant denied that the Vice Chancellor did request the claimant to hand over both the hard and soft copies of the Biometric details to him and or asked him to release the telephone numbers of staff to Mr. Omagbon and Prof. (Mrs) Egbochukwu as alleged by the claimant. It is also contended that the Council is not bound by the recommendation made by the SSDC. Whereof the defendant urged the Court to dismiss this action with cost.
During trial, the Claimant testified for himself as CW1, he adopted his sworn depositions on oath as his evidence in the case, he also tendered some documents which were admitted in evidence and marked ExhibitsDS-DS9. The Defendant also testified through One Nosa Iyekekpolor, as DW1, he adopted his sworn deposition on oath as his evidence in the case and tendered some documents which were admitted by the Court as ExhibitsNI (1) – NI(3).
Parties caused their written address to be filed in compliance with the rules of this Court; the Defendant filed its final written address on the 16th May, 2018 and framed two issues for the determination of the Court viz:
1. Whether the dismissal of the claimant by the defendant was justified having regard to the evidence before the court.
2. Whether the dismissal of the claimant by the defendant was done contrary to the Rules of Natural Justice.
In arguing issue one, the defendant submitted that the query it issued to the claimant dated 28th February, 2013 disclosed the reason for the termination of his employment which the claimant denied in his response. He submitted that the claimant failed to call the said Prof. (Mrs) Egbochukwu(the person whom the claimant averred that the Vice Chancellor purportedly directed him to assist) as a witness to testify to the facts asserted by him. He posited that it is settled law that he who assert must prove. Counsel continued that the claimantonly tendered the statement made by the said Prof. to the security department through the defence witness and which was admitted as Exhibit N13. He stated that a careful perusal of the statement clearly shows that the said Mrs Egbochukwu denied his claim. Defendant went on to contend that assuming without conceding that the Vice Chancellor authorized the claimant to relocate the said telephone numbers to Prof. (Mrs) Egbochukwu, that a careful look at the email which the claimant tendered in evidence, clearly shows that it was also sent to some other persons, one of such persons was the owner of the email address: omoigbe@yahoo.com and that this shows that the claimant went beyond the authority of the Vice Chancellor. Counsel urged the Court to hold that the dismissal of the claimant by the defendant is justified.
On issue two, it is the submission of the defendant that the provisions of Section 17 of the University of Benin (Transitional Provisions) Act, Laws of the Federation of Nigeria, 2004 is the relevant law that regulates the disciplining of Senior Staff of the University and that the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, is the codified version of the Rules of Natural Justice. Counsel submitted that by the provision of Section 17 of the University of Benin Act, it is the Council that has the authority to remove a senior member of the academic of the University such as the claimant from his employment provided notice of the reason for his removal is given to him and he is afforded an opportunity of making representations in person on the matter to the Council. Section 10(1) and (2) of the Interpretation Act, Cap 123, Laws of the Federation of Nigeria and the cases of Balonwu v. Gov. Anambra State [2008] 16 NWLR (Pt. 1113) 236 at 259, paras E-F were relied upon. Counsel argued that the Council exercised its authority to hear disciplinary matters with respect to senior academic staff, through the Registrar and the SSDC and that the claimant was afforded an opportunity to make representations before the SSDC. The defendant posited further that the claimant did not give evidence before this Court or supply the particulars of the aspect of the Rules of Natural Justice the defendant breached or did not comply with as what constitutes fair hearing or breach of the Rules of Natural Justice depends on the circumstances of each case. It placed reliance on the case of NEPA v. Arobieke [2006] 7 NWLR (Pt. 979) 245 at 249 Ratio 1. Furthermore, it is argued that there was substantial compliance with the Rule of Natural Justice at every stage of the procedure that led to the claimant’s dismissal before he was finally dismissed and that the fact that he was not given opportunity to appear before the Council who appointed the SSDC who later considered the report of the committee and dismissed him is not an infraction of the Rules of Natural Justice. That the only aspect of Section 17 of the Act that was not complied with was subsection 17(1)(C) and that from the facts before the Court, the claimant did not request for a joint Committee of the Council and the Senate to investigate the matter and report on it to the Council and as such, he cannot now complain that the provision of the Section of the Act were not complied with. The Court is urged to uphold this issue in favour of the defendant and to finally dismiss this suit for lacking in merit with substantial cost in favour of the defendant.
