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National Industrial Court

Mr. Ndubuisi Charles Ohakalam& -VS- Michael Okpara University of

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP, HON. JUSTICE I. S. GALADIMA.

                         

 DATE:           30th October, 2019.                                                                      

SUIT NO: NICN/OW/05/2018

BETWEEN:

NDUBUISI CHARLES OHAKALAM                                                                     CLAIMANT

 

AND

 

  • MICHAEL OKPARA UNIVERSITY OF AGRICULTURE UMUDIKE
  • VICE CHANCELLOR, MOUA UMUDIKE (PROFESSOR FRANCIS

OGBONNAYA OTUNTA)                                                                           DEFENDANTS

  • REGISTRAR AND SECRETARY TO THE COUNCIL, MOUA

UMUDIKE, (JACINTA N. OGWO-AGU)

  • THE COUNCIL, MOUA UMUDIKE.

 

 

REPRESENTATION:

  • SAMUEL E. NWADIGHOHA FOR THE CLAIMANT.
  • EMMA E. UKAEGBU; W.O. AGUGUO FOR THE DEFENDANTS.

 

 

JUDGEMENT:

 

This Claimant filed this cause by way of a writ of complaint on the 12/2/2018 alleging in the main that he was wrongfully and unlawfully dismissed from his employment  with the 1st Defendant institution whereupon he seeks the following reliefs:

  1.  A DECLARATION that the statutory procedure required to be followed towards the discipline and termination of the employment of the Claimant was not strictly followed as same is against the terms and conditions of service of the 1st Defendant and also contrary to the provisions of Section 16(1) and (2) of the University of Agriculture Degree No. 48 of 1992 making it mandatory that the investigation panel must be constituted by the Vice Chancellor or the Senate of the 1st Defendant which provision was greatly undermined as it was not the 2nd Defendant that constituted the investigation panel that looked into the allegation of embezzlement against the Claimant.

 

  1. A DECLARATION that the composition of the Investigation Panel towards the discipline and termination (dismissal) of the employment of the Claimant was compromised as against the provisions of Section 16(1) and (2) of the Universities of Agriculture Degree No. 48 of 1992 making it mandatory that the composition of the Investigation Panel must include as member the President or Chairman of the Union (Academic Staff Union of Universities) to which the Claimant belonged or mandatory submission of representation to the Council through Claimant’s Head of Department as statutorily required which procedure was greatly undermined by the Investigation Panel rendering their findings null and void and of no effect whatsoever.

 

  1. A DECLARATION that an allegation of embezzlement of several sums of money being computed into several millions of Naira leveled against the Claimant amounts to committing a crime far removed from the domestic affairs/jurisdiction/investigation of the 1st Defendant as such rights constitutionally has been the exclusive reserve of a Court of law set up by the Constitution of the Federal Republic of Nigeria which proper forum the complaints of the Claimant’s accusers can be ventilated in public and where the Claimant could be sure of getting fair hearing as no other tribunal or investigation panel has the power to try the Claimant for any alleged criminal offence inclusive of that of the Defendants.

 

  1. That the act of the Investigation Panel in refusing to accept documents presented by the Claimant in his defence or to call his subordinate to testify to his favour is an abuse of Administrative authority/absolutism and against the spirit and principle of fair hearing and thereby render their findings null and void.

 

  1. A declaration that the Claimant was not told in writing as a NOTICE the grounds on which he is being considered for dismissal…

 

  1. A declaration that the subsequent termination/dismissal of the employment of the Claimant by the 4th Defendant or any other Defendants is wrongful, unconstitutional and a violation of the Claimant’s rights.

 

  1. A mandatory order compelling the Claimant’s reinstatement to his employment with full benefits with effect from 23/1/2018.

