IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
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Suit No: NICN/CA/56/2015 Petitioner: MR. MICHAEL BASSEY ASUQUO And Respondent: UNIVERSITY OF CALABAR TEACHING HOSPITAL Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION: F. N. NACHAMADA for the claimant with CHRIS EKONG Esq. CHIEF OROK IRONBAR for the defendant J U D G E M E N T The claimant, by a General Form of Complaint filed on 20th November, 2015 accompanied by his Statement of Facts, Claimant’ Written Statement on Oath, List of Witnesses and List of Documents, approached the Court for the following reliefs: A DECLARATION that the claimant’s employment has statutory flavor. A DECLARATION that the termination of claimant’s employment is unlawful. AN ORDER re-instating the claimant to the post which he ought to have been without of Step. #47,393.13 being claimant’s unpaid salary for the month of June, 2013. #282,174 being the claimant’s promotion arrears. #63,733.35 being the claimant’s under-payment from January to May, 2015. The defendants filed their STATEMENT OF DEFENCE filed on 24th February, 2016. The defendant admit that the claimant was employed as a Security Guard and averred that it does not automatically convert a security guard to an accounts officer and that the conversion was because of the representation made to the defendant by the claimant of his ability to function in the accounts department and his acquired qualification. The Defendant stated that the observation and subsequent Audit Report made by the Audit Department indicting the claimant of Financial Impropriety covered the period between January to March, 2013. And that the misconduct complained of involved the claimant and other staff in his Accounts Department and that the defendant did not and does not owe the claimant a duty to disclose the outcome of the investigation. In response to paragraph 20 of the Statement of Facts, defendant averred that the claimant’s appointment was terminated on 24th April, 2015 and that an offer to pay one month salary in lieu of notice was not made but that actual one month’s payment was effected in line with the agreement as contained in his offer of employment letter. Answering paragraph 27 of the Statement of Facts, defendant averred that claimant is not entitled to the reliefs therein. At the trial the claimant testified as CW, adopted his written statement on oath of 19th November 2015 and proceeded to tender 20 other exhibits. Under cross examination CW, testified that he was employed in 1999 by the defendants that Exhibit C3 was the basis of his employment. He further testified that his salary was 52, 510.50 and that he was not paid his salary for the month of June 2013, and under paid his salary in January and May 2015. When asked if he had anything in court to show that he complained. CW replied, No and that his complaint was verbal. The defendants called one witnesses Ede The defendants called one Ededet Eyoma the Director of Human Resources of the defendant who testified as DW, adopted his written statement on oath which was marked Exhibit D1, and went on to tender twelve other documents Exhibit D2-Exhibit D13. Under cross examination DW testified that there was an instance of financial impropriety in their establishment and that it was unraveled by the Audit department and the claimant was invited to appear before the investigation panels three times. DW identified the three invitation letters, Exhibits C17, Exhibit C13-C13(1) and stated yes to the questions that none of the three invitation letters indicated that the claimant was a suspect, nor did they mention he was indicted, neither did they mention the words ‘allegation against some staff’ neither did they call for written explanations, DW went on to stated that the Audit report was not forwarded to the affected staff a that some staff he further testified that by the contents of these exhibits the claimant would know that the allegation would feature in the chat. DW also testified that the Federal Public Service Rules apply to the claimant. At the close of trial parties were directed to file their final written addresses in line with the rules of this court. DEFENDANT’S FINAL WRITTEN ADDRESS filed on 1st November, 2016 and dated 31st October, 2016. ISSUES Whether the claimant has presented a case strong enough to entitle her to judgment. Whether claimant’s employment was properly terminated. Learned Counsel to the defendants Chief Orok Ironbar Esq. submitted that having known the state of the evidence, the procedural law is that – he who alleges proves. SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA DANKWABO (2016) 7 NWLR (PT. 1511) 284.He submitted that it is also known that pleadings do not constitute evidence as decided in the case of WAZIRI & ANOR. V. GEIDAM & ORS. (2016) 2 MJSC (PT. 111) 83 @ 124, PARAS. F-G Coram, Peter-Odili, JSC. Defence Counsel argued that claimant only alleged that his termination did not come from the proper authority, posing the question: “what is the proper authority―. He contended that if it is only the Board that can terminate her employment, where was that proved on record?, as he who alleges proves. OJU v. