DANJUMA MOMOH -VS- USMAN DANFODIO UNIVERSITY TEACHING

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

BEFORE NONOURABLE JUSTICE K.D.DAMULAK

ON THE 28^TH DAY OF MARCH, 2019.

SUIT NO. NICN/SK/09/2018

BETWEEN

DANJUMA MOMOH …………………..CLAIMANT

AND

USMANU DAN FODIO UNIVERSITY

TEACHING HOSPITAL, SOKOTO ……………………DEFENDANT

REPRESENTANTION

J.E. Ochidi Esq, with Umar Dahiru Esq. for the claimant.

Kelechi D. Ogbonna Esq. with Y.Y.Balarabe Esq, Y.Y. Salau Esq. and A.I Wasiu Esq. for the defendant.

JUDGMENT

INTRODUCTION

This judgment centers on whether the claimant was lawfully dismissed as a higher Executive Officer by the defendant. The claimant filed a complaint against the Defendant on 25/06/2018 accompanied by all the necessary documents as required by the Rules of this Court. The defendant filed its statement of defence and all other required documents on 26/9/2018. The claimant prays for the following;

A DECLARATION that the termination of the appointment of the claimant from the services of defendant as conveyed vide the defendant’s letter to the claimant with reference NO. UDUTH/ADM/PER/SP/2791/VOL.1/45 dated 6^th day of June, 2018 is unconstitutional, unlawful, illegal, null and void and of no effect whatsoever.
A DECLARATION that the investigation/trial of the claimant by the senior staff Appointment, promotion and disciplinary Committee of the Defendant for alleged acts of misconduct as well as the findings of guilt pronounced against the claimant by the said committee is in Committee at the 119^th ordinary Meeting of the said Committee is in flagrant violation of the claimant’s constitutional rights to fair hearing/fair trial under Section 36(4) of the constitution of the Federal Republic of Nigeria 1999 ( as amended ) and as such, same is unconstitutional, unlawful, illegal, null and void and of no effect whatsoever.
A DECLARATION that the purported termination of appointment of the claimant anchored on allegations of commission of criminal offences which the claimant denied by the claimant and in respect of which offences the claimant was never tried nor convicted by any court of competent jurisdiction is unconstitutional , null and void and of no effect whatsoever
A DECLARATION that as the claimant is a person employed as a member of the administrative staff of the Dependant in the senior staff cadre, It is only the Board of the defendant constituted pursuant to the provisions of section 2 of the university teaching hospitals (Reconstitution of Boards etc) Act. Cap. U15 Laws of the Federation of Nigeria 2004 is competent to investigate any act of misconduct against the claimant and Visit the claimant with the appropriate sanctions if found culpable and not the management of the defendant.
A DECLARATION that the findings of guilt and the consequential punishment of termination of appointment meted out against the claimant by the defendant respecting the alleged misconduct of destruction of destruction of official documents leveled against the claimant is in breach of the constitutional right of the claimant to fair hearing as enshrined in sections 36(1), 36 (6) (a) and (b) of the constitution of the Federal Republic of Nigeria 1999 (as amended) as no prior query relating to the said allegation was ever served on the claimant and was never afforded any opportunity to be heard on the said allegation.
An ORDER setting aside forthwith the purported termination of the claimant from the services of the defendant as conveyed vide the defendant’s letter with reference No. UDUTH/ADM/PER/SP/2791/VOL .45 dated the 6^th day of June 2018.
AN OR.DER directing the defendant to forthwith reinstate the claimant to claimant’s position as Higher Executive Officer (Audit) in the defendant’s establishment and be paid all the salaries, emoluments allowances and other perquisites attached to that office or to such other offices or positions the claimant may subsequently be promoted to effective from the date of judgment of this Honourable Court up to the period of the lawful cessation the lawful cessation of the contract of employment of the claimant with the defendant ,(howsoever it may be occasioned).
An ORDER directing the defendant to forthwith pay the claimant all the unpaid salaries and allowances due payable to the claimant effective from the month of January 2018 when the claimant was placed on suspension by the defendant up to the date of the judgment of this Honourable court inclusive of all entitlements and promotions which might have accrued to the claimant during the period of the purported termination or the claimant’s appointment.
An ORDER OF INJUNCTION restraining forth with the defendants, servants, agents and privies from preventing the claimant performing the function of his office or from interfering With the enjoyment of the privileges and benefits attached thereto or from unlawfully disrupting the contract of employment of the claimant with defendant until the claimant attains the statutory age of retirement of 60 Years. .
IN THE ALTERNATIVE to reliefs g, h, and i prayed above, an ORDER of court on the defendant to forthwith pay in bulk to the claimant the full amount of salaries, allowances, emolument and other prerequisite attached to the claimants office which are payable to the claimant for a period of twenty – two years effective from the year 2018 representing the sums of money which the claimant would have earned in the employment of the defendant had the said employment of the claimant ran its full course up to the claimant’s statutory retiring age of sixty Years. .
The cost of this action.