 

  1. The sum of N30,000,000.00 general damages.

Despite filing a memorandum of appearance and a joint statement of defence along with other processes on the 27/4/2018, these Defendants apparently discontinued with the defense of this action since the 29/10/2018 which was the date the Claimant testified on his behalf. On subsequent adjournments thereafter, the Defendants neither appeared in Court nor sent a representative on their behalf and so by the 28/1/2019, they were foreclosed from cross examining the only witness who had testified on behalf of the Claimant on record. Surreptitiously, on the 25/3/2019, the Defendants via a Counsel, W. O. Aguguo, appealed to this Court for the vacation of the order of foreclosure made on the 28/1/2019 in the interest of justice. This Court graciously vacated the order of foreclosure whereupon their Counsel cross examined CW 1. The case of the Defendant was thereafter opened on that same day and he too was cross examined by the Claimants’ Counsel. The case was thence adjourned for adoption of the parties’ final written addresses and submissions on 23/5/2019. By the 24/10/2019 however, only the Claimant had filed his final written statement. The Defendants thus either refused or neglected to file any final written address and submissions. Claimant’s Counsel adopted the only written address filed and the case was thus adjourned to today, 30/10/2019, for pronouncement of this here judgment.

CLAIMANT’S CASE:

As already stated above, the Claimant opened his case on 29/10/2018. He testified in open Court and tendered a total of 16 documents on his behalf as follows:

  1. Exhibit C 1 – letter of temporary appointment dated 06/09/2011;
  2. Exhibit C 2 – appointment letter as ag. Manager of 1st Defendant’s bookshop dated 26/10/2011;
  3. Exhibit C 3 – Regularization of appointment letter of 27/3/2013;
  4. Exhibit C 4 – letter of upgrade of appointment to executive officer dated 31/05/2015;
  5. Exhibit C 5 – Conversion letter to academic position dated 19/8/2015;
  6. Exhibit C 6 – Handover letter dated 10/5/2016 containing stock/inventory of items in the bookshop;
  7. Exhibit C 7 – List of debtors/creditors contained in a memo;
  8. Exhibit C 8 – Memo of 29/09/2016 from the Claimant to the Chairman Committee of the 1st Defendant’s bookshop;
  9. Exhibit C 9 – Copy of Claimant’s expenses incurred within the period under review;
  10. Exhibit C 10 – Copy or cash purchases of 1stDefendant’s bookshop prepared by the Claimant;
  11. Exhibit C 11 – Solicitor’s letter to 3rdDefendant;
  12. Exhibit C 12 – Remittance of 9/3/2015;
  13. Exhibit C 13 – Customers’ statement of account;
  14. Exhibit C 14 – Conditions of service of the 1stDefendant;
  15. Exhibit C 15 – Dismissal letter dated 23/1/2018;
  16. Exhibit C 16 – letter of appreciation by VC of 1stDedendant.

CW 1 also adopted his further deposition in response to the Statement of Defence which was filed on 10/5/2018. He relied on another exhibit tendered along with the above exhibits. Upon concluding his evidence, the Defendants’ Counsel cross examined him on the 25/3/2019 whereupon he closed his case.

THE DEFENDANTS’ CASE:

The Defendants called in the testimony of a sole witness, one A.S. Onoja, who testified on their behalf on the 25/3/2019. He tendered a total of 3 exhibits as follows:

  1. Exhibit D 1 – Report of Staff investigation panel/Staff Disciplinary Committee;
  2. Exhibit D 2 – Handover note;
  3. Exhibit D 3 – Letter to the Police.

The witness was immediately cross examined whereupon the Defendants closed their own case.

CLAIMANT’S FINAL WRITTEN ADDRESS AND SUBMISSIONS:

 

The Claimant’s Counsel filed a final written address as ordered by this Court on the 17/4/2019. In it, he raised two issues for determination which are here under summarized thus:

  1. Whether the procedure for dismissal was followed by the Defendants as per the Conditions Of Service For Senior Staff, 2017 tendered as Exhibit C 14?
  2. Whether the procedure for the composition of the Investigation Panel was done in accordance with Section 18 (2) of University of Agriculture Law No. 48 of 1992?

Learned Counsel in respect of issue 1 above raised argued inter alia that the procedure utilized by the Defendants for the dismissal of the Claimant were not duly followed through strictly. This is accordingly because the Claimant’s employment which is statutorily flavored, can only be determined in accordance with his conditions of service. He called to his aid the decision in C.O.E EKIADOLOR V.OSAYANDE (citation supplied). He further relied on the decision in OSISANYA V. AFRIBANK (citation supplied) to emphasize that when a holder of an office which is protected by statutes is to be disciplined, the procedures laid down by the applicable statute or regulations must be fully complied with. Of materially contravened, any decisions affecting the rights or tenure of the person’s office must be declared null and void.