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 @ 136, PARAS. F-H; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150. Submitting that being a contract of employment, it is the only contract before the Court that must be complied with i.e. Exhibit C3. IDONIBOYE OBU v. NNPC (2003) 2 NWLR (PT. 805) 589; (2003) 4 MJSC 131.He submitted that whether the reports of investigation were communicated to claimant or not does not stop the defendant from terminating her employment. AJAYI v. TEXACO NIG. LTD. & 2 ORS. (1987) 9-11 SC 1 @ 6. It is Defendant’s counsel’s contention that the fact that claimant responded to the queries means that he was afforded fair hearing. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648, PARA. F Coram Rhodes-Vivour, JSC; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25. And that by Public Service Rules under Paragraph 030402 and Chapter 3 Sec. 4 Paragraph 030407 (a), “claimant was even lucky not to have been dismissed outrightly―. He submitted that it is not necessary nor a requirement under the extant laws that before an employer summarily dismisses his employee from his service, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving honesty bordering on criminality. S.B. OLANREWAJU v. AFRIBANK PLC (2001) FWLR (PT. 72) 2008. Defendant’s Counsel argued that the claimant as part of the failure of his case provided no proof or reference to the law allowing him to be reinstated when the law is that an employee cannot be force upon an unwilling employer. OYEDELE v. IFE U.T.H. (1990) 6 NWLR (PT. 155) 194 C.A.; IWUCHUKWU v. NWOSU (1994) 7 NWLR (PT. 357) 379. The CLAIMANT’S FINAL WRITTEN ADDRESS filed on 23rd November, 2016 and dated same day. With the following ISSUE Whether the claimant has proved his case to the extent to be entitled to the reliefs sought. Learned Counsel to the claimant F. N. Nachmada Eq. submitted that the power to remove or discipline Senior or Junior Staff of the defendant is vested in the Board and the Chief Medical Director respectively – Sections 9 and 10 of the University Teaching Hospital (Reconstitution of Board, etc.) Act, making the defendant a creation of statute. However, that the fact that an employer is a creation of statute does not mean all its employments have statutory flavor. IKHILE v. F.A.A.N. (2014) 44 NLLR (PT. 139) 164 @ 192 – 193, PARAS. B-A; PHCN v. OFFOELO (2014) 41 NLLR (PT. 126) 167 @ 208 – 209, PARAS. H-B. Claimant Counsel agreeing with the defendant’s citing of the case of OLORUNTOBA-OJU v. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83; ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150, argued that though that is the position of the law, it however does not apply in the instant case. It is counsel’s submission that since the claimant’s employment is governed by legislations, the claimant’s employment is not only statutory but has constitutional force and can only be terminated in line with the statutes. SHITTA-BEY v. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2015) 16 NWLR (PT. 951) 378; UDONSEK v. AKWA IBOM STATE GOVT. & ORS. (2015) 56 NLLR (PT. 188) 372 @ 412, PARAS. B-C. Counsel to the claimant contended that it is where the Board of the Chief Medical Director has made up its mind that prima facie case has been made out from the report of the investigation panel that the claimant would be accorded fair hearing before termination of employment. BABA v. NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (PT. 192) 388 @ 416, PARAS. C-D; OTUKADEJO v. NIGER DOCK NIG. PLC (2015) 52 NLLR (PT. 173) 61 @ 84, PARS. D-E; OLORUNTOBA-OJU v. ABDUL RAHEEM (2009) 13 NWLR 9PT. 1157) 83 @ 146, PARAS. F-A. He submitted that where the employer did not comply with the condition precedent, that is fair hearing, he forfeits his right to dismiss and any alleged dismissal is a nullity. NEPA v. ANGO 92015) 59 NLLR (PT. 204) 160 @ 218, PARAS. B-D; TAMTI v. NCSB (2009) 7 NWLR (PT. 141) 654. Submitting that the fact that a party appeared before a panel does not ipso facto mean that he was given fair hearing, there has to be more than just an appearance before a panel. ENGR. AKONJOM NSED AYIP v. INEC Suit No: NICN/CA/166/2013 delivered on 19/09/2016 at page 1, per Hon. Justice E.N. Agbakoba. He argued that while the case of IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 648 remains the law, it does not apply to the instant case. The defendants filed their REPLY TO CLAIMANT’S FINAL ADDRESS filed on 25th November, 2016 and dated 24th November, 2016. Defence Counsel argued that Sec. 9 (1) of the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15 relied on by claimant refers to the removal and discipline of clinical, administrative and technical staff, which does not include claimant who was employed by his own letter of appointment tendered as Exhibit C3, as Senior Security Man. Furthermore, that she led no evidence to prove that she fell into any of the 3 categories and that the Court cannot be left to decide on conjecture. On 6th December 2016 parties adopted their Final Written Addresses and adumbrated their respective positions. This matter was adjourned for judgment. Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is the issue as formulated by the claimant: Whether the claimant has proved his case to the extent to be entitled to the reliefs sought or more simply put; whether the claimant is entitled to the reliefs sought. The claimant is claiming the following reliefs in this court; A DECLARATION that the claimant’s employment has statutory flavor. A DECLARATION that the termination of claimant’s employment is unlawful. AN ORDER re-instating the claimant to the post which he ought to have been without loss of Step. #47,393.13 being claimant’s unpaid salary for the month of June, 2013. #282,174 being the claimant’s promotion arrears. #63,733.35 being the claimant’s under-payment from January to May, 2015. Relief 1, 2 and 3 are for declarations as to; the nature of the claimants appointment, that the termination is unlawful, an order reinstating him without step. Relief 4-6, are for unpaid June 2013 salary, arrears o promotion and underpayment for thr months of January – May 2015. With regard to reliefs 1, 2, and 3, in order to ascertain whether the claimant is entitled to these reliefs the court is required to determine the nature of the claimant’s employment relationship with the defendant. This is so because the answer to most of the issues raised in this appeal will depend on the nature of the contract of employment between the parties. The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment Purely Master and Servant relationship Servants who hold their office at the pleasure of the employer Employment with statutory flavour….― The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be―, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service― see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C In SULIEMAN ADAMU Vs. MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20. In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B. In the instant case the claimant has tendered Exhibit C2 reproduced below: UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA OUR REF UCTH/P/2787 18th October 1999 Mr. Michael B. Asuquo C/o Chief Security Officer UCTH-Calabar. OFFER OF APPOINTMENT I am pleased to write on Behalf of the Board of Management of the above Teaching Hospital to offer you the post of SENIOR SECURITY MAN at the Hospital on a commencement salary of N16,764.00 per annum in the salary HATISS 3/1 with effect from date of your assumption of duty. This offer of appointment is subject to your being passed mentally fit for service with the Teaching Hospital. It is a condition of employment that members of the Medical Profession employed by the Board should be members of a recognized Medical Defence of protection organization. This appointment will except where your services are transferred after a previous confirmation, be on probation for two years or for longer period as may be deemed advisable after which it will be confirmed one pensionable terms. The duties of the post shall include the usual duties of this office in which you are engaged and any other suitable duty the Board may call upon you to perform. You shall not either directly or indirectly engage in or be concerned with any other service or business whatsoever or receive commissions or profit of any kind but shall devote the whole of your time and attention to the service of the Board and shall use your utmost exertion to promote the interest of the Teaching Hospital. You shall conform to the rules and regulations of the Board in so far as the same are applicable. You shall be entitled to 30 days Annual leave to be taken by arrangement with your Head of Department and the written approval of the Director of Administration on the recommendation of your Head of Department.in addition you may be granted not more than one week casual leave per anum by the Director of Administration on the Recommendation of the Head of your department Unless you are dismissed and provided you are not on any bond to serve the Hospital for a stipulated period you may terminate your engagement by a month’s notice in writing or by the payment of one month’s salary in lieu of such notice. The Board of Management may also terminate your appointment by giving you one month’s notice or pay one month’s salary in lieu of notice You will be subject in all respects to all the conditions of service stipulated from time to time by the Board of Management. If you are prepared to accept this offer, I shall be glad if you do so in writing within one month of the date of the offer and at the same time indicate a date upon which you would be prepares to assume duty. This offer of appointment will lapse if not taken up within one month. Yours faithfully, (Signed) B. B. ETA For: Director of Administration. In the case of NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) where