The claimant also filed his final written address wherein he formulated two issues for the determination of this suit, viz:
1. Whether in the light of the evidence before the Court, the purported dismissal of the claimant from his employment by the defendant base, as it were, on an alleged “disclosure of official information” was lawful and valid.
2. Whether the defendant followed due process and observed the principle of fair hearing during the process of investigating and determination of the allegation of disclosure of official information levied against the claimant before dismissing him from his employment.
In his argument on issue 1, the claimant submitted that from the evidence adduce on both sides, it is admitted that his employment is governed by statute and is therefore tainted with statutory flavour and that it is trite law, flowing from numerous decided cases, that an employee whose employment is protected by statute can only be removed/dismissed in accordance and in line with the procedure as lay down or stipulated by the statute or regulation made there under and that this is the legal position and is aptly captured in the case of Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599. He submitted that claimant’s employment is governed by the University of Benin (Transitional Provisions) Act and the Regulation made there under and as such, his employment remains valid and subsisting until he is lawfully and legally removed in accordance with the provisions of the statute and regulation governing his employment. He relied on the cases of Raji v. Unilorin [2007] 15 NWLR (Pt. 1057) pg 259 ratio 1; Fakuade v. O.A.U.T.H. [1993] 5 NWLR (Pt. 291) 47; Ideh v. University of Ilorin [1994] 3 NWLR (Pt. 330) 81; Shitta-Bay v. Public Service Commission [1981] 1 SC 40; Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303 and Udo v. Cross River State Newspaper Corporation [2001] 14 NWLR (Pt. 732) 116.
The claimant, in furtherance of his argument, contended that the implication of the definition of official information as rendered by Section 2 of the Official Information Act, is that any information not held by (not in custody of) the defendant is not and do not qualify as an official information of the defendant. It is submitted that from the body of Exhibit DS3, which is the document the defendant relied upon to justify its claim/allegation of disclosing official information, it is clear that the telephone numbers that the claimant released to Prof. Egbochukwu is the telephone numbers of members of the University of Benin Alumni Association and as such cannot be said to be an official information of the University of Benin because the said list was neither ordered to be compiled by the University nor is it held by and in its use. He stated that this submission is supported by the evidence of DW1 under cross-examination, and also explains why Prof. Egbochukwu denied that the list of the telephone numbers of the staff of the University was released to her. Counsel further submitted that the people whose names were listed in paragraph 12 of the amended statement of defence, which the defendant alleged that he also disclosed the list of telephone numbers to, all denied that such numbers were released to them and that this denial was further confirmed by the DW1 under cross-examination. He therefore submitted that his dismissal on the ground that he disclosed official information of the University is unlawful, illegal, wrongful, null and void and of no effect and that on this score, he is entitled to be reinstated having shown that he was wrongfully dismissed based on an allegation that is untrue, unfounded and baseless. He referred to the cases of B.S.J.S.C v. Danjuma [2017] 7 NWLR (Pt. 1565) at pg 432 ratios 2 & 3 at pages 435 and 436 pp 455 – 459 and B.E.D.C Plc v. Esealuka [2015] 2 NWLR (Pt. 1444) pg 411 ratio 3 at page 417 pp at pg 433 – 437 paras F-A; 438, paras C-E; 438-439, paras H-A.
As regards issue 2, the claimant submitted that the defendant did not follow due process and observe the principle of fair hearing flowing from the fact that he was given a query on 28th February, 2013, invited by the Security Department on 21st March, 2013, invited by the SSDC on 18th June, 2013, the Senior Staff Disciplinary Committee (SSDC) invited the claimant to appear before the committee. That he appeared on the 26th and 27th of June, 2013 and the SSDC after its deliberation exonerated the claimant and sent their report to the Council. The council on the 16th of July, 2013 issued the claimant a letter of dismissal. He posited that on the 18th of July, 2013 claimant received another letter purporting to dismiss him with effect from 12th of July, 2013. Counsel argued that the provisions of Section 36 of the 1999 Constitution as amended, Section 17 (1) (a)(b) of the University of Benin (Transitional Provision) Act and Section 5(a)(b)of Chapter 12 of the Regulation Governing Senior Staff of the University of Benin was not complied with and also that he was not afforded the opportunity of making representation in person on the finding and recommendation of the SSDC in relation to the allegation of misconduct levied against him. Counsel submitted that the Council upon the receipt of the SSDC recommendation should have heard from the claimant personally before dismissing him, that its failure to so before dismissing the claimant is ultra vires its power. It is counsel’s submission that the defendant having wrongfully dismissed the claimant, he is entitled to be reinstated and also entitled to damages representing his salaries and allowances during the period of his purported dismissal. He urged the Court to so hold.
