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National Industrial Court

MRS FLORENCE MODUPE FAPOHUNDA VS EKITI STATE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATE:  16TH JANUARY, 2019                 

 SUIT NO. NICN/AK/28/2014

BETWEEN

MRS FLORENCE MODUPE FAPOHUNDA   

CLAIMANT

AND

  1. EKITI STATE UNIVERSITY
  2. THE COUNCIL OF EKITI STATE UNIVERSITY

DEFENDANTS

 

REPRESENTATION

Abayomi Ojo with him are Bode Akinyemi, Ajibola Kayode, Adeola Kayode, Felix Ayeni  for the claimant

Adeola Omotunde with him are Olukayode Oloyede and O.J Olujimi for the defendants

 

JUDGMENT

 

The claimant was appointed as the Bursar of the defendant vide a letter of 30th March, 2001.That by the institution’s law, she was to hold the office from the time of her appointment till her retirement age but the law was amended in 2008 which reduced the term to a period of 5 years subject to a re-appointment for another period of 5 years. That she left office as Bursar after 10 years and while awaiting direction in respect of her new posting, she received an internal memo dated 18th August, 2011 of a claim by UBA Plc that Call A/C TD 053600010067 with a sum ofN157,375,000 does not exist. She stated that the existence of three (3) Call deposit accounts (Call A/C TD 05360010067; A/C TD 053600010080 and A/C TD 053600010097) of the defendants were confirmed by the bank by a letter of 18th March, 2011 addressed to the institution and that the bank paid accumulated interest on the call deposits for the year ended December, 2010 by a covering letter dated 18thApril, 2011. That her enquiries revealed that the bank official fraudulently opened a current Account No. 0536004000012 in the name of the institution forging her and the Vice Chancellor’s signatures. She responded to Police invitation at Ado Ekiti on 17th October, 2011, and was charged before Ado Ekiti Magistrates Court with the offences of forgery and stealing and was subsequently charged before Ado-Ekiti High Court for same offences, the charges which were struck out by both Courts. She learnt that UBA refunded N131, 000,000.00 fraudulently converted by it to the defendant with accrued interest. That while awaiting a response to her letter of demand for payment of all benefits due to her as a former Bursar, she was asked by the defendants to proceed on retirement from 1stApril, 2014 with 3 months salary in lieu of notice.

She stated that she was not paid her estacode for her overseas leave in 2011 and her salaries for October, 2011 and April 2012. That as at the time of her unlawful retirement, she was on Bursar consolidated salary of N6, 517,980.36 and that her 7 years remaining in her years of service from April, 2014 to September, 2021 is N48, 884,852.07. The claimant whereof claimed against the defendants the following reliefs:

  1. A Declaration that the claimant’s compulsory retirement by the defendants on 1st April, 2014 vide the defendants’ letter dated 28th March, 2014 is illegal, unlawful and ultra vires the defendant.
  2. An Order setting aside the defendants’ letter of retirement dated 28th March, 2014 for being unlawful, illegal and ultra vires.
  3. An Order reinstating the claimant into her employment as a staff of the defendants’ University.

ALTERNATIVELY:

  1. A Declaration that the claimant having transferred her service to the defendants’ University is entitled to her full pension and other retirement benefits as a Bursar of the University.
  2. An Order directing the defendants to pay to the claimant all her pension, gratuity and other retirement benefits from the time she joined the public service till her date of retirement calculated at:
  3. Gratuity: 300% of annual total emolument which is N18,060,489.00 (Eighteen Million and Sixty Thousand Four Hundred and Eight Nine Naira).
  4.   Monthly pension: 100% of monthly emolument/salary which is N543,165.03 (Five Hundred and Forty Three Thousand, One Hundred and Sixty Five Naira and Three kobo).
  5. An Order directing the defendants to pay to the claimant the sum of N48,884,852.07 (Forty Eight Million, Eight Hundred and Eighty Four Thousand, Eight Hundred and Fifty Two Naira and Seven kobo) being salaries accruable to the claimant from 1st April, 2014 to 30th of September, 2021
  6. N10,000,000.00 (Ten Million Naira) only as general damages for the unlawful retirement of the claimant by the defendants on 1stApril, 2014 vide the defendants’ letter of 28thMarch, 2014.