Accordingly, exhibit C 14 which contains the terms and conditions of service regulating this Claimant’s employment, provides under Chapter 11 the procedures to be duly followed where an employee is to be dismissed. He quoted those provisions as well as relied on Section 17 (1) (a) – (c) and Section 18 (1) – (4) of the Federal University of Agriculture Act of 1992 to buttress the fact that as claimed in the Statement of facts in this action, the Claimant was never given the benefit of being tried properly before a Staff Investigation Panel in accordance with those provisions above cited.  He stated that before any disciplinary action can be taken against this Claimant, the following steps must be made:

  1. The Vice Chancellor shall constitute a Staff Investigation Panel;
  2. The panel must include a representative of the Claimant’s union who is a head of the Academic Staff Union of University;
  3. The panel must submit its findings back to the VC for consideration;
  4. The VC shall submit the report to the Governing Council who in turn shall forward same to;
  5. The Council Staff Disciplinary Committee (CSDC).

Learned Counsel is convinced that this procedure was compromised by the Defendants and such is unsatisfactory in law. He said that the MOUA UMUDIKE Conditions of Service for Senior Staff 2017 (as revised), will not aid the Defendants in this case and impressed on this Court to find that the Claimant was dismissed on 23/1/2018 after the Conditions of Service above mentioned was revised. He claims that the Defendants tried to deny the existence of the revised conditions of service for senior staff of the 1st Dedendant University and such attempt must be construed by virtue of Section 169 (d) of the Evidence Act as an attempt to withhold evidence which is adverse to them. He stressed on that the Defendants by-passed the regulations and laws governing this Claimant’s employment when the purported report made by the investigation panel, was sent directly to the Staff Disciplinary Committee and then directly to the Governing Council of the University without the VC’s impute. He asked me to refer to Exhibit D 1 tendered by the Defendants to find this fact as proven. He also wants this Court to find as proved the facts that the Claimant was not served with any notice in writing or given an opportunity to represent to the Council through his head of department, or allowed to bring his witnesses. That because of this default, the Claimant must be declared entitled to the reliefs sought before this Court. He stated that it is the duty of this Court to enforce mandatory provisions of statutes and he cited ADEDEJI V. N.B.N LTD (citation supplied) to buttress this point. He wants this Court on the above arguments proffered, declare his client’s dismissal as null and void for violating the provisions of regulations and statutes governing his contract of employment.

On issue number 2 raised, learned Counsel said that according to Section 18 of Law no 42 of 1992, the investigation panel shall include the President or Chairman of the Union to which the staff being investigated belongs. He said this requirement is further provided for verbatim as Section 18 of the Federal Universities of Agriculture Act Cap F22 LFN 2004. He asked this Court to refer to the answers given by the Defence Witness when he had said that the head of the Union to which this Claimant belonged to was not called or invited to sit in the Staff Investigation Panel set up to consider disciplinary measures against the Claimant. Learned Counsel said that from the contents of Exhibit D 1 and D2, it is glaring that the head or representative of ASUU was not part of the panel set up to investigate this Claimant. Counsel cited HARUNA V. UNIVERSITY OF AGRICULTURE, MAKURDI (citation supplied) where the Court had accordingly held that for failing to invite the representative of the union as a member of the Investigation Panel  in accordance with Section 16 (1) and (2) of the University of Agriculture Decree No. 48 of 1992, the panel was unduly constituted. Counsel again reiterated the obligation by the courts to be bound by mandatory provisions of substantive laws and urged that the Claimant’s reliefs be granted.

