IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: May 15, 2019
Suit No: NICN/IB/ 107/2014
Between
Mr. Abiola Aderemi—————- Claimant
And
Oyo State Board of Internal Revenue
Attorney General of Oyo State —————- Defendants
Oyo State Civil Service Commission
Representation
A. A. Momoh for the Claimant
Tayo Aderonmu (Mrs.) and Abu-Oloko O.O. (Mrs.) for the Defendants
COURT’S JUDGMENT
On August 29, 2014 the claimant filed this complaint against the defendants for the following reliefs:
An Order that the purported dismissal of the claimant from the employment of the defendants is unlawful, wrongful, illegal, unwarranted and unjustifiable in law.
A Declaration that the allegations against the claimant being criminal in nature ought to be decided by a Court of law before the defendant can take any action.
An Order reinstating the claimant to his duty position which he occupied before the purported dismissal.
An Order for the payment of all salaries and allowances due to the claimant from the date of the purported dismissal (1st June, 2014) till the date of reinstatement by the Court.
An Order that the defendants be directed to pay the sum of N5,000,000.00 (Five Million Naira) as general damages for the unlawful dismissal of the claimant.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their statement of defence in compliance with the Rules of this Court as well.
The case of the Claimant as Pleaded
The Claimant avers that he was employed on the 6th of October, 2006 and was given a letter of appointment as a staff of the 1st defendant on Grade level 4.On December 18, 2012; he was elevated from the post of Officer Grade Level 4 toGrade Level 5 Officer. He continued that sometimes in January 2014, he was invited by a Disciplinary Committee of the 1st defendant on an allegation of issuance of fake receipts and thathe was alleged to be part of the individuals who perpetrated in the counterfeit receipt proliferation; which he denied vehemently. The claimant avers further that when he attended the 2nd Disciplinary Committee meeting, he informed the Presiding Officers that he knew nothing about the issuance of fake receipts and that he never printed out fake receipts to anyone.
In addition, the claimant explained that on June 3, 2014 he received a letter of dismissal from the 1st defendant, which was back dated to May 1, 2014 even though he was paid his salary for that month of May. Hemaintained that the reason for his dismissal was based on a criminal allegations of fraud and issuance of fake receipts; and so, the 1st defendant was wrong to have dismissed him without due procedure of law, as only a Court of competent jurisdiction can convict him on such criminal allegations.Therefore, he contended that he is not guilty of the alleged crime;hence, his dismissal is wrong since he has not been convicted of any criminal offence in any Court of Law.
The Defendants’ Case as Pleaded
The Defendant’s caseas pleaded is that the claimant was a former employee of the 1st and 3rd defendants and that these two defendants are agencies of Oyo State Government. They aver further that 2nd defendant, the Attorney General and Commissioner for justice in the Oyo State is the number one law officer of Oyo State Government.They went on to aver and confirmed that sometimes in January 2014, the claimant was invited to a Disciplinary Committee of the 1st defendant on an allegation of issuance of fake receipts. They continued that at the Disciplinary Committee meeting, one Mrs. Funmi Roberts, a legal practitioner, who was affected by the fake receipt proliferation, was able to establish that millions of naira from her officewas lost due to the fake receipt proliferation especially in connection with land registration. They continued that it was again established that one Miss Seun Adeleke and one Mr. Olamide who are staff of Mrs. Roberts’ Law Firm had collaborated with some people including the claimant to issue fake receipts to their principal in the course of registration of land titles in the Oyo State Ministry of Lands and Housing.
The defendants went on to aver that at the panel’s proceeding, Mrs. Seun Adeleke the Account Manager of Funmi Roberts & Co. identified Mr. Remi Abiola (the claimant) as the individual who was paid the sum of N50,000.00 (Fifty Thousand Naira) being his own share of the transaction of selling a bank draft worth N2,500,000.00 (Two Million Five Hundred Thousand Naira) to Mr. Abolore Hamzat an auto mechanic. The said bank draft meant to be paid to Oyo State Government’s coffer.
