IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE JOS JUDICIAL DIVISION HOLDEN AT JOS BEFORE HIS LORDSHIP HON. JUSTICE K. I. AMADI. DATED: February 13, 2019 SUIT NO.NICN/JOS/2/2015 BETWEEN: MR. SIMON B. GULESH CLAIMANT AND 1. THE GOVERNING COUNCIL, PLATEAU STATE COLLEGE OF AGRICULTURE GARKAWA. 2. PLATEAU STATE COLLEGE OF AGRICULTURE GARKAWA 3. BARR. JAMES GIWA, CHAIRMAN APPOINTMENT AND PROMOTIONS (SENIOR STAFF) ADHOC COMMITTEE 4. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATES INSTITUTIONS PLATEAU STATE COUNCIL COLLEGE OF AGRICULTURE, GARKAWA 5. WILSON PAM CHOMO 6. KEVIN GWAIPAI KOTEL DEFENDANTS Representation: H. E. Pekes for the Claimant. N. D. Shase’et, Esq with G. E. Dashe, Esq, N. H. Gumut, Esq and Nanfe Mbap, Esq for the 1st, 2nd 3rd, and 4th Defendants G. Omachi for the 4th Defendant. Ishaya Pwajok Gyang for the 5th and 6th Defendants. JUDGMENT INTRODUCTION: The Claimant commenced this case by a writ of general form of complaint on March 20, 2015. And by the amended statement of facts filed on July 13, 2016 the claimant claimed against the Defendants as follows: (a) AN ORDER declaring that the termination of the Claimant’s appointment by the 1st and 2nd Defendants via a letter dated 19th December, 2014 is wrongful, unlawful and therefore null and void. (b) AN ORDER reinstating the Claimant’s appointment with the 2nd Defendant and all his salaries emoluments, entitlements and all other rights which were affected before and after the termination of the Claimant’s appointment by the 1st and 2nd Defendants be paid for and given to Claimant. (c) AN ORDER declaring that it is only the 4th Defendant that can discipline the Claimant if he is in any way found wanting as is contained in the Constitution of the 4th Defendant and not the 1st and 2nd Defendants. (d) AN ORDER of perpetual injunction restraining all the Defendants particularly the 1st, 2nd and 4th Defendants from further harassing, investigating or disrupting the Claimant from discharging his lawful duties as a Staff of the 1st Defendant. (e) Cost of the action. The 1st, 2nd and 3rd Defendants filed their amended statement of defence on February 3, 2 017. The 4th Defendant filed its amended statement of defence on October 20, 2017 and the 5th and 6th Defendants filed their amended statement of defence on March 17, 2017. BRIEF FACTS OF THE CASE: The Claimant who was a staff of the 2nd Defendant and former Chairman of the 4th Defendant had his appointment terminated due to alleged financial misappropriation of funds that were contributed by the members of the 4th Defendant for the purchase of a bus. And he challenged the said termination of his employment hence this suit. TRIAL During trial the Claimant testified for himself as C.W1. He tendered about 15 documents which were admitted and marked accordingly. He was crossed examined by the Defendants thereafter he closed his case. The 1st, 2nd and 3rd Defendants called 2 witnesses and tendered 19 documents. The 4th defendant called two (2) witnessed DW3 and DW4 and tendered some documents in evidence which were admitted as exhibits. The 5th and 6th Defendants testified for themselves respectively and also tendered some documents in evidence as exhibits. At the close of trial, the parties were ordered to file their final written addresses. In his final written address, the learned counsel for the 5th and 6th defendants raised a sole issue for determination thus: Whether the claimant has a cause of action against the 5th and 6th defendants. In arguing this sole issue counsel submitted that from the pleadings of the Claimant there is nothing to show that the Claimant has a cause of action against the 5th and 6th defendants. That the claimant mentioned the 5th and 6th defendants only in 2 paragraphs, that is, paragraphs 7 and 30 which paragraphs merely described the 5th and 6th defendants. That during cross examination, the claimant agreed that the 3 committees that he and the 5th and 6th defendants appeared before indicted him and the 5th and 6th defendants. That neither the 5th nor 6th defendants were members of any of the committees; that the 5th and 6th defendants did not recommend his dismissal, and that the termination of his appointment was not done by any of them. That the 5th and 6th defendants have never harassed him, investigated him or disrupted him from discharging his lawful duties as a staff of the 1st and 2nd defendants. Counsel urged the court to dismiss the claimant’s case against them. The learned counsel for the 4th defendant in his own final written address raised two issues for determination thus: Whether the claimant has established reasonable case against the 4th defendant before this