On denial of fair hearing, the learned Counsel had argued that the Claimant was denied fair hearing when he was accordingly not issued with any notice before his trial was commenced by the investigation panel. He again relied on Chapter 11.9 of Exhibit C 14 and Section 17. A hearing is accordingly not fair if the party is refused a proper hearing or denied the opportunity of being heard. Accordingly, when the civic rights of an employee is infringed upon, it behooves on the Court to protect such right — AKINTEMI V. ONWUMECHILI (citation supplied). He wants this Court to equally find that this Claimant’s right under Section 36 (2) has been infringed upon by the Defendants.

On the question of whether the allegation of embezzlement levied against the Claimant amounts to the commission of a criminal offence, he said that the allegation made against the Claimant which led to his dismissal was that he embezzled monies not belonging to him. Counsel argued inter alia that where an allegation of crime is made against an employee, the matter ceases to be a matter for internal discipline as it becomes an issue for the Court to try. Accordingly, it is based on the finding of a court of law on the allegation that the VC may then proceed to exercise his disciplinary power against the party. He cited UNILORIN V. AKINROGUNDE (citation supplied). Counsel argued that it was not for the Investigation Panel to have declared the Claimant guilty of embezzlement and since he was never tried by a competent Court of law, he is entitled to the grant of his reliefs in this suit. He finally urged this Court to grant the reliefs sought in its entirety and to reinstate the Claimant to his employment with full benefits, rights and privileges. He sued for the award of N30,000,000 damages.

DECISION:

 

I have gone through the entire processes filed before this as Court well as examined the evidence and submissions made by the Learned Counsel for the Claimant. As stated before hand, the Defendants did not file a final written address and submissions and for that default, they were foreclosed by virtue of Order 45 Rule 12 of the Rules of this Court 2017 from filing same. Suffice it to say that the Claimant is still bound to prove this action on a preponderance of credible evidence despite the failure of the Defendants to file any final written brief of arguments. The leverage the Claimant has is that this Court’s findings shall be based on the issues raised by the Claimant which are as follows:

  1. Whether the procedure for the dismissal of this Claimant was followed by the Defendants as per the Conditions Of Service For Senior Staff, 2017 tendered as Exhibit C 14?

  1. Whether the procedure for the composition of the Investigation Panel was done in accordance with Section 18 (2) of University of Agriculture Law No. 48 of 1992?

There are two questions raised by the Claimant’s Counsel which shall require answers to as well and these are:

  1. Whether the Defendants could utilize administrative means to determine his alleged culpability for the offence of embezzlement?
  2. Whether the Claimant received fair hearing before he was dismissed by the Defendants? And

The facts of this case briefly are that the Claimant had been an employee of the 1st Defendant University since 6/9/2011 initially by letter of temporary appointment and had been promoted in 2013 to the position of Executive Officer thus making his appointment pensionable. He was later upgraded to the position of a Higher Store Officer on CONTISS 7 with effect from 1/6/2013 and by 2015 he was converted to an Assistant Lecturer in the Department of Human Resource Management of the University a position he held until 23/1/2018 when he was purportedly dismissed by letter to that effect, by the Defendants for alleged embezzlement of funds. The Claimant alleges that as a Senior Staff of the University, his employment is governed by the Conditions of Service of Senior Staff 2017 (as revised). According to the Claimant, the Defendants maliciously set up an investigation panel to allegedly investigate his dealings when he was a store manager of the bookshop which he was managing for the 1st Defendant institution before his conversion to an academic staff. That he had already stopped managing the store for a period of over two years before the investigative panel was allegedly constituted  to investigate him. According to the Claimant, the panel was set up by the present VC (2nd Dedendant) without regards to the regulations both contained in the laws establishing the University and his conditions of service. He was accordingly deprived fair hearing when he was dismissed without granting him the opportunity to defend the allegations made against him and without any notice served on him by the investigation panel he was asked to face. He alleges further that the panel had tried him of the offence of embezzlement and found him culpable whereas they lack such powers so to do.

The Defendants deny all these and typically, they had filed in their statement of defence, a reflection of the following facts:

  1. That the Defendant had not remitted the sum of N17,656,760 to the 1st Dedendant from the proceeds of the bookshop he had managed.
  2. The investigation panel was accordingly set up at the time the Claimant was converted to an academic staff and asked to handover the affairs of the bookshop to a new manager, that was on 30/8/2016.
  3. The rules and regulations of the Claimant’s conditions of service were duly followed before he was dismissed from his employment.
  4. That both the investigative panel and the Staff Disciplinary Committee followed through with their terms of reference in reaching the decision to dismiss the Claimant.
  5. The Claimant accordingly had access to call any witness of his choice during the investigation by the panel.