Additionally, the defendants aver that the claimant admitted to having a transaction with the staff of Mrs. Funmi Roberts and Mr. Abolore (the mechanic). In the panel report Mrs. Seun Adeleke stated that she collected the fake receipt from Mr. Remi Abiola and one Peter Otoide an Information Technology staff serving at the Ministry of Lands.They went on to aver that the Claimant had violated Public Service Rules Vol. 1 of 2013 (Section 4 030402(i) for conniving with others to defraud the Oyo State Government and that it was based on the recommendation of the Panel and in compliance with the Oyo State Civil Service Rules that the Claimant was dismissed.To the Defendants; therefore, this suit is frivolous, vexatious and abuse of Court process and that it should be dismissed with substantial cost against the Claimant but in favour of the Defendants.
Claimant’s Reply to the Statement of Defence
In the Claimants reply he re-states that he is denying all the defendants’ allegations against him as pleaded and that the said Miss Seun Adeleke informed the panel that it was Niyi who gave her the fake receipts and not him.The claimant also insisted that he was asked to introduce Miss Seun to Mr. Abolore for a car purchase and nothing more and that as a result he was given the sum of N30, 000 and not N50,000 for the business between them, and also not for the bank drafts.The claimant again insisted that it is not true that he gave anyone fake receipts because he has never done anything to warrant his dismissal without due process. To the claimant, proper investigation was not done in this case before he was dismissed.
During the hearing of the case, the claimant testified as CW1 and tendered 5 documents in evidence as exhibits while the defendants too called one witness as DW.1 and tendered 2 documents in evidence as Exhibits.
Claimant’s Written Arguments
The Claimant’scounsel filed his final written address and formulated therein the following issues for determination of the Court:
Whether Exhibit D1 is an admissible document?
Whether the respondents were legally justified to dismiss the claimant.
On Whether Exhibit D1 Is An Admissible Document?
In arguing his first issue, counsel submitted that the Exhibit D1 which is the Report of the Administrative Panel on the allegation of issuance of fake receipts by the claimant; is a document that emanated from the Ministry of Lands, Housing and Survey of the Oyo State Government; therefore, Exhibit D1 isan act and record of the Act of the Oyo State Government.Therefore, it is a public document under S. 102 of the Evidence Act 2011 and so, it ought to have been certified as required by section 105 of the Evidence Act 2011.Since this Exhibit is not certified, its authenticity and genuineness cannot be presumed and counsel urged the Court to discountenance and reject same in evidence as it unreliable; relying on the cases of FAAN v. West Nig. Ltd [2011] 8NWLR (Pt. 1249) 219, and G & T Invest Ltd v. Witt & Bush Ltd [2011] 8 NWLR (Pt.1250) 500 SC.Counsel concluded that the question of admissibility of a document in accordance with the provisions of the Evidence Act is an issue of Law and not of fact and that it cannot be disposed of without due compliance.
OnWhether the Respondents were Legally Justified to Dismiss the Claimant
Counsel maintained that since Exhibit D1 is not admissible in law in the light of provision of section105 of the Evidence Act, 2011 the defendants have nothing or evidence to support their pleadings against the claimant.Counsel submitted further that from the contents of Exhibits C1-C5 tendered by the claimant, it has been proven that the claimant was an officer under the employment of the defendants. In addition, as approved by the law, the claimant’s employment was confirmed, which means that a contract of employment exist between the claimant and the defendants.
Counsel contended again that since the claimant was dismissed on criminal allegations of forgery and of issuing fake receipts to the public, it is trite law that where the allegation against an employee amounts to a crime, the employer cannot try it, but must refer the matter to a Court; referring to Unilorin v. Oluwadare [2003] FWLR (Pt. 147).
To counsel, a disciplinary measure against a civil servant is an internal affair of the department or ministry involved and that when the measure taken relates to a crime alleged to be committed by the civil servant, it ceases to be the internal affairs of that department or ministry, citing the case of Yesufu Amaudu Garba&Ors v. The University of Maiduguri [1986] INSCC P.245, where the Court held that when the misconduct alleged involves crimes against the State, it is no longer a matter of internal discipline but a matter for a court/tribunal vested with judicial power to try such offence. It is only after conviction by a proper court that the defendant can proceed to exercise their disciplinary powers and to expel the students if they so wish.