Honourable Court to entitle him to the claims sought and whether or not the claimant can be disciplined by the 1st defendant. In arguing issue, one counsel submitted that in Civil proceedings/cases, the burden of proof lies on that person who would fail if no evidence at all were given on either side, that in this case the Claimant has failed to discharge the burden placed on him to adduce cogent and reliable evidence to prove his case against the 4th defendant. In respect of issue two, counsel argued that the 1st defendant acted accordingly in dismissing the claimant because the Claimant was given the opportunity to respond to the allegations in writing and he did, he further made oral submissions to the committee. That the committee found him culpable and was asked to refund the misappropriated and unaccounted funds. That it was after the claimant’s refusal to refund all the misappropriated funds that the 1st defendant who has the power to discipline its staff issued letter of termination of appointment to the claimant. Thus, the procedure adopted by the 1st defendant in terminating the claimant’s appointment was in order. Counsel urged the Court to dismiss this case. The learned counsel for the 1st -3rd defendants in his own final written address raised one issue for determination thus: Whether or not the termination of the Claimant’s appointment by the 2nd and 3rd Defendants from its employment was appropriately done according to law. In arguing this issue, counsel submitted that before one becomes a member of NASU, he must first of all be an employee of the 1st and 2nd defendants. That the Claimant became an employee of the 1st and 2nd defendants before he qualified to be a member of NASU, thus, it is the responsibility of the 1st and 2nd defendants to ensure that its employees do not act or conduct themselves in such a manner that will put the image of the institution to disrepute That the 1st and 2nd Defendants diligently and patiently followed due process before the employment of the claimant was terminated. That Exhibit D1A is a query issued to the claimant for involving in financial indebtedness to Union Bank Plc, Exhibit D1B which is a circular from the 1st and 2nd defendants, where the claimant failed and or refused to comply with, his name being number 12 on the list which necessitated issuance of him of Exhibit D1A and a warning to him vide exhibit D1C in 2010 and Exhibit D1G which is another letter of warning. That Exhibit D1D was issued the claimant which is a reminder to an earlier letter to him by a Committee set up by the Management of the College following some financial impropriety reported to it but he failed to comply. That this refusal by the claimant resulted into Exhibit D1E which was issued the claimant requesting him to make representation before the Management Committee of the allegation against him. That the issue of NASU bus money started with a request by NASU to Management to deduct salaries of its members from source for the purpose of buying a bus for the union (Exhibit D1H). That the deduction totaling about N1, 690,000.00 was paid to the union but the bus was not purchased consequent upon which some members of the union lodged a complaint to the 1st and 2nd defendants vide Exhibit D1J. The union after meeting with the Provost of the 1st and 2nd Defendants, advised them to investigate the allegation which they did and a copy of the report was forwarded to the 1st and 2nd defendants (Exhibit D1K). Consequent upon exhibit D1K, the 5th and 6th defendants made a refund but the claimant failed and or refused to do same (exhibit D1O). That the claimant again was queried vide Exhibit D1P and appeared before the Appointment and Promotions Committee, (Exhibit D1Q). Counsel submitted that from the exhibits presented before the court, the 1st and 2nd defendants followed due process as laid down in the Condition of Service before the termination of the Appointment of claimant. Continuing counsel submitted that where the conduct of the servant/employee is of a grave and weighty character as to undermine the confidence which should exist between him and his master/employer, the employer can dismiss him summarily, referring to the case of Wayo v JSC Benue State (2006) ALL FWLR (pt.302) p.87 at p.88 para. B. Counsel urged the Court to dismiss the claim with punitive cost same being vexatious and lacking in merit. The learned counsel for the claimant on the other hand raised two issues for determination to wit. 1. Whether the termination of appointment of the claimant by the 1st and 2nd defendant is not unlawful, wrongful and therefore null and void. 2. If the answer to 1 above is in the affirmative, whether the claimant is not entitled to the reliefs sought. In respect of issue one; counsel submitted that the letter of termination of appointment of the claimant dated 19/12/2014(exhibit CN) clearly quoted Section xiv sub-section 1 of the Condition of Service College of Agriculture, Garkawa thereby bringing the employment of the claimant within the purview of employment with statutory flavor. Counsel referred to the case of Alhassan v A.B.U Zaria (2010) ALL FWLR (Pt. 539). 