The defendant in response to the claimant’s written submission filed on the 5th of July, 2018 its reply on point law stating that by virtue of paragraphs 18, 19,20 and 21 of claimant’s statement of facts he averred that what he sent to the duo of Prof Mrs Egbochukwu and Mr. Omagbon through email on the instruction of the Vice Chancellor was the details of the telephone numbers of the Staff of the University and not telephone number of the members of the 1st defendant’s Alumni Association and in support of his averment, he tendered an email. Counsel submitted that it is the law that parties are bound by their pleadings and where a party has tendered a document in the Court of law and it is admitted, he is bound by it and cannot disassociate himself from it. He cited the case of Emenike v PDP [2012] 8 NWLR (Pt. 12940 555 at 562 R 10. Continuing counsel submitted that assuming but not conceding that the pleadings of claimant is true with regards that he was ordered by the Vice Chancellor to disclose the information to persons he named, the email clearly showed that he went beyond the instructions given to him by disclosing same to unauthorized persons.Counsel urged the Court to hold the claimant by his pleadings.
I have carefully perused all the processes before this court and considered the oral evidence of witnesses, likewise the written addresses and authorities cited in support of the arguments of parties before this Court. It is in this light that I frame these issues for the determination of this suit:
1. Whether or not the dismissal of the Claimant’s appointment was unlawful?
2. Whether or not the Claimant has proven his case to be entitled to all his reliefs sought?
It is claimant’s contention that his dismissal from the defendant’s employment is unlawful, illegal, null and void and of no effect whatsoever as same was done contrary to the Rules of National Justice and the Laws and Regulations regarding the nature, tenure and discipline of Senior Staff of the University of Benin as he was not afforded the opportunity of making representation in person on the finding and recommendation of the SSDC in relation to the allegation of misconduct levied against him. The defendants on the other hand posited that there was substantial compliance with the Rule of Natural Justice at every stage of the procedure that led to the claimant’s dismissal before he was finally dismissed. It is not in contention that claimant’s employment is protected by Statute, as both parties are ad idem on this. It is the law that an employment is said to have statutory flavour when the appointment is protected by an Act, law or laid down regulations made to govern the procedure for employment and discipline of an employee. To determine whether or not an employment is with statutory flavour, the Courts have held in plethora of cases that any employment in the Public or Civil Service of the Federation, States or Local Governments or agencies of government including institutions and parastatals wherein the Civil Service or Public Service Rules apply or are made relevant or incorporated. Any other employment outside that category is governed by the terms under which the parties agreed to be bound. See the case of Audu v Petroleum Equalisation Fund (Management) Board &Anor [2010] LPELR 3824 CA. An in-depth examination of the records before the Court reveals vides Exhibit DS (B) dated 13th September, 2011 particularly at paragraph 3 that;
“All other conditions of service remain the same except otherwise affected by the Regulations Governing the service of Senior Staff in the University of Benin and any amendment made thereto and approve by the Governing Council of the University as well as by Reports of the Public Service Review Commission and Public service Review panel approved by the Federal Government and any other Federal Government Regulations Governing the condition of service that may be enforce”
In the case of University of Ilorin v Abe [2003] FWLR (Pt 164) 267 at 278, the Court of Appeal per Amaizu JCA held that;
“it is now firmly established by a long line of decided cases by the Apex Court that when an Office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by a statute or regulation made thereunder, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship, in order to discipline such a person, the procedure laid down in the relevant, statute or regulation must be complied with strictly.”