the court of Appeal held that “In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to 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. See the case of KWARA STATE POLYTECHNIC ILORIN V. SHITTU (2012) 41 WRN 26. And in the case NEW NIGERIA NEWSPAPERS LTD V. ATOYEBI (2013) LPELR-21489 (CA) where the Court of Appeal said this of employment with statutory flavour: “In employment with statutory flavour, that is, employment governed by statute where procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”See also OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 773 at 787, OLORUNTOBA OJU V. ABDULRAHEEM (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.” Per Mbaba, J.C.A. (pp. 16-18, PARAS. G-C). The claimant had pleaded that his appointment was governed by an act of the National Assembly, the University Teaching Hospital (Reconstitution of Boards, etc.) Act, Cap. U15, LFN, 2010. Cap 463 LFN 2004 in its schedule lists the defendants as No. (i) and Section 1 o the said act constitutes a Board of Management to have the functions and powers set out in the Act. Section 5 provides that “(5) subject to this Act, the Board shall have power to appoint (including power to appoint on promotion and transfer and of confirmation of appointments), advance, terminate or discipline employees (including consultants) holding or acting in any office in the hospital; and any such appointment shall be made having due regard to any personnel establishment approved for the hospital―. The claimant also tendered Exhibit C3-C9 his pay slip for the month of June 2015, His Re Designation letter, His Confirmation of Appointment Letter, two promotion Letters, His Letter of Conversion and his Letter of upgrading and Conversion, as well as other exhibits relating to his pay and promotion in furtherance of his appointment. He did not however tender the condition of Service of the Board of Management if any. From the foregoing I find that the claimant has provided enough evidence to enable the court hold that his appointment is one of statutory flavour. It was held by the Court of Appeal in ” P. O. U. IYASE v. UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD (2000) 2 NWLR (Pt.643), pg. 47― Thus the contractual relationship of master and servant is said to have a statutory flavour if that relationship was created and governed by statute or regulations derived from a statute. The fact that the respondent is a statutory body does not mean that the conditions of service of its employees must be presumed to be of a special character thereby putting their relationship over and above that of the ordinary or mere master and servant. It (the relationship) must be ascertained through the pleadings and particular evidence adduced thereon that there are rules and regulations which govern the employment so as to give it a status of particular tenure.. “Per IBIYEYE, J.C.A. (P. 18, paras. B-E). “An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee..” UDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR  (2010) LPELR-3824(CA) Per Odili, JCA (P. 17, paras A-B) Looking at the pleading and particularly the evidence adduced I am satisfied that the claimant has tendered all relevant evidence to show that he was statutorily employed R. UDUAK BERNARD OKON v. THE GOVERNOR OF AKWA IBOM STATE & ORS (2013) LPELR-22112(CA) Having determined the status of the claimant the next thing on board is to look at the propriety of his termination. The letter of termination; Exhibit C18 is itself reproduced below: UNIVERSITY OF CALABAR TEACHING HOSPITAL P.M.B. 1278 CALBAR, NIGERIA Our Ref. UCTH/P/2787/66 24th August 2015 Michael Bassey Asuquo u.f.s. Deputy Director (Finance & Accounts) Accounts Department U.C.T.H. Calabar Sir TERMINATION OF APPOINTMENT I am directed to refer to your contract of engagement contained in clause 7 of your appointment letter and accordingly terminate your appointment with the University of Calabar Teaching Hospital with immediate effect since your services are no longer required. You will however be paid one month’s salary in lieu of notice. You are therefore to hand over all Hospital property and or documents including your staff Identity Card to your Head of Department. By a copy of this letter, the DDF/A has been directed to stop your salary / allowances with immediate effect. (Signed) Ededet Eyoma Deputy Director (Human Resources) For Director Now, the University Teaching Hospitals (Reconstitution of Boards etc.) Act, in Section 9 provides as follows; (9) Removal and discipline of clinical, administrative and technical staff (1) If it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the hospital, other than the Chief Medical Director, should be removed from this office or employment, the Board shall require the secretary to – (a) give notice of those reasons to the person in question; (b) afford him an opportunity of making representations in persons on the matter to the Board; and (c) if the person in question so requests within a period of one month beginning with