962 at p. 992 paras. D-E where the court held as follows: Where the conditions for appointment or determination of a contract of service are governed by the provision of a statute, such that a valid determination or appointment is predicated on satisfying such statutory provisions, such contract is said to enjoy statutory protection. The contract is determinable not by the parties but only by the statutory preconditions governing its determination. Also, the case of Oloruntoba-Oju v Abdul-Raiteem (2009) ALL FWLR (Pt. 497), 1 at 42-43, paras G-B where the Supreme Court on the nature of employment with statutory flavor held as follows: Where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made there under, it is said to be a contract protected by statute or in other words, an employment with statutory flavor. The question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. Continuing counsel reproduced part of the termination letter of the 1st and 2nd defendants to the claimant (exhibit CN) as follows: … However, following the outcome of the report of a committee on investigation of alleged financial misappropriation of funds meant for the purchase of Non-academic Staff Union (NASU) Bus, COAG Branch, and other funds of the Union which found you culpable and in line with Staff conditions of Service, College of Agriculture Garkawa, Section xiv sub-section 1 the Governing Council at its 18th Regular meeting held on 18th December, 2014 approved the termination of your appointment with effect from 18th December, 2014 (underlining supplied) The learned counsel argued that a close look at the said Section xiv more particularly xiv (1) relating to verbal and written warning and xiv (I)(1), shows that the 1st and 2nd defendants did not comply with the conditions of service of the employment of the claimant before terminating the claimant’s appointment. Counsel reproduced the said paragraphs of Section xiv as follows: Section xiv (1) with the heading verbal/written warning provides as follows: A member of staff whose work or conduct it unsatisfactory shall be warned first verbally and then in writing by the Dean of School/Head of department/section under intimation to the provost in the case of senior staff and registrar in the case of junior staff. Section xiv (I) provides as follows: Termination of appointment shall usually follow one or more warning stating specifically the reasons and also stating that termination shall follow unless marked improvement is shown … (underling supplied) Counsel submitted that of all the documents tendered and admitted, including queries and warning letters, there is no document before the court to show that the claimant was issued with a warning letter from his Head of Department and also the only warning letter issued to the claimant did not comply with the provision of section xiv sub (1) despite the fact that the provision of Section xiv (1) has made it mandatory. That the word “shall” used in the said section xiv (1) means compulsory. Counsel referred to the case of Onochie v Odogwu (2006) ALL FWLR(Pt. 317)544 at 570, para. A, where the court on the meaning of ‘shall’ in statutes held as follows: The use of the word ‘shall’ in a statute or rules of court makes it mandatory that the rule or provision must be observed. That the evidence elicited from the Dw1 under cross examination confirmed the fact that there was no warning letter issued to the claimant by the claimant’s Head of Department when he was asked as follows: Question: How many warning letters were issued to the claimant? Answer: one warning Question: To the best of your knowledge was the claimant issued any warning letter from his Head of Department? Answer: No. the claimant’s Head of Department refused to issue him a warning letter. Counsel submitted that the position of the law is that a plaintiff must succeed on the strength of his case but he can take advantage of the evidence of the witnesses of the defendant that supports his case. Counsel referred to the case of CAP Plc v Vital Investments Ltd (2006) ALL FWLR (PT. 342) 1502. at pp. Counsel submitted that from the content of the warning letter that is, exhibit DH and the condition of service of the 2nd Defendant, the