The Claimant’s counsel maintained that the department of the Board of internal Revenue of Oyo State does not exercise the requisite judicial powers, nor are they vested with judicial authority to dismiss the applicant from his lawful employment based on a criminal allegation. He insisted that the Supreme Court in Yesufu Amadu Garba & Ors v. University of Maiduguri supra held that the disciplinary committee’s action was a nullity and that such exercise of judicial powers denies one of the rights to fair hearing; therefore, the purported trial of the claimant carried out by a committee of the department of the Board of Internal Revenue is nullity. He prayed the Court for an order of reinstatement and for payment of salaries and allowances due to the claimant as a result of his wrongful dismissal since June 2014.
The counsel’s counselargued that the contract of employment of the claimant is with statutory backing and so, his reinstatement can be ordered; relying on the case of Idoniboye v. NNPC[2003] FWLR (Pt. 146) 959.Counsel went on to argue that the claimant has incurred liabilities such as incidental costs in caring for his family and his inability to feed and cater for his family and that the claimant’s children have been unable to go to school due to the stop in the payment of his salary and that this is a direct consequence of his illegal dismissal by the defendants.Therefore,the claimant is entitled to damages and urged the Court to so hold.
The Defendants’ Written Arguments
The defendants’ counsel filed his final written address too and formulated the following issues for determination of the Court:
Whether the claimant is entitled to any of the claims as endorsed on his Writ of Summons.
Whether the Claimant is entitled to the sum of Five Million Naira or any money at all from the Defendants.
Arguing issue one ofwhether the claimant is entitled to any of the claims as endorsed on the writ; the defendants’ counsel contended that at the sitting of the Disciplinary Panel, an alleged co-conspirator with the claimant; by name Miss Seun Adeleke, informed the Panel that it was one, Mr. Abolore who happens to be the Claimant’s mechanic that was the one that bought the bank draft meant for the Oyo State Government and that the claimant was part of the transaction. To counsel, the relevant point to make here is that the claimant was implicated in having being a part of the transaction meant to defraud the defendants of their revenue, which is a flagrant violation of the Oyo State Public Service Rules Volume 1 – Exhibit D2.
The Counsel further contended that the proper procedure for the discipline and sanction of erring officers, as stipulated in the Oyo State Public Service Rules Volume 1 inExhibit D.2was followed by the defendants in dismissing the claimant.She explained further that at the sitting of the Administrative Panel in question, the claimant denied any wrongdoing, but upon further interrogation, he admitted that he was facing a criminal charge in Court and that he was on bail.Therefore, the counsel contended that the Panel recommended the claimant’s dismissal in its report in accordance with the provision of Oyo State Public Service Rules volume 1 – Exhibit D.2.
In essence, the defendants’ counsel submitted that one of the claimant’s reliefs before the Court is for “a declaration that the allegations against him, being criminal in nature ought to be decided by a Court of law first before the Defendants can take any action.” However, in light of Rule 030411 of Oyo State Public Service Rules Volume 1 – Exhibit D2 before this Honourable Court, it is clearly stated that the pendency or otherwise of criminal proceedings shall not prevent disciplinary action being taken against an officer.The position of the defendants’ counsel is that this relief being sought by the claimant cannot succeed in line with the provision of Exhibit D2. Therefore, he urged this Court to uphold the defendants’ argument.
Arguing issue two of whether the claimant is entitled to the sum of Five Million Naira or any money at all from the defendants, counsel submitted that an employee who is guilty of gross misconduct in his capacity as an employee may be summarily dismissed without notice; this can be before the expiration of a fixed period of employment, relying on the case of Nigeria Deposit Insurance Corporation v. Mr. Obende [2002] FWLR (Pt. 116) 921 @ 841& 943.She went on thatif the claimant had continued in the employment of the 1st Defendant, he would not be entitled to the sum of N5,000,000.00 (Five Million Naira)as being sought by him since Exhibit C1 does not stipulate the length of notice the claimant is entitled to before his appointment is terminated.Therefore, counsel argued that what the claimant would be entitled to claim as damages is what he would have earned within a reasonable period, not what he would have earned if he retired. He supported this argument with the following cases: NITEL Plc. v. Ocholi [2001] FWLR (Pt. 74) S54 @ 286, 290 and Gateway Bank of the Nig. Plc.v. Abosede [2001] FWLR (Pt. 79) 1316 @ 1337.