FACTS OF THE CASE

The claimant was offered appointment by the defendant on 1^st day of September 2014 as a higher executive officer (Audit) and confirmed by the defendant on the 1^st day of September 2016, the defendant accused the claimant of forging documents and invoices with the intention of committing fraud which the claimant denied the accusation. The claimant was made to face a disciplinary committee in which he admitted destroying some receipts/invoices admitted by one Nafiu Shehu to be fake after which the claimant was dismissed, thus this suit.

CASE OF THE CLAIMANT

The claimant testified for himself in line with his statement of facts as follows;

That by a letter with reference No. UDUTH/ADM/PER/SP dated the 5^th day if August 2014, the board of the Defendant offered him a tenure appointment as a higher executive officer (Audit) in the internal Audit Department of the defendant. He duly accepted and resumed duties. That by the said letter of offer of appointment, the defendant clearly indicated therein that his appointment with the defendant shall continue to run until he reached the retirement age of 60 and that he would be on probation for 2 years before his appointment would be confirmed. He was on probation for 2 years and sequel to his satisfactory performance, the defendant confirmed his appointment with effect from 1^st of September 2016. He was on CONHESS Salary Grade Level 7 Step 3.

That throughout the period of his employment with the defendant he never received any query, warning, interdiction, suspension or any form of disciplinary action from the defendant until January 2018 when he received a letter of query with reference No. UDUTH/ADM/PER/SP/2791/VOl.1/P.42 dated 17^th January, 2018 from the management of the defendant. That in the said letter of query, the management of the defendant accused him of forging documents and invoices of the chairman ophthalmology revolving fund impress committee with the intention of committing fraud and the defendant suspended him from duty from 17^th day of January 2018 and directed him to explain within 24 hours why disciplinary action should not be taken against him. That he made a written explanation to the said query and that as a follow up to his said written explanation to the said query, he was invited by the management of the defendant vide an invitation letter dated 10^th day of April, 2018 to appear before the senior staff appointment, promotion and disciplinary committee to answer allegations of forging and fraud leveled against him. He duly appeared before the senior staff appointment, promotion and disciplinary committee of the defendant on the 11^th day of April 2018 where he denied the allegations.

The defendant still kept him on suspension from office up till the 6^th day of June 2018 when he received a letter from the defendant with reference No. UDUTH/ADM/PER/SP/2791/VOL.1/45 intimating him that his appointment with the defendant has been terminated with effect from the 1^st June 2018. That in the said letter, the defendant included “destruction of official documents” as one of the offences/misconduct allegedly committed by him that necessitated the termination of his appointment. That at no time was he queried by the defendant on the alleged offence/misconduct of “destruction of official documents” and neither did he make any response to the purported allegation in his written explanation to the query issued to him by the defendant. That the defendant therefore denied him his constitutional right to fair hearing when the defendant decided to punish him in respect of an offence he was never accused of nor was he given an opportunity to defend himself in respect thereof.

That in the said letter of the defendant by which his appointment was terminated, it is stated therein in clear terms that it is the management of the defendant and not the Board of the defendant that approved the said termination of his appointment. That in the said letter of termination of appointment issued by the management of the defendant, the defendant also alleged that he was found guilty of acts of attempted fraud and forgery and that same are also reasons which necessitated the termination of his appointment with the defendant. That the said allegations of attempted fraud, forgery and of destruction of documents made against him are criminal in nature but that at no time was he charged to court and convicted.

That his appointment and or removal from office as a senior staff cadre is regulated or governed by the provisions of section 5(6) and (9) of the university teaching hospital (reconstitution of Board, etc) Act Cap. U15, Laws of the Federation of Nigeria 2004. That while he was in the employment of the defendant, his salary and allowances per each month was in the sum of N95,857.33 (Ninety –Five Thousand , Eight Hundred and fifty –Seven Naira, Thirty Three Kobo) which translates to the sum of N1,150,287.96 (One Million, One Hundred and Fifty Thousand , Two Hundred and Eighty – Seven Naira , Ninety – six Kobo) per annum . That he would have earned a total sum of N25,306 355. 12 for the remaining 22 years if his employment with the defendant had ran its full course up to the statutory retiring age of 60 years but that the said intended earnings have now been aborted by the act of the defendant in unlawfully terminating his appointment abruptly.