court can only come to the conclusion that the termination of employment of the claimant by the 1st and 2nd Defendants on the advice of the 3rd is unlawful, null and void. Counsel urged the Court to so hold and resolve the issue in favor of the claimant. In respect of issue two, the learned counsel argued that if the termination of appointment of the claimant is found to be unlawful, null and void, the claimant is entitled to the reliefs sought. Counsel referred to the case of Alhassan v A.B.U Zaria (supra) at 1002, paras. D-F where the court on consequential order to be made where termination of employment with statutory flavor is found to be wrongful thus: In contracts with statutory flavor, unless the contract of employment is properly determined in the manner envisaged by the contract of employment, an order of specific performance or reinstatement will normally be made by the court, meaning that once a finding is made by a trail court that an employment has statutory flavor, and the termination was wrongly made and void, the only consequential order that can follow such finding is the reinstatement of the employee. In order words, where the trial court made a finding that the termination of the employee’s employment was not in accordance with the statutory regulations that governed the employment and thus declared the termination null and void, the only inference of that finding will be that the employment of the employee is deemed to be continuous. An order of reinstatement will therefore be the only logical order to follow such finding (underling supplied) Counsel further referred to the case of C.B.N. v Igwillo (2007) ALL FWLR (PT. 379)1385 at p. 1401, paras. E-F where the Supreme Court on the remedy available to an employee whose employment is statutorily protected when his employment is wrongfully terminated held as follows: Where an employee’s service is protected by statute and his employment is wrongfully terminated, he would be entitled to reinstatement in his office and in addition, damages representing his salaries during the period of his purported dismissal. Counsel urged the Court to resolve this issue in favour of the Claimant and grant the reliefs sought in this case. COURT’S DECISION I have read all the processes filed by the parties in this suit. I have equally reviewed the evidence led by them. The final written addresses of the parties including the reply to the defendants’ final written address of the learned counsel for the claimant and the Reply on points of law of the learned counsel for the 5th and 6th defendants are hereby incorporated into this judgment and further reference shall be made to them, where necessary. In my view, it is only one issue that is in controversy in this case and that is; whether the claimant is entitled to his claims. I shall therefore treat the claims seriatim in the resolution of this case as follows: From the reliefs sought in this case; claim c is for; an order declaring that it is only the 4th Defendant that can discipline the Claimant if he is in any way found wanting as is contained in the Constitution of the 4th Defendant and not the 1st and 2nd Defendants. I shall first of all deal with this claim. In the first place the learned counsel did not refer to the section of the Constitution of the 4th Defendant which empowered the 4th Defendant to the exclusion of the 1st and 2nd defendants, to discipline the claimant if he is found wanting. In any case, the law is that a servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed. In the case of a servant who takes advantage of his position to enrich himself, he is not only accountable to his master (the defendant) but he is liable to instant dismissal by the master as such action will have a negative impact on the defendant. See Boston Deep Sea Fishing and Ice Co v. Ansell (1888) 39 Ch D. The claimant in paragraph 3 of his statement of facts also pleaded the fact that the 1st defendant oversees the appointment and promotions/ or discipline of senior staff of the 2nd defendant. I have no doubt that in the instant case the claimant’s alleged conduct of misappropriation of the funds of the 4th defendant is capable of impacting negatively on the corporate image of the 1st and 2nd defendants, consequently, this claim is bound to fail and it has failed and dismissed. I shall now deal with claim one which is the principal claim in this suit. The claim is for; an order declaring that the termination of the Claimant’s appointment by the 1st and 2nd Defendants via a letter dated 19th December, 2014 is wrongful, unlawful and therefore null and void. The quarrel of the claimant here is primarily based on two grounds as contained in paragraphs 26 and 28 of his statement of facts, the first is that “the 3rd defendant and members of his committee did not properly consider the claimant’s submission and the documents exhibited before them before making their recommendation”. At the risk of repetition, it is important to restate briefly the facts of this case as follows:. 