See also the case of Oak Pensions Ltd v Michael Olayinka [2017] LPELR 43207 CA. It is apparent from the above reasoning which is resolutely rooted in law that the employment of claimant is statutorily governed. A pertinent question to ask is what is mode of termination in an employment protected by Statute. The law is certain that for an effective determination of an employment statutorily flavored; it must accord strictly or differently put be in consensus with the law establishing or providing the terms and conditions to which an employee/employer is bound and a breach thereof is considered ultravires the power of the employer and hence void and of no effect. This is predicated upon the principles of Natural justice and symbolizes by the audi alterem partem and nemo judex in causa sua rule. This presupposes that before an employer can validly determine the employment of its employee it must exhaustively placate or satisfy its requirements by following the procedure duly required in the law regulating the employment of the employee. See the case of Adeniyi v Yaba College of Technology [1993] 7SCNJ (Pt II) 304. Inversely, where a party has been given the necessary opportunity to present his case within the precincts or confines of the law he would be said to have been afforded fair hearing. See the case of Audu v FRN [2013] LPELR 19897. Parties are in ad idem that the procedure for dismissal of the claimant in this case is regulated by the University of Benin Act (Transitional Provisions) Act Cap U4 LFN 2007 hereinafter called the Act; Regulation Governing the Service of Senior Staff University of Benin hereinafter called the Regulation. However it is germane to state that the Regulation of the defendant was not pleaded and placed before the Court by parties in this Suit. The law is trite that the Court will not go fishing for evidence to support parties’ case as the law precludes the Court to embark on a voyage of discovery. However and to ensure that substantial justice is met, I will take judicial cognizance of the Act which is an enactment of the National Assembly and enshrined in the Laws of the Federation of Nigeria to determine this suit appropriately. I so find and hold.
It is trite that where an employee is alleged of misconduct, the employer must inform him of the grounds therein via a written notice or query to afford him a chance/opportunity of defence, he must be invited to make representation and offer an opportunity to cross-examine his challengers, be allowed to call witnesses if any and the documents to be used against him must be shown to him before he is to appear before the Committee to aid him adequately understand what he would face at the disciplinary committee. See the cases of Kwara State v Ojulari [2007] 1 NWLR (Pt 1016) 551CA; Audu v Petroleum Equalisation Fund (Management) Board &Anor (supra).
An excursion into the The University of Benin (Transitional Provisions) Act, Section 17 provides for the Removal of Academic and Administrative officers and other staff:
(1) If it appears to the Council that there are reasons for believing that the Deputy Vice-Chancellor or any other person employed as a senior member, administrative, technical or professional staff of the University should be removed from his office or employment on the ground of misconduct or of inability to perform the function of his office or employment the council shall-
a. Give notice of those reasons to the person in question;
b. Afford him an opportunity of making representation in person on the matter to the council
c. If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangement
i. For a joint committee of the Council and the Senate to investigate the matter and to report in it on the Council; and
ii. For the person in question to be afforded an opportunity of appearing before, and being heard by, the committee with respect to the matter,
And if the Council, after considering any representation and report made in pursuance of this subsection, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the direction of the Council.
From the above statutory provisions, the first step to take by the defendant before dismissing the claimant on the ground of misconduct, is to issue a query to him and also afford him an opportunity of making representation in person on the matter to the Council and if he or three (3) members of the Council so request within the period of one month make arrangement for a joint committee of the Council and Senate to investigate the matter and report to the Council and if the Council after considering any representation is satisfied that he should be removed, it may do so by an instrument in writing signed on the direction of the Council. In the instant case, the claimant on the 28th of February, 2013 by Exhibit DS4 was issued a query on the grounds that he knowingly disclosed staff telephone numbers to some persons who subsequently used same to send inciteful messages the under cover of congregation campaign and which he responded to on the 1st of March, 2013. He was invited to meet with the Security Department of the defendant on the 21st of March, 2013, Exhibit DS5. On the 18th of June, 2013 by Exhibit DS6, he was invited to appear before the Senior Staff Disciplinary committee on the 26th of June, 2013 and on the 15th of July, 2013 Exhibit DS7, the council recommended that he should be dismissed, he was issued a letter of dismissal on the 16th of July, 2012 with effect from 12th of July and also on the 18th of July 2013 he was also issued another letter of dismissal with effect from 12th of July, 2013 and which according to the defendant supersedes the previous letter dated 16th of July. Now can it be said that there has be compliance with Natural justice; fair hearing? I answer in the Negative for the reason that the Act governing the employment relationship of the parties vide its Section 17 (1) (c) states thus-