Under cross examination, claimant testifies among other things that exhibits DM2 and DM5(confirmation of appointment and termination of appointment) were issued to him by the management of the defendant and exhibit DM1(offer of tenure appointment) was issued to him by the board of management. He knows one Mallam Nafiu Shehu and Sani Abubakar. He was invited to and I appeared before the disciplinary committee to defend himself of the allegation against him. (witness is made to read paragraph 3 of exhibit DM6) Based on exhibit DM6, the issue of fake receipts was before the committee. The receipts I referred to in exhibit DM6 which I tore are different from the forged receipts I returned to Sani. Two sets of receipts were before the committee in issue, fake receipts and forged receipts. The forged receipts are the receipts on which my signature was forged. The fake receipts are those receipts that were presented by Nafiu Shehu but he did not buy the goods. My signature was not forged on the fake receipts. I tore the fake receipts because Nafiu who brought them confessed before Dr Nasiru in my presence that they were fake receipts.

The claimant tendered ten documents in evidence and they were admitted as follows;

EXHIBIT DM1- Offer of tenure appointment dated 05/08/2014.
EXHIBIT DM2- Confirmation of appointment dated 25/10/2016.
EXHIBIT DM3 – Letter of query dated 17/10/2018.
EXHIBIT DM4 – explanation to query dated 18/01/2016.
EXHIBIT DM5- Letter of termination dated 6/6/2018
EXHIBIT DM6- Application seeking redress dated 08/06/2018-
EXHIBIT DM7- Statutory declaration of age dated 226/8/2009
EXHIBITS DM8A to DM8C- Claimant’s pay Slips for the months of January, February and March 2018.
EXHIBIT DM9- Invitation letter to the claimant- dated 10/04/2018.
EXHIBIT DM10- Notification for termination of appointment dated 06/O6/2018.

CASE OF THE DEFENDANT.

Two witnesses testified for the defendant in line with the statement of defence.

DW1, One Binta Umar Kigo, an Assistant Director, Internal Audit Department of the defendant states as follows:

That she told the claimant that she would see the admin officer of the ophthalmology Department and confirm that he signed the voucher. The admin officer Mallam Nafiu confirmed that he made the request due to some financial problems.

That she told the admin officer to write an undertaking never to repeat such thing again which he did, and she promised to see the project manager not to take the case up. That after the verification, she cancelled the Payment voucher and she gave it to the Claimant for reversal. That after some days an authentic payment voucher of the chief medical director for another payment came with similar submission. When she asked the claimant about it he immediately said that his signature on it was forged, she asked him to go and bring the other cancelled payment voucher but he said he had destroyed it. The signature on the payment voucher which the claimant claimed to have been forged was confirmed by all the staff in Audit department to be that of the claimant. That subsequently, the claimant appeared before the senior staff, Appointment, Promotions and Disciplinary Committees and after following all due process, the committee recommended that the management of the defendant should terminate the appointment of the claimant and two (2) others involved.

Under cross examination, DW1 testified that the Voucher and receipts were raised by Nafiu Shehu. Nafiu Shehu owned up that he was the master mind behind the voucher and receipts. When Nafiu Shehu wrote the under taking, I closed the case, cancelled the PV and gave it back to the claimant to take it back for reversal. Another incidence happened in December, 2017 involving three people, 1.Danjuma Momoh, Auditor 2. Nafiu Shehu, Admin Officer and 3. Sani Abubakar, Accountant. The matter was not reported to the police for investigation.

CW2, Adamu Sani, a senior administrative officer of the defendant testified as follows:

That the claimant admitted when he appeared before the committee that he destroyed the documents handed to him by one Hajiya Binta Umar Kigo, Assistant Director Internal Audit. That it was the management of the defendant that approved the claimant’s termination of appointment dated 6^th June, 2018. That the inclusion of “destruction of official document’s was based on the claimants’ admission when he appeared before the committee on 11^th April 2018. That the word “Board of Management” and “Management” are used interchangeably and they mean one and the same. That section 5 (5) and 9 of the University Teaching Hospitals (Reconstruction of Boards etc) Act cap U15, laws of the federation of Nigeria, 2004 did not stipulate that any staff appointment with statutory flavor is immune from disciplinary measures if warranted. That the amount claimed by the claimant is speculative and unfounded.