1)The claimant was employed by the 2nd defendant in 2003 following which he became a member of the 4th defendant. 2)He became the chairman of the 4th defendant for a tenure from 2007 to 2011 while the 5th and 6th defendant were the secretary and treasurer at the same period with him. 3) The members of the 4th defendant agreed to buy a bus and contributed money to that effect through direct deductions from their salaries on monthly basis. 4) That a committee was set up to scout for and purchase the said bus and the committee completed its work but the claimant together with the 5th and 6th defendants who were signatories to the account of the 4th defendant did not release any money to the committee and consequently the bus was not purchased. 5) At the end of their tenure a committee was set up by the 1st and 2nd defendants to investigate their activities in relation to the proposed bus they intended to buy which committee indicted three of them and asked them to make refunds of various sum of money. 6) The 5th and 6th defendants refunded the money asked from them to be refunded but the claimant refused following which he interdicted, queried, suspended, summoned before a panel and finally terminated, hence this suit. The question to ask here is what was the submission of the claimant before the committee that they failed to properly consider and again which exhibits did they fail to properly consider. The claimant did not remake his said submissions before this court, if he did, he failed to highlight them. Again, the claimant equally failed to point at the exhibits which he felt could have made the committee to reach a different conclusion from the decision they reached. In view of that, this ground cannot absolve the claimant from liability as found by the committee, I so hold. The second ground is contained in paragraphs 28 of his statement of facts that “the termination of the claimant’s appointment was not done in accordance with the staff regulation governing the conditions of service for Plateau State College of Agriculture, Garkawa otherwise known as “the new conditions of service for staffs.” That is all the pleadings in that regard. And the claimant did not give any further evidence thereof. The relief above relief is a declaratory relief which is equitable in nature. It is trite that he that comes to equity must come with clean hands. I have looked the pleadings of the claimant in this case together with his witness statement on oath; it is very clear that the Claimant suppressed completely the facts of agreement to buy a bus, the contributions made to that effect, the fact that the bus was not eventually bought and did not state what happened to the money. The Court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence, see Bello v. Eweka[1981] SC 101, Motun Wase v. Sorungbe[1988] 5 NWLR (Pt. 92) 90, Okodare v. Adebara[1994] 6 NWLR (Pt. 349) 157, Ofoeze v. Ogugua [1996] 6 NWLR (Pt. 455) 451. and Igbinovia v. UBTH [2000] 8 NWLR (Pt. 667) 53 CA. Therefore, it is incumbent on the party claiming it to satisfy the Court by evidence, not by admission in the pleadings of the defendant or weakness of the case of the defendant as in this case. In this case exhibits DIC and D1F are warning letters to the claimant. They were signed by Audu- Wanri H. B whose designation is registrar and Pam R. Gyang Ag. Registrar. The claimant did not plead nor give any evidence to show his own department and or section. He also did not plead nor give evidence in respect of the department of the authors of the said warning letters. He did not plead nor give any evidence on the person that is his head of department or section, consequently, the warning letter given to the claimant as in exhibits D1C andD1F cannot be vitiated on this ground. The fact that the said warning letters exhibits D1C and D1F did not contain the exert words used in the conditions of service did not diminish their content and or message, I therefore hold that this case is claim is lacking in merit. It is hereby refused. Claims B and D are ancillary claims which are dependent on the success of claim A above, which claim has failed. Consequently, claims B and D shall also fail and they have failed. In sum, this case is hereby dismissed in its entirety. Judgment is entered accordingly. …………………………… Hon. Justice K. I. Amadi, Ph. D (Judge)