COURT’S DECISION
I have read through the facts of this case as pleaded and argued by both parties together with the cited authorities of counsel to the parties. From all of these I am of the considered view that three issues call for this Court’s resolution between the parties. They are:
i. Whether or not Document D1 is admissible in Law.
ii. Whether or not the defendants legally and properly dismissed the claimant
iii. Whether or not the claimant is entitled to the reliefs he is seeking for.
On whether Document D1 is an admissible document
Counsel to the claimant contended that becauseDocument D1 is a public document under Section 102 of the Evidence Act, 2011; it requires certification under section 105 of the Evidence Act, 2011 and that the failure of the defendant to have same certified means that the authenticity and genuity of Document D.1 cannot be presumed.Counsel urged the Court to discontinuance the report as unreliable.
Document D1 is the Report of the Administrative Panel of Enquiry on the Allegation of Issuance of Fake Receipts in lieu of the Original receipts for payment made into the Account of the Oyo State Government in the Ministry of Lands, Housing and Survey and it is at pages 58 to 70 of the record. It is conceded that Document D.1 is a Public Document within the provision of section 102(a) (ii) of the Evidence Act, 2011 and that it is required to be certified by the provision of sections 104 and 105 of the Evidence Act, 2011 before the Court can rely on it.
However, this report was duly and properly signed by all the members of the Panel, see pages 1 and the 12 of the Report at pages 59 and 70 of the Court’s record. From the claimant’s pleadingsand evidence as contained in the statement of facts and reply; together with his written statement on oath, it is not the case of the claimant that Document D.1, the Reportis not authentic or genuine and no evidence was given by the claimant contradicting the authenticity of the Report. It is trite that the address of the claimant’s counsel that the failure of having Exhibit D1 certified means that the authenticity and genuity of Exhibit D1 cannot being presumed; cannot be sustained as the said address, no matter how brilliant cannot take the place of evidence; neither is any counsel allowed to give evidence in the case that he is prosecuting in Court. See the case of Unilorin v. Oluwadare [2003] 3 NWLR (Pt. 808) 557 in, which it was held that address of counsel, however brilliant, cannot take the place of evidence particularly where there is no evidence in support of the submission. See also UBN Plc. & anor v. Ayodare & Sons (Nig.) [2007] All FWLR (Pt. 383)1 at 42 paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 1623. Since it is not case of the claimant that authenticity of Document D.1 was in doubt. I find and Hold that the claimant’s counsel cannot raise that issue in his address because his said address cannot take the place of the claimant’s pleadings and evidence. I again hold that Document D.1 was rightly admitted in Evidence and it will be relied on in this Judgment.
Furthermore, in situations like in the instant case, the provisions ofsection 12(2)(b) NIC Act, 2006 allows this Court to depart from the provision of the Evidence Act in the interest of justice. Consequently, I find and hold thatthe non-certification of the Report, Document D.1 is cured by the provision of section 12(2)(b) NIC Act, 2006; since no harm is done to either of the parties by its non-certification.
What is the nature of the claimant’s employment with the defendants?
It is a known fact that an employment contract is an agreement or contract between the employer and its employee, in which terms and conditions of the contract of employment are provided. Therefore, an employee who complains that he was wrongly terminated has the onus to place before the court, the terms and conditions of his contract of employment and to also prove the way and manner those terms and conditions were breached by the employer; see West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-190 paragraphs D-A. This principle of law reemphasizes the trite law that the right, duties and obligations of the parties to a contract must be determined by the Court based on the terms and conditions governing the employment relationship between the parties.