c. If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangement
i. For a joint committee of the Council and the Senate to investigate the matter and to report in it on the Council; and
ii. For the person in question to be afforded an opportunity of appearing before, and being heard by, the committee with respect to the matter,
And if the Council, after considering any representations and report made in pursuance of this subsection, is satisfied that the person in question should be removed as aforesaid, the council may so remove by an instrument in writing signed on the direction of the Council
Claimant was alleged to have offended chapter XX11, Section 4 (G) at page 143 of the UNIBEN regulations governing the service of Senior Staff of the University of Benin. It is the extant position of the law in labour jurisprudence that where an employer gave reason for determining its relationship with its employee, the employer must adduce evidence to establish the reason to the satisfaction of the Court. I call in aid the Supreme Court decision in the case of Shell Petroleum Co. Ltd v. Chief Victor Sunday Olanrewaju (2008) 18 NWLR (Part 1118) 1 at 19H to 20 A – B, where Tabai, JSC had this to say:-
“the guiding principle which has been articulated and applied in many cases including Olatunbosun Vs N.I.S.R. council (1988) 1 NSCC (1025) 188 3 NWLR (Pt. 80) 25 is that an employer is not bound to give reasons for terminating the appointment of his employee. But where as in the case, he gives a reasons or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court. In the case, the appellant, having given gross misconduct as its reasons for respondent’s dismissal, has the onus to establish that the respondent was indeed guilty of the alleged misconduct that warranted his dismissal…”
The defendant as stated above although did not expressly state the reason for dismissing the claimant in its letter of dismissal, it however, stated in the query it issued to him that the claimant flouted/breached the provision of chapter XXII, Section 4(G) at page 143 of the defendant’s regulation. Meanwhile, the defendant failed or refused to tender the said regulation before the Court. It also has not in the circumstances of this case substantiate the reason for claimant’s dismissal. This is because I do not know how the defendant want this Court to consider its assertion without the regulation under which the claimant was alleged to have misconducted himself, and investigated him before me. The Court cannot on its own conjure the regulation under which the defendant queried, investigated and dismissed the claimant. I find the defendant’s failure to place before me the regulation vide which they allegedly dismissed the claimant for misconduct fatal to its position.
Learned counsel to the Defendant in his written argument admitted that the only aspect of Section 17 of the Act that was not complied with was subsection (1)(C) of Section 17 and that from the facts before the Court, the claimant did not request for a joint Committee of the Council and the Senate to investigate the matter and report on it to the Council and as such, he cannot now complain that he was not given opportunity to appear before the Council and that such is not an infraction of the Rules of Natural Justice as the provision of the Section of the Act was complied with. In disagreeing with the submission of the learned defence counsel, I say unequivocally that to find as the defence would want the Court to find that by the provision of Section 17 of the Act, the claimant ought to have requested the defendant’s council to set up or constitute a committee to look into his case is like upturning the unambiguous wordings in Section 17 of the Act. I say so because the burden of proving the alleged misconduct against the claimant lies on the defendant to establish and not the claimant. I therefore find it so awkward for an employee to request his employer to investigate him when the defendant had already investigated him at the SSDC. This cannot be the intention of the drafters of this legislation and I am careful in interpreting this law, not to venture or veer off the plain meaning as Courts are severally mandated to interpret a statute positively and not negatively. Differently put, the provision of statutes should not be construed in a way as would defeat the intention of the legislature or to defeat the end it was meant to serve or where it will cause injustice. See the case of Nyesom v Peterside & 3 ors [2016] 1 NWLR (Pt. 1492) p.71SC. It is the law that where words used in a statute are unequivocal, clear and unambiguous, the literal rule presupposes that such words be given ordinary, plain and simple meaning. See the cases of SPDC v. Royal Nig Ltd [2016] LPELR 40062SC; Gov. Borno State & 2 ors v. Alh. Ngabura Bukar Gadangari [2016] 1 NWLR (Pt. 1493) 396. It is in consequence that I discountenance the submission of learned counsel to the defendant as regards Section 17 of the Act, to agree with his submission will occasion grave and weighty injustice to the parties in this suit. Next, a pertinent question to answer is, is there credible evidence before the Court to corroborate the defendant’s allegation against the claimant on the grounds of misconduct. Now a cursory look at Exhibit DS7 dated 24th -28th of June, 2013 a report of the SSDC state thus;
| Name/
Department
Mr Kehinde Samuel |
Allegation
Disclosed staff telephone numbers to those currently using same to send inciteful messages under cover of congregation campaign/Election |