the date of the notice, make arrangements – (i) for a committee to investigate the matter and report on it to the Board; (ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter. And if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of the Board―. To begin with the defendants made heavy weather of the argument that the claimant did not show the court how by his employment she was either Clinical, Administrative or Technical staff so as to come within the ambit of Section 9, the defendants apart from implying that the claimant does not fall within any of the three listed categories failed to show the court what category he did belong to as her employer. Especially as the defendant premised their entire defence argument on the much touted legal principle of he who asserts must prove relying on SEC. 131 (1) of the EVIDENCE ACT, 2011; YAHAYA DANKWABO (Supra ) Be that as it may neither the UTHRB Act not the Labour Law 2014 defined these terms did not define the terms Clinical, administrative or Technical The Chambers 21st Century Dictionary Revised Edition© Chambers Harrap Publishers Ltd. 1997 defined Clinical to mean ‘Relating to, or like a clinic or hospital, said of medical studies based on or relating to, direct observation and treatment of patients as distinct from theoretical or experimental work.’ And defined Administration to mean ‘ the directing, managing or governing of a company’s affairs and Administrative to mean relating to administration while the word Technical was defined to mean ‘possessing knowledge of or specializing in or relation to a practical skull or applied science especially those studies which are useful to an industry. So taken in context of this case and the Hospital environment I find that Clinical staff would be those whose working in the direct observation and treatment of patients; such as Doctors and Nurses , Administrative staff as those whose work involves the directing and managing the Hospital affairs commonly depicted as support staff etc; Accountants, and Human resource personnel also often referred to as Administrative staff and then Technical staff would be those with specialized skill such as applied sciences used in the Hospital environment such as Lab technician and such other Radio magnetic imagining operatives. From the above I have no problem in situating the claimant as an Executive Officer following proper conversion and upgrading and considering the defendants own acknowledgement of his additional qualification during cross examination, within the administrative staff category. Now the claimant has maintained that his termination was not in line with the laid down procedure Looking at Exhibit C18 in the light of Section 9 UTHBR Act this provisions makes it mandatory that if it appears necessary to consider the removal of an officer in the cadre of the claimant, the Board shall require the Secretary to give notice to the affected person of the reason why she may be considered for removal. And all through the gamut of Exhibits tendered in this court there is no notice issued by the Secretary to the claimant as stipulated under section 9(1 )(a) of the Act. Also the setting up of an investigating committee may be done only if the claimant request for it. In the instant case there is no evidence that in the record that the claimant made any such request. Rather, an investigation Panel was instituted for him. the letter was issued to the claimant there is nothing before the court to indicate that the said letter was issued with the due authorization of the Board, hence making Exhibit C18 a letter issued without due authority, both parties presented evidence of disciplinary action taken by the defendants on the claimant prior to the letter of termination. The defendants have not put before the court any evidence which authorizes DW to terminate the claimant, there is no evidence that the report of the 2nd Panel, ‘The Panel to Investigate a Case of Financial Impropriety against the Under-listed Staff of Accounts Department UCTH’ was ever submitted to the Board, or any evidence that the Board ever directed the claimants termination. The defendants tendered Exhibit D3 and D5 reports of panels; the former D3 dated February 2014 was the report of financial impropriety against the under-listed staff of the Accounts department, a report made by a 5 man investigation panel who inter alia reviewed Exhibit D4, which was dated 24th June 2013 and is the Audit. Looking at these two documents I find that D4submitted a summary and analysis of the Auditor investigation and consisted mainly of tabulations of routine inspections of various sections if the hospital, while Exhibit D3 was made up primarily of excerpts of interviews held and errant copies of receipts obtained from patients where available. In this court, when dealing with excerpts, summaries and annexes of documents frontloaded or tendered by the parties without showing the Court the fuller documents from which they were extracted. Such excerpts were discountenanced. This Court reasoned that because the complete set of the documents wherefrom they were extracted were not shown to the Court, to enable the Court ascertain that they are indeed part of the documents they profess to be, or to enable the Court ascertain whether there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, the said excerpts and annexes had no evidential value. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, In like manner, Exhibits D3 and D5 in the instant case, in being Summaries, analyses and excerpts made from sources which were not tendered before this court I find Exhibits D3 and Exhibit D4 would have no evidential value and so would be discountenanced for purposes of this judgment. See also the unreported case of SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014 Having said that the defendant I find did not rely on the disciplinary procedure to terminate the claimant rather they relied on Exhibit C2, the letter of appointment to terminate the claimant in line with paragraph 7 therein while losing that they had since converted him to a pensionable permanent position a secured cadre which affords him the protection of Section 9 UTHBR Act accordingly. At this juncture, it is glaringly clear that defendants blatantly violated the provisions of section 9(1) (a), (b) and (c) of the Act.” UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR. v. BASSEY  (2008) LPELR-8553(CA). An employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See DR. TAIWO OLORUNTOBA-OJU & ORS. V. PROF. SHUAIB O. ABDUL-RAHEEM & ORS. (2009) 13 NWLR PT.1157 PG.83; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NW LR PT.622 PG.290. BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. V. ESEALUKA LPELR- 20159(CA). The case of OKOCHA V. CSC, EDO STATE [2004] 3 NWLR (PT. 861) 582 is most explicit on this point when it states that― public servants are invested with a legal status and they cannot be properly or legally removed until the said Rules are strictly complied with. See also this Court’s decisions in FRANCIS OLUYEMI OLAMIJU, ESQ. V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NICN/LA/157/2011 the judgment of which was delivered on November 26, 2012 and MR. A. A. OWOLABI V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NICN/LA/160/2011 the judgment of which was delivered on November 26, 2012. In the circumstances of the claimants case I find the termination of the claimant wrongful, unlawful, null and void and was perpetuated totally devoid of due process, I so find and hold. Having declared the termination wrong, unlawful, null and void, the law is that it is deemed not to have occurred in the first place. See E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION [2005] ALL FWLR (PT. 285) 431, where it was held that once the dismissal of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still is a civil servant.  Reliefs 1, 2, and 3 succeed. I agree with the defendants that where a public servant is accused of a misconduct bothering on criminality, it is not the law is that he must first be charged before a regular court to prove his or her guilt or innocence as the case may be. See the cases of OSAYE v. HONDA PLACE LIMITED (2015) 53 NLLR (PT. 177) 51 NIC @ 66 where “a similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court of criminal tribunal before disciplinary issues or action can be raised, was advanced in IKE EDWARD CHUKWUEMEKA v. ENTERPRISE BANK unreported Suit No. NICN/LA/181/2011, the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 – 17 –‘The claimant was invariably relying on the old dispensation as evinced by case law authorities such as BISHI v. THE JUDICIAL SERVICE COMMISSION (1991) 6 NWLR (PT. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as ARINZE v. FIRST BANK (NIG.) LTD. (2000) 1 NWLR 9PT. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, ARINZE v. FBN LTD. (2004) 12 NWLR (PT. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under Sec. 36 (1) of the Constitution that an employee must first be tried in a court of law. That it is therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. This argument of the claimant fails and is dismissed Reliefs 4-6, are for unpaid June 2013 salary, arrears o promotion and underpayment for the months of January – May 2015. In relief 4 the claimant is asking for the payment of his June 2013 salary, in Paragraph 24 of the statement of fact the claimant had pleaded that due to the introduction of IPPS he was not paid this salary and in court tendered Exhibit C19, the pay slip. The defendants in their statement of defence stated that the fact was one within his personal knowledge and denied same. Now the law of evidence is clear of what is required requires for a party seeking to deny an averment of the opposing party, “To constitute an effective and sufficient denial of an averment in the statement of claim or petition, the denial must be apt, precise, succinct, full and complete and not evasive, rigmarole, vague and bogus. See EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246. Also, a mere