In Alabidun v. President of the Federal Republic of Nigeria & Anor [2015] 57 NWLR (Pt. 197) 567 at 637 to 628, paragraphs G-G, this Courtheld that where an employee’s employment is one with statutory flavour, the employee challenging his termination or dismissal must state in his pleadings that his employment was with statutory flavour.
In the instant case, there is nowhere in the claimant’s pleadings where it is stated that the claimant’s employment is with statutory flavour. The position of the law is that, the fact that an employer is the creation of a statute does not elevate all its employees to the status of having employment with statutory flavour. In order to have that status (an employment with statutory flavour), the claimant is required to prove before the Court some pre-conditions in any statute or Rulesupon, which the validity of his appointment or its determination is predicated; see Alabidun v. President of the Federal Republic of Nigeria & Anor (Supra) at 629 paragraphs B-H. The claimant did not cite any law or rule that protects his employment with the defendants. In other words; the claimant has failed to establish that his employment with the defendants has statutory flavour. Consequently, I find and hold that the claimant’s employment with the defendants is not with statutory flavour.
On what governs the relationship between the claimant and the defendants
I have held above that the claimant’s employment is not one with statutory flavour; therefore, the employment relationship between the parties is a private employment otherwise known as master and servant relationship. Such relationship is strictly governed by the terms and conditions of the said contract freely entered into by the parties and the rights, duties and obligations of the parties are always determined from the terms and conditions of employment in question. In order to establish his case before the Court, the claimant testified on oath and tendered 5 documents in evidence as exhibits. The documents are:
Letter of appointment – as Document C.1
Confirmation of appointment – as Document C.2
Letter of promotion – as Document C.3
Letter of dismissal – as Document C.4
Letter of suspension – as Document C.5
The defendants also called one witness as DW.1 and tendered 2 documents as exhibits.The documents are:
Report of the Administrative panel of Enquiry – as Document D.1
Oyo state public service rules volume 1 – as Document D.2
In paragraph 7 of the Statement of Defence, the defendants pleaded that the claimant violated the Public Service Rules and exhibited the Public Service Rules volume.1 as Document D.2 in this case; it is at pages 71 to 137 of the record. From all these documents relied on by the parties; I find and hold that the rights, duties, obligations and liabilities of parties are contained in the claimant’s Letter of appointment – Document C.1, his letter of Confirmation of appointment – Document C.2 and the Oyo State Public Service Rules Volume 1 – Document D.2 respectively in this case.
The Law is that in any employment relationship,the contractual rights, duties and obligationsof the parties are determined by the Court from the terms and conditions of the contract of service; which in this case are Documents C.1, C.2 and D.2 in this case. See the case of Odiase v. Auchi Polytechnic, Auchi [2015]60 NLLR (Pt. 208)1 CA at 23-24 paragraphs F-A. I further hold that the claimant stands or falls upon his own evidence and not upon the weakness of the defence, as the claimant has the duty to prove his case to the satisfaction of the Court. See West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt 187) 165 at 189-At 199 paragraphs C-E. See also, see the cases of Idehen v. Registered Trustees Ikoyi Club 1938 [2014] 45 NLLR (Pt. 145) 558, Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083 and the provisions of section 137(1) of the EvidenceAct.
On Whether the Claimant Needs to be Prosecuted &Convicted by Court On The alleged Crime Against Him Before the Defendants can Discipline Him
From his pleadings in paragraphs 20, 21, 22, 23, 24, and 25 of the Statement of Facts and in his witness’ written Statement on Oath before the court, the case of the claimant is that the 1stdefendant was wrong to have dismissed him without the Court first convicting or finding him guilty of the allege crimes. To the claimant, since he has not been so found guilty of the said alleged crimes by a court of competent jurisdiction, his dismissal by the 1st defendant is wrong and improper.
The claimant did not refer to any part of the terms or conditions of his employment or any other rules being breached by the defendants by so dismissing him.
However, in Document D.2; the Oyo State Public Service Rules Vol. 1, 2013 particularly Rule 030411 (a), (i) of Document D.2, it is stated that:
Nothing shall prevent disciplinary action being taken or continued against an officer whether or not;
Criminal proceedings have been instituted with respect to such a person in any court of law in Nigeria or elsewhere or are about to be instituted or are contemplated.