Under cross examination, this witness testified that Exhibit3, the query, carries the offence of commission of fraud by forging documents and invoices. The offence in exhibit DM5 is attempted fraud, forgery and destruction of official documents. On page 13 of exhibit AS1, the claimant denies that the signature on those receipts are not his own. I am not aware if the claimant was ever charged to court.

The defendant also tendered one document which was admitted in evidence as EXHIBIT AS1- Minutes of the 119^th Ordinary Meeting of Senior staff · Appointments, Promotions and Disciplinary Committee of the defendant held on 11/04/2018.

DEFENDANT COUNSEL FINAL WRITTEN ADDRESS

In his legal argument, learned defendant’s counsel submitted that burden of proof lies squarely on the claimant who asserts the existence of the facts. Section 133 (1) of the Evidence Act and ODUKWE V OGUNBIYI (1998)6SCNJ 10 at 116; ARCHIBONG V ITA (2004) 2 NWLR (Pt. 858) 590 at 595 ; FAGGE V ADAZZAWA (2006) 46 WRN 162 at 185 -186.

Counsel submitted that from the pleading, evidence and documents tendered, particularly exhibits DM3, DM4, DM8, DM10 and ASI , the claimant admitted before the committee, the commission of the offence, of serious gross misconduct as per public service rules 03030 and which the Defendant is empowered to discipline him accordingly. It is settled law that facts admitted need no further proof. See the case of AKPAN Vs UMOH (1999)7sc (Pt.11) 13 at 25 to 26

It is further submitted on behalf of the defendant that claimant’s admission to the destruction and tearing of the said document is admission against interest which has been held in a Plethora of authorities as the best evidence at the disposal of the adversary. See ONYEGWU Vs EBERE (2004)14 NWLR (Pt. 889)p.20 to 39 para F-G.

Counsel further submitted on the 2^nd and 3^rd relief of the claimant that the claimant having failed to prove the 1^st main relief cannot hide under the clothes that he was not afforded fair hearing.

On the 3^rd and 4^th relief of the claimant, counsel submit that since the main reliefs of the claimant woefully failed, the question of asking court to make any ancillary reliefs and making order of cost would not hold water in the circumstance of this suit.

CLAIMANTS COUNSEL FINAL WRITTEN ADDRESS

In his written address, claimant’s counsel submitted in his issue one that the defendant has not in any way responded positively to the facts pleaded by the claimant as in paragraph 22 of the claimant’s statement of claim so the defendant is not denying the fact that the mode of appointment or termination of the appointment of the claimant is governed by the provision of 5(5) and 2 of the university teaching hospital (Reconstitution of Boards, etc) Act cap, U15 laws of the Federation of Nigeria 2004.

Counsel contends that the tenure of employment of the claimant was wrongfully terminated citing the decision of court of Appeal in OGUNDIPE VS NIGERIA TELECOMMUNICATION LIMITED (2006) ALL FWLR (PT 817) 613 AT 631 – 632, OKOMU OIL PALM CO. LTD VS ISERHIENRHIEN (2001) FWLR (PT 45) 679 (2001) 5 NSCQR 802 .

Counsel also submitted for the claimant that in view of the fact that the conditions for the determination of the appointment of the claimant is governed by section 9 of the university teaching hospitals (Reconstruction of Boards, e.t.c) Act Cap. U15, laws of the Federation of Nigeria 2004, the said employment of the claimant is one that is coated with statutory flavor. UDOH VS CIVIL SERVICE COMMISSION AKWA IBOM STATE (2014) ALL FWLR (PT 716) 582 AT 596.

Counsel submitted that contrary to the argument of the defendant, the word “Board” as used in the said Act is not one and the same thing as the words ‘’the Management” of the defendant. That whereas the word “Board” and the words “the University Teaching Hospital Management Board” of the defendant means one and same thing, the said words are not the same as ‘the management’’ of the defendant simpliciter. The Management of the defendant on the other hand are members of staff of the defendant who are employed by the defendant itself.

That by section 9(1) of the said Act, it is the responsibility of the Board of the defendant acting through the Secretary of the Board to issue a query to any member accused of any wrong doing, in the instant case however, the query was issued by the Deputy Director of Administration human resources on behalf of the Director of Administration of the defendant. That neither the said Acting Director of Administration nor the said Director of administration of the defendant are members of the Board of the defendant constituted pursuant to the provision of Section 2 of the enabling statute.

Counsel further submitted that on a careful perusal of the content of the said exhibit DM5 (letter of termination of the claimant) the termination was approved by the management of the defendant and not the Board of management of the defendant.

That the allegation of destruction of official documents made against the claimant by the defendant and which was also used by the defendant to anchor the termination of the claimant’s appointment is unfounded and that the said allegation of the destruction of official documents was smuggled into the case.