denial of a detailed, factual situation without attacking the veracity or authenticity of details contained therein is in law not a denial. See JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 283) 586. A traverse that the “1st defendant denies paragraph 22 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein― does not amount to a denial for the purpose of raising an issue for trial. See LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460, UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 188, OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1 and LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620. Furthermore, a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient denial and have been held to amount to admission. See DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170 AND SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214. The defendant’s denial I find insufficient, further contrary to the claimant contention that the non-payment of the claimant salary has nothing to do with his termination does not quiet address the point as non-payment salary is clearly an employment matter falling squarely within the purview of Section 254 (c) (1) (a). I find, The defendant’s ineffective denial is tantamount to an admission. Relief 4 therefore fails. Relief 5 is for areas of promotion, the claimant in pleading that he was entitled to the difference between his salary before promotion and that to be paid after the promotion 12 failed to tender or furnish the court with any evidence in support of the contention, the claimant failed to present the certificated CONHESS salary tabulation and invite the court to determine what he ought to be paid against what he was actually paid and how he came about the 12 time multiplier. This relief fails for lack of substantiation. Similarly Relief 6 cannot be paid as the claimant has not produced evidence what he was actually paid in the 5 months (January – May 2015) showing under payment to enable the court compare this with the amount due to the claimant. Especially as Exhibit C14 is devoid of the claimant’s salary on promotion. Relief 6 also fails The claimants case, for the avoidance of doubt the claimants case succeeds in part and only this far The Court judgment therefore is this. It is hereby declared that the claimant’s employment is one with Statutory flavour/ It is hereby declared that the termination of the claimant’s appointment by the defendant is unlawful. It is hereby ordered that the claimant be reinstated to his rightful position without loss of seniority. It is hereby ordered that the defendants shall pay to the claimant all her due salaries from the date of the purported termination. Cost of this suit is put at N100, 000.00 This is the courts judgment and it is hereby entered accordingly. …………………………………. Hon. Justice E. N. N. Agbakoba Judge. RESEARCHED AUTHORITIES FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 On Whether an employee can be forced on an employer An employee cannot be forced on an employer. In the instant case, the cross-appellant, cannot be forced on the cross-respondent as there has been no love lost between them since 1999. Irrefutably, the plaintiff/cross-appellant, having served the cross-respondent for a period of 25 years cannot be shoved out of his employment and not be paid his disengagement entitlements by the defendant. It would be unconscionable to so do… EX-CAPT. CHARLE EKEAGWU v. THE NIGERIAN ARMY & ANOR. (2010) 6 SCNJ 22 @ 36 referred to.] On termination of employment with statutory backing Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other manner inconsistent with the relevant statute is null and void and of no effect. UNION BANK OF NIGERIA LTD. v. CHUKWUETO CHARLES OGBONNA (1995) 2 NWLR (PT. 380) 647 referred to.] OSAYE v. HONDA PLACE LIMITED (2015) 53 NLLR (PT. 177) 51 NIC @ 66 On Whether an employee accused of gross misconduct involving dishonesty bordering on criminality must first be tried in a court of law before he can be disciplined “A similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court of criminal tribunal before disciplinary issues or action can be raised, was advanced in IKE EDWARD CHUKWUEMEKA v. ENTERPRISE BANK unreported Suit No. NICN/LA/181/2011, the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 – 17 – The claimant was invariably relying on the old dispensation as evinced by case law authorities such as BISHI v. THE JUDICIAL SERVICE COMMISSION (1991) 6 NWLR (PT. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as ARINZE v. FIRST BANK (NIG.) LTD. (2000) 1 NWLR 9PT. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, ARINZE v. FBN LTD. (2004) 12 NWLR (PT. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under Sec. 36 (1) of the Constitution that an employee must first be tried in a court of law. That it is therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must first be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA POLY v. MAINA (2005) 10 NWLR (PT. 934) 487 CA reiterated and applied this principle.