With the above reproduced provision in Document D.2, the defendants do not need to wait for prosecution of any alleged criminal offence against an erring employee before taking out disciplinary action against him. Furthermore, in the present dispensation of our labour law, it is no longer the practice that where an employee commits an act of gross-misconduct against his employer which acts also constitute criminal offence under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal office before proceeding to discipline the employee under the contract of service or employment. In other words, it is no longer necessary for a defendant or an employer to wait for the prosecution of a claimant or an employee for any alleged criminal offence disclosed against him in his various act of misconduct, before taking disciplinary action him by appropriately dismissing him as an example; see the case of Alosius v. Diamond Bank Plc. [2015] 58 NLLR (Pt. 199) 92 at 137 paragraphs B-E.
Consequently, I find and hold that the defendants need not wait for the outcome of any criminal proceedings before taking disciplinary action against the claimant on his alleged misconduct in this case.
On Whether the defendants Properly Dismissed the Claimant
Document C.4 before the Court is the claimant’s letter of dismissal and it is dated 3rd of June 2014 but the dismissal is with effect from 1st May, 2014; see page 15 of the Court’s record. The reason given by the defendants for dismissing the claimant was that the claimant was found culpable of the allegation of fraud and forgery leveled against him.And so, the defendants dismissed the claimant from their service in line with of the provisions of section 55 (a) of the Public Service Commission Regulation of 1978.
The law is that where an employer gives reason for terminating or dismissing the employee (as stated in document C.4 in the instant case), a duty is placed on the employer to justify the stated reason for the dismissal; see the cases of Atoki v. EcoBank Nigeria Plc. [2014] 47 NLLR 33 at 125, paragraphs B-H. It means that, in the circumstance of the case; the burden of proof in this case now shifts on the defendants to justify the reason they gave for the dismissal of the claimant in Document C.4. The sub question to determine now is whether the Defendants have justified the reason they gave for dismissing the claimant in this case.
In paragraphs 7 and 8 of the Statement of Defence, the defendantspleaded that the Claimant had violated Public Service Rules Vol. 1 of 2013 (Section 4 030402(i) by conniving with others to defraud Oyo State Government and that it was based on the recommendation of their Panel of Enquiry, in addition to their compliance with the Oyo State Civil Service Rules that theydismissed Claimant; relying also on the contents of theirDocuments D.1 and D.2. Document D.1 is the Report of the Administrative Panel of Enquiry on the Allegation of Issuance of Fake Receipts in lieu of the Original receipts for payment made into the Account of the Oyo State Government in the Ministry of Lands, Housing and Survey; see pages at 58 to 70 of the record andDocument D.2 is a copyof the Oyo State Public Service Rules; it is at pages 71 to 137 of the record.
Section 4 of Document D.2 is on serious Misconduct, Rule 030402 (i) of Document D. 2 list the offence of “unauthorized disclosure of official information” as a serious misconduct for dismissal; see page 97 of the Court’s record. Nonetheless, the claimant was not dismissed for the misconduct of “unauthorized disclosure of official information” but he was dismissed for being found culpable of the allegation of ‘fraud and forgery’in Document C.4; see page 15 again. As a matter of fact, ‘fraud and forgery’ is not listed as a serious misconduct among the 23 offences so listed for which the defendants’ employees can be dismissed; neither did the defendants’ counsel argue that the allegation of fraud and forgery for which the claimant was dismissedis an act unbecoming of a public officer under paragraph (w) of Rule 030402, section 4 in Document C4.
In addition, it is to be noted that both Document C.5, the letter of suspension and Document C.4, the letter of dismissal of the claimant were written in line with the provisions of sections 46(2) and 55(1) of the Public Service Commission Regulations of 1978 respectively, yet the said Public Service Commission Regulation of 1978 was not exhibited by the defendantswho relied on these Regulations for dismissing the claimant.