That the receipts of AGG Mall which were fraudulently obtained by one Natiu Shehu and which he the claimant destroyed were not official documents.

That it is settled law that no disciplinary committee is competent to adjudicate, on allegations which are criminal in nature. FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) 2 NWLR (PT 106) 652 AT 729; DANIEL VS, FEDERAL REPUBLIC OF NIGERIA (2014) ALL FWLR (PT 735) 319 AT 361.

That a careful perusal of exhibit AS1 will reveal that even serious cases of commission of criminal offences by other members of staff were treated with utmost leniency i.e pages 6 – 7 of exhibit AS1

The summation of the submission of the claimant counsel is that the said appointment of the claimant was not lawfully terminated by the defendant.

Counsel there by urge the court to so hold and resolve issue one in favour of the claimant.

Claimant counsel submitted in his second issue that where the employment of a servant whose contract of service is protected by statute is wrongly terminated, such a servant is entitled to a grant of an order of reinstatement by the Court as a matter of course, in addition to the award of damages representing the salaries of the servant during the period of purported termination of appointment. CENTRAL BANK OF NIGERIA VS IGWILLO (2007) ALL FWLR {PT 379) 1385 AT 1401.

Some detailed portions of the claimants counsel submissions are reserved for reference in the judgment.

ISSUES FOR DETERMINATION

The defendant submitted one issue for determination thus;

Whether from the state of pleadings, documents tendered and evidence led in support thereof, the Plaintiff has proved his claim against the Defendant as required by law to entitle him to the reliefs sought before this Honourable Court.

The claimant on his own part submitted two issues thus;

Whether the appointment of the claimant was lawfully terminated by the defendant regard being had to the provisions of the enabling statute of the defendant i.e. the University Teaching Hospitals (Reconstitution of Boards, etc) Act. Cap. U15 Laws of the Federation of Nigeria 2004.
Whether it is competent of this honourable Court to grant in favour of the claimant the reliefs being claimed in this action by the claimant against the defendant.

The court considers the issues to be the same and the issues formulated by the claimant are adopted as the issues for determination by this Court.

COURT DECISION

The claimant in arguing his issue 1 has asked several questions which the Court shall answer in determining the first issue in this case, both parties have joined issues on these questions and they are;

Whether “management of the defendant” is the same as “management board of the defendant”.

Learned claimants counsel has argued that whereas the word “Board” and the words “the University Teaching Hospital Management Board” of the defendant means one and same thing, the said words are not the same as ‘the management’’ of the defendant simpliciter. That the Board or the Management board of the defendant which is constituted by the President of the Federal Republic of Nigeria pursuant to the provisions of Section 2 of the said Act is made up of several individuals as members. The Management of the defendant on the other hand are members of staff of the defendant who are employed by the defendant itself. The defendants argue that the word management as used by the defendant is used interchangeably with management Board and they mean one and the same thing.

Apart from the claimant counsel’s linguistic finery, I find no legal basis for counsel’s definition of management and his differentiation between “management Board” and “management”, which is the same as saying that the spelling of the word “School” is wrong as it should be spelt “School”; difference being that you should not place the second “o” before the first “o”.

It is a “management Board” or “Board of management”. Its work is management, and a body of people saddled with the management of an organization is referred to as ‘management’. See DOSUNMU &ORS V NNPC &ORS (2013)LPELR-20655(CA

where the court Per SAULAWA, J.C.A held;

On the other hand, the term management as equally couched in Section 230 (1) (q), (r) & (s) (supra),literallyconnotes-

“The act of running and controlling a business or similar organization … The people who run and control a business or similar organization.”

See OXFORD ADVANCED LEARNER’S DICTIONARY OF CURRENT ENGLISH, 6th edition 2001 @ 717.

The definition of the word management in the English Dictionary is “the collective body of those who manage or direct any enterprise or interest; the board of managers.”

It therefore goes without saying, and I agree with the defendant, that the term “management” as used by the defendant is used interchangeably with the term “management Board”. I so hold.

Whether the acts of the Director of Administration were the acts of the management Board.

Claimant’s counsel similarly argued that by Section 9(1) of the said Act, it is the responsibility of the Board of the defendant acting through the Secretary of the Board to issue a query to any member accused of any wrong doing, in the instant case however, the query was issued by the Deputy Director of Administration human resources on behalf of the Director of Administration of the defendant and that neither the said Acting Director of Administration nor the said Director of administration of the defendant are members of the Board of the defendant constituted pursuant to the provision of Section 2 of the enabling statute.