The defendants admitted that the claimant was appointed as a Bursar but that the appointment is not until her retirement and not static as she can be assigned other duties considered necessary and expedient. They averred that the bank transaction leading to call A/C TD 05360010067 with N157,375,000.00 was made by the claimant during her tenure as Bursar and that the suspension of the claimant was requested for by the Commissioner of Police of Ado-Ekiti vide a letter 4th November, 2011. They continued that the cases before the Magistrates and High Court were struck out against the claimant not because she was not connected with the fraud but of the intervention of the defendants. They also averred that the request for payment of claimant’s benefits was refused vide internal memorandum of 24th June, 2011 and letter dated 23rdAugust, 2011 addressed to her and that the claimant was queried for embarking on a Ph.D program which the defendants did not approve for her. That she was asked to proceed on terminal leave when her answer to the said query was not satisfied. Furthermore, defendants posited that the claimant and former Vice Chancellor, Prof. Dipo Kolawole and others were also queried for opening a secret account No: 1013966817 with UBA, UNAD branch, Ado-Ekiti where a sum of N447,788,644.50 was lodged without the approval of the 1st defendant. Also, that another query vide a letter of 7th December, 2011 was raised on the illegal transfer of N150,000.00 from IGR Account No: 0536030000026 to secret Account No. 05360040000121 at the same bank by the claimant and others.

That the retirement of the claimant was not a culmination of the various acts of the defendants to humiliate her but her insubordination and willful disobedience to constituted authority. It is also stated that she is not entitled to estacode for her overseas leave in 2011, that her salaries for the months of October, 2011 and April, 2012 were not stopped. That the filing of charges against her was the discretion of the Police, that sabbatical was approved for her in 2007 but she refused to go and that the schedule of her new duty cannot be accommodated in year 2012. According to the defendants, claimant’s oversea leave for 2011 was paid to her when the fund was available. Finally, that claimant is neither entitled to Bursar’s nor the consolidated salary from April, 2014 – September, 2021 and that her entitlements had been calculated and stated in the letter of 28th March, 2014.

During trial, the claimant testified for herself as CW, she adopted her sworn deposition as her evidence in the case and frontloaded some documents which were admitted and marked as Exhibits F-F3. The defendants also adopted their statement on oath deposed to by one Agbadaola O.M dated the 24th of May, 2018 as his evidence in the case. He tendered some document which were admitted and marked as Exhibits A-A12.

In compliance with the rules of this Court, parties were directed to file their final written addresses. The defendants failed and or neglected to file their written address inspite of ample opportunities given to them. The claimant filed her final written address on 4th July, 2018 and distilled the following issues for determination:

  1. Whether the compulsory retirement of the claimant by the defendants vide Exhibit F2 dated 28thMarch, 2014 is regular and lawful.
  2. If the Court holds that the retirement of the claimant is irregular and unlawful, whether the claimant is entitled to the reliefs sought.

The claimant’s argument on issue one, is that her appointment is statutory as such, she is invested with a higher status and legal protection much more than the ordinary one of master and servant, therefore, the provision of the statute must be complied with strictly in determining her appointment. The authorities of PHCN v. Offoelo [2013] 4 NWLR (Pt. 1344) pg. 380; and Oforishe v. N.G.C Ltd [2018] 2 NWLR (Pt. 1602) pg 35 @ 53 were referred to. The Court is urged to hold that the claimant’s retirement being not in compliance with the provision of the University of Ado-Ekiti Law No. 5 of 2008 is irregular and unlawful and therefore ultra vires the defendants. It is also argued that the defendants failed to establish issuance of query as claimed to the claimant, the failure which contradict Sections 131 and 133 of the Evidence Act.

On issue two, the claimant contended while relying on Section 13 of the Pension Reform Act Cap. P4 laws of the Federation of Nigeria, that she is entitled to Pension and Gratuity from the defendants despite the transfer of her service. She also posited that her employment being one of statutory flavour, the Court could reinstate her to her employment. Reliance was placed on the case of Shitta-Bey v. Public Service Commission 1 SC 46. She urged the Court to find in her favour and grant all the reliefs as contained in the writ of summons.