In proving his case, the Claimant established that his employment is statutorily flavored as such he could not have been dismissed with ignominy as the Defendants did insisting that the provisions of the law establishing the University as well as the regulations guiding his contract of employment stipulate certain steps which must be taken before a dismissal could be made by these Defendants. The Defendants’ witness denied all these stating that the Claimant was given every adequate opportunity to defend himself and that all laid down guidelines were duly followed through before his dismissal was effected by the Defendants.

I shall lump the 1st and 2nd  issues raised by the learned Counsel for the Claimant as per the procedure to use if an employment with statutory flavor is sought to be dismissed by an employer where an allegation of crime is made and whether the proper procedure was followed in this case as per Exhibit C 14 and whether the composition of the investigative panel was done properly. I agree with learned Counsel wholeheartedly that any procedure utilized in dismissing this Claimant must be in compliance with the regulations governing his employment. In this instance, while setting up the Investigation Panel for the purpose of investigating this Claimant, the provisions of Chapter 11 of the Exhibit C 14 must be strictly adhered to. In Chapter 11.2 of Exhibit C 14, it is specifically provided that the VC shall constitute a Staff Investigation Panel which shall include a representative of the staff’s Union to which he belongs. The panel shall forward its report to the VC for consideration and then to the University Staff Disciplinary Committee whose report and recommendation shall be forwarded to the Governing Council for Council Staff Disciplinary Committee’s final decision. By virtue of Chapter 11.9 of Exhibit C 14 also, an employee shall not be dismissed until he has been told in writing of the grounds on which he is considered for dismissal; given an opportunity of submitting representation to the Council through his head of unit or department; the appropriate Committee had considered his representations and that of his unit or department head (if any); he is given an opportunity to produce witness(es); he is informed of the date he is to face the committee investigating him; and the committee must have investigated into the matter and made a report to the council whereupon the council may take a decision to dismiss the employee.

In the case of UNITED BANK FOR AFRICA PLC V. MRS DOREEN NKOLIKA ORANUBA (2013) LPELR-20692(CA), with respect to the procedure to follow when an employee is to be dismissed, the Court had held that:

The proper procedure to adopt in the situation is as laid down by the Supreme Court in the case of Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt.192) 388 @ 418-419, per Nnaemeka-Agu JSC of blessed memory, had held that: “Where some allegations have been made against an employee…the employer is entitled to set up a panel to investigate the allegations. Such an investigating panel is not a court of trial; so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source…The panel of inquiry not being a court of trial, none of the persons whose names feature in the inquiry can insist on any right to cross-examine other persons who make allegations or present memoranda at the inquiry. But once the panel has concluded its inquiry and makes up its mind that any points had prima facie been made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services.” Per IYIZOBA, J.C.A. (Pp. 42-43, paras. D-C).

Based on the foregone, it is imperative for a Defendant who seeks to justify the dismissal of a Claimant to establish that the process was done in conformity with the provisions of his terms and conditions of service. Where an employment is statutorily flavored, the only way to ensure the dismissal of an employee is legal, shall be as dictated by the law establishing the employer and the provisions or regulations of the employees’ terms and conditions of service and no more.

From the instant case, the fact that the Defendants have not established that they justifiably dismissed the Claimant in accordance with Exhibit C 14 seems to resonate quite loudly. This is in view of the fact that their Exhibit D 1 and D 2 do not show who the members of the Investigation Panel were and or whether the Claimant had a representation from his union in that committee as provided for under Chapter 11 above. It has equally not been shown by the Defendants that the Claimant received sufficient notice to face the committee or that he was informed of the allegation against him. It is also doubtful whether he was given any opportunity to call any witness(es) in view of any evidence suggesting this. This default is a basis for creating sufficient doubts as to the impartiality of the panel itself. Thus said, I concede with the arguments made by Claimant’s Counsel with regards to the 1st issue raised.