I have read section 2 of the said enabling Act, there is no reason to assume that the said Director of Administration is not a member of the Board in the absence of the instrument of appointment of Board members of the defendant. Moreso, exhibits DM3 and DM5 were all written on behalf of management by the said Director of Administration. They are therefore acts of the management which is the same thing as management Board.

Similarly, claimant’s counsel argued that the said exhibit DM5 (letter of termination of the claimant) was invalid because the termination was approved by

the management of the defendant and not the Board of management of the defendant.

To hold that exhibits DM3 and Exhibit DM5 are not valid because the Director of Administration is not a Management Board member or because the approval was made by management and not Management Board is to contend that the claimant never had a valid appointment or confirmation in the first place. This is so because the claimants appointment letter, exhibit DM1, was signed by the Director of Administration for the Chief Medical Director on behalf of the Management Board. Similarly, the claimant’s confirmation, exhibit DM2 was made by Management and not Management Board, and the letter was signed by the Director of Administration for the Chief Medical Director. This argument does not in any way serve the interest of the claimant.

I find that exhibits DM3 and DM5 were all acts of the management Board of the defendant. I so hold.

Whether the procedure stipulated by the University Teaching Hospitals (Reconstitution of Boards, etc.) Act was followed.

Claimant’s counsel has argued that the dismissal of the claimant did not follow the laid down procedure in section 9 of the Act. Section 9 the University Teaching Hospitals (Reconstitution of Boards, etc.) U15,2004. Provides as follows;

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 his 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 person 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; and

(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.

The complaints of the claimant are that the Director of Administration is not the person to issue the said letters and that the work was that of Management Board, not Management. These arguments have already failed as held above. Given these provisions and the evidence before the court; the claimant was issued a query conveying the accusations of fraud and forgery, he answered the query and was made to appear before a disciplinary panel. Two others, Nafiu Shehu and Sani Abubakar were also before the panel for the same accusations of fraud and forgery. .The claimant denied the accusation of fraud and forgery against him but admitted destroying the documents for which the two others were also before the panel. The defendant punished the claimant for other offences, including the destruction of the said documents. It therefore means that this procedure was followed. I so hold.

The other complaint is that the claimant was not issued any query in respect of destruction of official documents which forms part of the reason for his dismissal. We shall turn to this issue presently.

Whether the defendant needed to issue a fresh query to the claimant and a fresh investigation in respect of destruction of official documents before taking any appropriate measures on the claimant.

Counsel argued on behalf the claimant that Similarly, the allegation of destruction of official document made against the claimant by the defendant and which was also used by the defendant to anchor the termination of the claimant appointment is unfounded. In the first place, the said allegation of misconduct was not included in the query issued by the defendant to the claimant (Exhibit DM3). That the said allegation was not responded to by the claimant in response to the said query (Exhibit DM4). It was only in the course of the committee hearing of the defendant that the said allegation of the destruction of official document was smuggled into the case.

No doubt, the claimant admitted in the course of his testimony before the Court as CW1 that he tore the receipt or invoices which Nafiu Shehu procured from AGG Mall because Nafiu Shehu admitted that the said receipts are not genuine and when Nafiu shehu had owned up to his misdeeds and had written an undertaking before DW1 (Binta Umar Kigo) to the effect that he would not commit such misconduct any longer.

It is to be observed that the pleadings and evidence before the court reveals that the incidence specified in the claimant’s query took place in December 2017 but there was another incidence in November 2017 all involving the claimant, Danjuma Momoh, Auditor 2. Nafiu Shehu, Admin Officer and 3. Sani Abubakar, Accountant. The said Nafiu Shehu and Sani Abubakar were also facing the same disciplinary panel with the claimant as shown on pages 9-11 and 14 -16 of exhibit AS1. It is necessary to take the pain to reproduce portions of the relevant evidence here. The DW1 testified thus;

That sometimes in November, 2017 a payment voucher No 22411 with ID No 17146 was brought from ophthalmology revolving fund with the payee name of Dr Nasir Muhammed, the Project Manager, revolving fund to the tune of N290,750.00 only for verification. That in the course of verifying the payment voucher stated above, she came across some receipt from AGG Mall Mabera which contains some domestic items with the signature of the claimant on it. …. The admin officer Mallam Nafiu confirmed that he made the request due to some financial problems.….That after the verification, we cancelled the Payment voucher and she gave it to the Claimant for reversal. That after some days an authentic payment voucher of the chief medical director for another payment came with similar submission. When she asked the claimant about it he immediately said that his signature on it was forged she asked him to go and bring the other cancelled payment voucher but he said he had destroyed it.