Findings
1. He did not have exclusive possession of the data. 2. He had a facility for sending bulk SMS but he did not use it against the University 3. He was the overall custodian of the data. 4. There was no clear cut evidence that he released the data to the people. It was the environment that created the controversy. |
Recommendation
1The Committee recommended that he should be warned for allowing room for such suspicious to be brought up. 2 There should be a policy to sanction anyone who releases such sensitive information in future without management authorisation |
Council Decision
Dismissal |
From the above report, it reveals that the claimant was not afforded an opportunity to make representation as there is nowhere in the said report where he made representation in defence of the allegation against him rather the defendant went straight into making a finding against the claimant without first offering him an opportunity to make his defence. The only document which seems to disclose that he was offered an opportunity to make a defence for himself is Exhibit NI1 which is the investigation report from the defendant security department. Can Exhibit NI1 fulfill the intention of Section 17 (1) b of the Act which provides thus;
b. Afford him an opportunity of making representation in person on the matter to the council (underline mine for emphasis)
The answer to this poser is an obvious NO! because the wordings of the statute is clear that the claimant should be afforded an opportunity to make representation in person on the matter to the council and not the defendants security department as seen in this instant case. Now has the provision of Section 17 of the Act been complied with? It is clear from all stated supra in this judgment that the defendant failed to follow the laid down procedure in dismissing the claimant. It is trite as reiterated earlier, that the consequence of a breach of the rules of Natural justice in determining an employee’s employment is that the decision reached is void and of no effect. It is upon the sheer disregard of the provision of the Act that I find that the claimant’s appointment was unlawfully dismissed by the defendant. Accordingly, the dismissal of the claimant by the defendant is null, void and thus set aside.
On issue two, having held that the dismissal of the appointment of the claimant is unlawful, it is his claim that his employment with the defendant is still subsisting, hence should be reinstated to the post of a Director and to pay to the claimant his full salaries, entitlements, allowances and/or benefits from the date of dismissal up to the date of judgment and/or reinstatement. It is the law that where employment is statutory and the procedure for separation was not followed, the right order to make by the Court is to order for the reinstatement of claimant back to his position and an award of damages representing all salaries and entitlement which accrued during the period of the purported unlawful dismissal or termination be paid to the employee. See the cases of National Union of food Beverages and Tobacco Employers v Cocoa Industries Ltd Ikeja [2005] 3 NLLR (Pt. 8) 206; University of Calabar v. Inyang [1993] 5 NWLR. It is in this light that I find that claimant is entitled to be reinstated back to his position before his unlawful dismissal from the service of the defendant without any loss of position, because it is deemed in law that he never left the employment of the defendant. Also claimant is entitled to his salaries and allowances from the 12th of July, 2013 when he was unlawfully dismissed by the defendant till the date of his re-instatement.
The claimant also claims the sum of N52, 524,173.70 (Fifty Two Million, Five Hundred and Twenty Four Thousand, One Hundred and Seven Three Naira and Seventy Kobo) as Exemplary damages for the oppressive dismissal of the claimant which occasioned the claimant and his family hardship and emotional torture.
It is the law that exemplary damages are usually punitive in nature and awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Exemplary damages must be claimed and proved before they can be awarded. See the cases of Talabi v Law Union & Rock Insurance Plc [2016] 64 NLLR (Pt 227) 374; Odogu v A.G Federation [1996] 6 NWLR (Pt456) 508. I have earlier decided supra that the claimant is entitled to be paid his salaries and entitlement and that he is to reinstated back to his position from the time he was unlawfully dismissed till the date of his reinstatement. To award this claim to the claimant will amount to double compensation because an award of damages in unlawful dismissal as in this case is aimed at putting the injured party back to his position before he was dismissed. It is consequent upon this that I find no merit in the claimant’s claim for exemplary damages and thus dismiss same.
In conclusion, it is obvious that the claimant’s claims succeed in the most part and for the avoidance of doubt, I declare and order as follows;
1. That the dismissal of the claimant by the defendant by a letter dated 18th of July, 2013 is unlawful, and hereby declared null and void.
2. That the letter of dismissal dated 18th of July, 2013 is hereby set aside.
3. That the defendant is ordered forthwith to reinstate the claimant back to its employment.
4. That the claimant is to be paid all his salaries and allowances from 18th of July, 2013 till he is reinstated.
5. That the claimant should be reinstated and his salary and allowances paid within 30 days of this judgment failing which it is to attract 10% interest per annum.
Judgment is entered accordingly.
Hon. Justice Oyebiola Oyejoju Oyewumi
Presiding Judge