On whether once an allegation of crime is made against an employee and it forms the basis of discipline it must first be determined by a competent Court and not by an administrative panel, I refer to the case of A.-G., Kwara State v. Ojulari [2007] 1 NWLR (Pt.1016) where this issue was properly treated and decided upon by the Court of Appeal. It held thus:

“Let us examine recent judicial pronouncements. It appears to me that the decision in Dr. G. O. Sofekun v. Chief N. A. Akinyemi & 3 Ors. (1980) All NLR pg. 153 has been substantially modified. The Supreme Court had held in that case that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated to ensure the accused gets a fair hearing as set out in subsections 4 – 10 of section 22 of the 1963 Constitution. It was their Lordships’ view that if an amendment of the Public Service Commission Regulation of Western Region seeking to provide for disciplinary proceedings and dismissal of public officers for criminal offences without prior institution of criminal proceedings was not struck down as ultra vires, the judicial powers of the courts would be wholly absorbed by various commissions or organs of the executive branch of the State Government. Hence a long line of cases emerged including Denloye v. MDPDC (1968) 1 All NLR 306, FCSC v. Laoye (1989) 2 NWLR (Pt. 106) pg. 652; Garba v. University of Maiduguri (1986) 1NWLR (Pt. 18) pg. 550, Ekundayo v. U. I supra; etc Where an employee is sought to be removed in a contract with statutory flavour, that is a contract of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is null and void and of no effect. See: Geidam v. NEPA (2001) 2 NWLR (Pt. 696) pg. 45 at pg. 55; UBN v. Ogboh (1995) 2 NWLR (Pt. 380) pg. 647. In both cases, cited above, it was held that since the allegations were of misconduct amounting to crime, the employer had no summary right of dismissal until the employee had been found guilty by the law court. In contrast, the Supreme Court in Arinze v. F.B.N. Ltd. (2004) 12 NWLR (Pt. 888) pg. 663 held that in statutory employment as well as in private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bothering on criminality, and in such a case, it is not necessary nor is it required under S.36(1) of the 1999 Constitution that an employee must first be tried in a court of law. I agree with the learned appellants’ counsel that following the case of Yusuf v. Union Bank Ltd. (1996) 6 NWLR (Pt. 457) pg. 632, (1996) 6 SCNJ 201 the prosecution of an employee before the law court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct. It would all depend on the circumstances of each case. In Yusuf v. Union Bank Ltd., the employer’s decision to dismiss summarily without recourse to the law courts an employee who had committed gross misconduct which bordered on criminality was upheld by the Supreme Court. The trial court had found that indeed the employee had committed acts of gross misconduct which justified his summary dismissal. The case of Salihu v. Fougerolle-Fougerolle (supra) must be distinguished from this case. In that case, this court held that where an employee accused of misconduct bothering on criminality not only admits that he actually committed the act of misconduct and the employee’s condition of service provide for the power of the employer to summarily dismiss without prior recourse to the law courts, the employer can summarily dismiss. To my mind, the case of Arinze v. FBN Ltd. (supra) must also be distinguished from the facts and circumstances of this case. In this instance, the respondent has been accused outright of forgery (a criminal offence) and stealing the sum of N5,086,258.50 (also a criminal offence for which the employer was demanding restitution). This is not a case of “allegation of offences bordering on criminality”. It is an outright charge of having committed serious offences falling under the category of felony. In Arinze v. FBN the employer with proven evidence of insubordination and fraudulent claim of money, the finding of the trial court was that he was given fair hearing. Moreover the trial court had considered the case on the facts and found the allegations “proven” against the employee. It seems to me that there must be a clear distinction which the learned Justices of the Supreme Court have always taken into consideration between gross misconduct for instance administrative insubordination and dishonesty i.e. telling lies etc – not serious enough to be labeled a “criminal offence” on one hand, and an allegation of outright commission of an offence contrary to the Penal Code. The second paragraph of exhibit 9 – the letter of dismissal written to the respondent shows that she was dismissed because it was believed and accepted that she had committed ‘fraud’. The letter reads as follows: “In view of the level of your involvement in the fraud, I am directed to inform you that you are dismissed from service with immediate effect. In addition, you are to refund the sum of N5,086, 258.50 to the Government coffers, being the value of missing materials in the store under your care. ” (Italics mine) The Supreme Court held in Raymond S. Dongtoe v. C.S. C. Plateau State & Ors. (2001) 9 NWLR (Pt.717) 132, (2001) 4 S.C.N.J. 131 had found that it was not every allegation of crime against an employee that must be proved before the regular criminal courts. A domestic tribunal is competent to take action against an official accused in respect of his conduct where the official admits the commission of the misconduct on which the allegation is founded if otherwise, the official may not be disciplined until the official has been tried before a regular court – Admission of the official may be inferred from conduct or evidence e.g. his reply to a query. Also the contract of employment must empower the employer to summarily dismiss an employee in such an event. Thus, a domestic tribunal is not competent to usurp the constitutional function of regular courts of law. Karibi-Whyte, J.S.C. in Dongtoe v. Civil Service Plateau gave a very clear enunciation of the law on this issue. His Lordship stated that a decision is authority for what it actually decides and judgments should be read in the light of the facts on which they were decided. When there is an allegation of the commission of criminal offences against the employee by an employer which has been denied by the accused, the employer making the accusation of the commission of criminal offences as a basis of dismissal of the employee from service must satisfy the constitutional requirement by establishing the guilt of the employee according to the law. The burden of proof in criminal cases on an accuser is proof beyond reasonable doubt. An administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. Where there has been an admission of guilt the need to prove any allegation of crime does not arise. Dongtoe v. Civil Service supra at pg. 155 – 160. Thus, my humble opinion is that the position of the decision law on this matter now is that where there is no admission of guilt on the part of an employee accused of not just administrative misconduct, but serious criminal offences, the employer is obliged to prosecute the employee in the law court to prove beyond reasonable doubt the allegation of crime. To my mind this cannot but be so. Administrative misconduct may not destroy a person’s name and reputation, but a criminal allegation may destroy name and careers for generations to come. Hence the need for the impartial arbiter – the law courts as opposed to domestic tribunals with its attendant limitations. I am of the humble but firm view that in the circumstances of this case, in view of the consistent denial by the respondent of the charges of falsification of records, fraud, etc levied against the respondent which are serious criminal allegations, the appellants were obliged to prosecute her successfully before a court of competent jurisdiction before they could dismiss her. The report and findings of the panel of inquiry could have been used as the basis of the criminal prosecution. The appellants have not shown that the contract of employment authorized the government to dismiss summarily where there are serious allegations of crime.” Per OGUNWUMIJU, J.C.A.(Pp. 21-27, paras. F-B).