DW2 testified thus;

That the claimant admitted when he appeared before the committee that he destroyed the documents handed to him by one Hajiya Binta Umar Kigo, Assistant Director Internal Audit. … That the inclusion of “destruction of official document’s was based on the claimants’ admission when he appeared before the committee on 11^th April 2018.

This evidence is confirmed by exhibit ADS1 at page 13 paragraph 3, reporting the claimant’s case as follows;

The Officer explained as he narrated in his response to the query and also denied committing any offence, but admitted that he destroyed the documents handed to him by Hajiya Binta after confirmation from Nafi’u Shehu that the receipts attached in the file are not genuine.

The claimant himself confirmed this in exhibit DM6 written by him to the defendant in paragraph 3 thus;

The receipts that I tore were the fake receipts that Nafiu Shehu presented to me for the goods he took from the Department- Ophthalmology and not any government official documents.

Similarly, the claimant further confirmed this when he testified under cross examination thus;

Based on exhibit DM6, the issue of fake receipts was before the committee. The receipts I referred to in exhibit DM6 which I tore are different from the forged receipts I returned to Sani. Two sets of receipts were before the committee in issue, fake receipts and forged receipts. The forged receipts are the receipts on which my signature was forged. The fake receipts are those receipts that were presented by Nafiu Shehu but he did not buy the goods. My signature was not forged on the fake receipts. I tore the fake receipts because Nafiu who brought them confessed before Dr Nasiru in my presence that they were fake receipts.

It is therefore not correct to argue that the issue of the receipts destroyed by the claimant was smuggled into the proceedings of the disciplinary committee. Even though the destruction of those receipts was not specifically mentioned in the claimant’s query, it is reasonably understandable since nobody had reported to the management that the claimant had torn the receipts for which Nafiu Shehu and Sani Abubakar were also facing the same disciplinary panel, such a fact could only have emerged during the proceedings of the panel. In the circumstance, I hold the firm view that the defendant did not need to first issue a fresh query to the claimant and probably initiate a fresh disciplinary proceeding before taking any appropriate action on the claimant.

I agree with the defendant’s counsel that the claimant was given fair hearing. The defendant therefore did not need to issue a fresh query to the claimant and a fresh investigation in respect of destruction of official documents before taking any appropriate measures on the claimant in the circumstance of this case.

Summary dismissal means dismissing an employee immediately without following the normal legal procedures provided there has been fair hearing. See. ONYEKACHI OKEMMIRI V FRN (2015) LPELR-24485(CA) where AGUBE JCA, while defining summary trial said;

Peter – Odili, JSC on his part relied on the definition of “Summary” by the Oxford English Dictionary tenth Edition which means:
“a brief statement of the main points of something.
1. Not including unnecessary details.
2. (of a legal process or judgment) done or made immediately and without following the normal legal procedures.”

See UWAZURUIKE & ORS. V. AG. FEDERATION (2013) LPELR-20392 (SC).

See also MR. SYED QAMAR AHMED v. AHMADU BELLO UNIVERSITY (ABU) & ANOR (2016) LPELR-40261(CA) where the Court held;

In exercising this power, the Law no longer draws any distinction between an ordinary master-servant employment and an employment with statutory flavor with respect to the right of the employer to summarily dismiss an employee for acts of gross misconduct. YUSUF v. UBN LTD (1996) 6 NWLR (Pt.457) 632. It is now settled that an employer can summarily and without any much ado, dismiss an employee in all cases of gross-misconduct provided that the affected employee is given a fair hearing, whether the affected employee is in private employment or statutoryemployment.
ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (supra), (2007) All FWLR (Pt.243) 265, 266, FRANCUS ARINZE V. FBN LTD (2004) 12 NWLR (PT.888) 663.

Claimant’s counsel also argued that the receipts of AGG Mall which were fraudulently obtained by one Nafiu Shehu and which the claimant destroyed were not official documents, and no money of the defendant was lost on the basis of those receipts.

Counsel did not supply any basis for this argument. It is highly erroneous to think that such receipts are not official documents when they were submitted in an official file with a voucher for refund. The fact that they were found to be not genuine does not subtract from the fact that they are in the file and form part of the transactions of the office which makes those receipts or invoices official documents and they were necessary exhibits at the proceedings of the disciplinary panel. It is therefore erroneous to argue that the receipts or invoices were not official documents.

I find that the destruction of those receipts or invoices by the claimant amounted to destruction of official documents. I so hold.