Again, Rules 030403 of Document D 2 states thatthe Disciplinary procedure for serious misconduct shall be in accordance with the Rules 030302 to 030306. The defendants, who had the burden of justifying the claimant’s dismissal and who had the duty of satisfying the Court that they complied with Rules 030302 to 030306 of Document D.2 in dismissing the claimant failed to satisfy this condition.
Additionally, the letter of dismissal, Document C.4 is dated 3rd June, 2014 but the dismissal in question was to take effect from 1st May, 2014; see paragraph 2 of Document C.4 at page 15 of the record. It is trite that dismissal cannot be retrospective. For instance, in the case of Olumide Seye Otusote v. National Union of Hotels and Personal Services Workers Unreported Suit No: NICN/LA/126/2014 delivered on October 9, 2018 by Hon. Justice B. B. Kanyip, NICN, Lagos Division; his Lordship held thus:
To start with, in Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited Unreported Suit No. NICN/LA/532/2013 the judgment of which was delivered on July 1, 2015, this Court referred to Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC as holding that an employer cannot dismiss or terminate his employee’s employment with retrospective effect. This Court went on to hold that “like dismissal and termination, suspension can be with immediate effect but certainly cannot be retrospective”. What this authority signifies is that Exhibit C2/D4 or even Exhibit C17/D5, both of which backdated the claimant’s termination/dismissal to 13th August 2010, cannot do so. On this score alone, the claimant’s termination/dismissal is wrong and invalid.”
Based on my findings that the defendants dismissed the claimant for the offence he did not commit while the offence for which he was investigated is not listed in the terms and conditions of his employment neither did counsel to the defendants contend that the said investigated offence is one of those covered by the rules and also because the defendants dismissed the claimant with retrospective effect contrary to the trite law; I hold that the dismissal of the claimant by the defendants is wrongful and it is accordingly set aside.
On Whether the claimant can be re-instated in the circumstance of this case
Reinstatement has been defined as “putting the specific person back in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his appointment; see Effiong v. Ebong [2006] 18 NWLR (Pt. 1010) 109 .
I have held above that the employment of the claimant with the defendants was not with statutory flavour. Thus, insuch relationship, a willing servant cannot be foisted on an unwilling master;see the case of Union bank of Nigeria Plc. v Emmanuel Aderewaju Soares [2012] 29 NLLR (Pt. 84) 329. Therefore, even though the Court has held that the claimant’s dismissal is wrongful, it will not order his reinstatement to his former office with the defendants. The wrongful dismissal of the claimant; notwithstanding, the said dismissal evince the intention of the defendants that they are no longer interested in continuing their employment relationship with the claimant.Consequently, I hold that the claimant’s employment with the defendants wasdetermined by termination with effect from June 3, 2014 when his letter of improper dismissal was written. I further hold that the claimant is to be paid his terminal benefits in accordance with the terms and conditions of his employment.
On the payment of N5 million as general damages for the unlawful dismissal
The Law is that General Damages are awarded at the discretion of the Court. However, the claimant has not proved this claim to the satisfaction of this Court at all. In the circumstance, I am not inclined to award any general damage for the claimant and against the defendants and I so hold. This claim fails and it is accordingly dismissed.
On the whole, I hold and order as follows:
I hold that Document D.1 in this case; the Report of the Administrative Panel of Enquiry is admissible and that it was rightly admitted in evidence.
I hold that the employment of the claimant with the defendants was not with statutory flavour.
I hold that the defendants need not wait for the outcome of any criminal proceedings from court before taking disciplinary action against the claimant on his alleged misconduct in this case.
I hold that the dismissal of the claimant by the defendants is wrongful.
I hold that the claimant is not entitled to be re-instated because his employment was not laced with statutory flavour.
I hold that the wrongful dismissal of the claimant evince the intention of the defendants not to continue with the employment relationship with him.
I hold in the circumstance, that the employment relationship between the parties was determined by termination with effect from June 3, 2014 when the letter of wrongful dismissal was written.
I hold that the claimant is to be paid his terminal benefits in accordance with the terms and conditions of his employment with the defendants.
I hold that the claimant is not entitled to general damages against the defendants. This claim has failed and it is accordingly dismissed.
Judgment is entered accordingly. I make no order as to cost.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