Therefore, I completely agree that the administrative panel set up in this case to investigate this Claimant on an allegation as grave as the embezzlement of over N17 M, lacked the jurisdiction to have tried and found this Claimant culpable and thus empowered to have dismissed him in the manner it did. I therefore resolve this question also in favor of the Claimant’s submissions.

As far as the question of fair hearing is concerned, I am of the firm view that the Claimant was not accorded any fair hearing by the Defendants. As such, I adopt the arguments and submissions made by the learned Counsel in making this finding.

It is worthy of note to state here that it is not as though this Court condones gross misconducts as is alleged against this Claimant. The thrust of this judgment is on whether there is probable cause to believe that the Claimant was given a fair hearing before he was dismissed. The Defendants acted inadvisably by not ensuring that the right steps were followed through and that the Claimant was properly tried before a competent Court of law for the offence levied against him.

Therefore, based on the foregone findings and for the avoidance of any doubts, this Claimant’s case succeeds. I specifically hereby grant the following reliefs 1, 2, 3, 4, 5, 6, and 7 as sought.

The Claimant is awarded the sum of  N 100,000.00 only as general damages against these Defendants jointly and or severally.

Judgement entered accordingly.

Delivered in Owerri this 30th day of October, 2019.

Hon. Justice I.S. Galadima,

Presiding Judge,

Owerri Division.

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