Whether the defendant needed to wait for the claimant to be convicted by a court of law before dismissing him in view of his admission.

It is the submission of learned claimant’s counsel that it is settled law that no disciplinary committee is competent to adjudicate, on allegations which are criminal in nature. FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) 2 NWLR (PT 106) 652 AT 729; DANIEL VS, FEDERAL REPUBLIC OF NIGERIA (2014) ALL FWLR (PT 735) 319 AT 361.

It important to note that the claimant denied the allegation of fraud levied against him but admitted destroying some other documents which were also in issue before the committee.

With respect to the allegation of forgery levied against him, which the claimant denied, I agree with the claimant counsel that it is settled by a line of numerous authorities, that where an employee is accused of a criminal offence, the disciplinary panel cannot find him guilty and punish him there for. Accordingly, with respect to the criminal allegations denied by the claimant, the panel had no power to find the claimant guilty and to punish him.

This however may not be said of the punishment for the offence of destroying official documents, which in this case were required exhibits before the disciplinary panel but which exhibits were admittedly destroyed by the claimant. The position that an employer cannot punish an employee for a criminal offence unless the employee is found guilty by a court of law has since been qualified. This principle is now limited to situations where the allegation is denied by the accused employee. Where the employee admits the crime, the employer can take appropriate disciplinary action against him as what is admitted need no further proof. See the case of UNIVERSITY OF ILORIN & ORS Vs ODULEY (2002) LPELR – 11705 (CA. See also the case of AKPAN V UMOH (1999)75SC (PT 11)13 at 25 Where the supreme court held that ;

“It is trite that what is admitted does not require further proof by evidence whether oral or documentary”.

In FEDERAL UNIVERSITY OF TECHNOLOGY AKURE v. DR R.A. OSEMENAM

(2011) LPELR-4155(CA), the court held as follows;

On the other hand, the issues in the cases of GARBA v. UNIVERSITY OF MAIDUGURI (supra) and FEDERAL CIVIL SERVICE COMMISSION (F.C.S.C) V. LAOYE (supra) are very relevant and applicable to the present case.

The Supreme Court, per NNAMANI, JSC held in GARBA v. UNIVERSITY OF MAIDUGURI (supra) as follows:

“As I indicated earlier the offences for which the appellants were undoubtedly held liable by the Board and the panel included looting, arson, destruction of property and indecent assault. These are offences under the panel code and therefore are triable only by the regular courts of law. Neither the investigating Panel which investigated these serious charges nor the disciplinary Board of the senate which considered its finding is a court of law. Neither of them was competent to adjudicate on matters connected with the rights of the appellants once the allegations intruded crimes”

However, in the case of F.C.S.C. v. LAOYE (supra) the Supreme Court qualified the principle of law set down in previous decisions including GARBA V. UNIVERSITY OF MAIDUGURI (supra) by adding that if the person to be disciplined in respect of allegations of criminal nature accepts liability, the necessity for a trial and conviction by a competent court or tribunal is obviated. In F.C.S.C. v. LAOYE (supra) the Supreme Court held, inter alia as follows:

“The decision in Garba v. University of Maiduguri (1986) 1 NWLR (pt 18) 550 should however not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. … where the person so accused accepts his involvement in the act complained of, no proof of the criminal allegation against him would be required… He could face discipline thereafter… ”

It seems clear to me, therefore, that an employee, whose employment is spiced with statutory anointing, cannot be disciplined by way of dismissal based on allegations bordering on legal criminality without his criminal liability first established by a competent court or tribunal, unless such employee admits liability.

See also JIBRIL V. MIL. ADMIN., KWARA STATE (2007) 3 NWLR (PT.1021) P.357

And A.-G., KWARA STATE V. OJULARI [2007] 1 NWLR (PT.1016) where the court held;

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.

See also TELIAT A. O. SULE v. NIGERIAN COTTON BOARD (1985) LPELR-3124(SC)

(1978) All N.L.R 291; (1985) 6 S.C. 62.

I find that the defendant did not need to wait for the claimant to be convicted by a court of law before dismissing him in view of his admission. See MR. SYED QAMAR AHMED v. AHMADU BELLO UNIVERSITY (ABU) & ANOR supra.

The summation of all the above findings and especially having found that the defendant did not need to issue a fresh query or set up a fresh disciplinary panel on the issue of destruction of public documents by the claimant or wait for a court of law to convict the claimant before taking any disciplinary measures against him, I find that the dismissal of the claimant by the defendant for destruction of public documents was lawful. The claim of the claimant fails and is hereby dismissed.

I make no order as to cost.

……………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN,SOKOTO