After a careful consideration of the facts of the case and the defence thereof; the accompanying processes, the documents tendered in evidence as well as the oral evidence of the witnesses and written submissions of learned counsel for the claimant. It is in my humble view that the sole issue that would best determine this case is

Whether or not the claimant has proven her case as to entitle her to the reliefs sought?

It is not in contention that the claimant’s employment is one with higher status than an ordinary master servant, in other words it is an employment clothed with statutory flavor. The determination of which as firmly established in plethora of cases a person holding that office or is in that employment enjoys a special status over and above the ordinary master/ servant relationship, in order to discipline such a person, the procedure laid down in the relevant, statute or regulation must be complied with strictly. It is equally noteworthy that parties are ad idem as to the position of the claimant as a Bursar of the 1st defendant before her compulsory retirement. Now, the areas of contention requiring this Court’s consideration and decision are as regard claimant’s compulsory retirement and entitlements. To the claimant, her compulsory retirement by the defendants on 1st April, 2014 vide the defendants’ letter dated 28th March, 2014 is illegal, unlawful and ultra vires the defendants. The defendants in response stated that the claimant’s compulsory retirement was a culmination of various act of insubordination, arrogance and willful disobedience to constituted authority.

In labour jurisprudence, the law is trite that where an employee alleges wrongful termination/dismissal of the employment by the employer, the onus lies on him/her, in law to prove that the termination/dismissal of his/her appointment was wrongful/unlawful in order to succeed in the claims he makes against the employer. See the cases of Union Bank v. Salaudeen [2017] LPELR- 43415; Mighty Plastic Industries Limited v. Okeke [2016] LPELR-41034, NRW Industries Limited v. Akingbulugbe [2011] 11 NWLR (Pt. 1257) CA, Nitel Plc v. Akwa [2006] 2 NWLR (Pt.964) 391;  Daodu v.  U.B.A. Plc. [2004] 9 NWLR (Pt.878)276; Okomu Oil Palm Co. Ltd v. Iserhienrhien[2001]21 WRN, 161.  The Claimant in proof of this has placed before the Court Exhibits F and F4 which are her letter of appointment and the University of Ado-Ekiti law No 5 of 2008 Ekiti State of Nigeria. These two documents regulates the claimant’s employment. A germane question to answer here is, do the defendants have a right to compulsorily retire the claimant without recourse to provision of her condition of employment for doing so as stated in these two documents? The law is long settled in several case law authorities as in Shell Pet. Dev. Co (Nig) Ltd v Henri E. OMU [1998] NWLR (Pt. 567) 672; that an employer has unfettered powers to discipline its employee according to and in conformity with the terms and conditions, rules and regulation governing the contract of employment and the Court under no circumstances is expected to interfere in the employers disciplinary powers. See also Union Bank v. Salaudeen, supra; Avre v. NIPOST [2014]LPELR-22629; It is trite that an employer, before dismissing his employee, must satisfy the requirements of fair hearing by bringing the allegation against the employee to his notice and afford him adequate time to reply to same. It is settled law that where a party is given ample opportunity to present his case within the confines of the terms and conditions of service, he would be said to have been given a fair hearing. It is also a basic principle of law that doctrine of fair hearing has its source from the common law concept of natural justice with its twin pillars, first, that a man shall not be condemned unheard or what is commonly known as audi alteram patem, and secondly, that a man shall not be a Judge in his own cause or nemo judex in causa sua. Fair hearing in employment relationship is a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in our Constitution as well as statutes as in this case Ekiti State Law, the essence of which is for an employer to give an employee the opportunity to react to an allegation of misconduct meted against him. See the cases of Kano State Civil Service Commission & Anor v. Bashir Abba Sheriff & Anor LER[2018]CA/K/557/2015; Darma v. Eco Bank Nig. Ltd [2017] 9 NWLR-(PT. 1571) 480; Benin Electricity Distribution Company Ltd v. Esealuka [2013] LPELR-20159 CA; Audu v. Petroleum Equalization Fund Management Board & Anor [2010] LPELR-3824CA.The determination of an employment flavoured by statute must be done in the manner prescribed by that statute, this is premised on the reasoning that a breach of same or a deviation from the laid down principles, indisputably goes to the foundation/root of the suit which will be declared null and void and of no effect by a Court of Competent jurisdiction. See the cases of F.M.C v. Alabi [2012] 3 NLLR, P.228 @ P.257-258; Chief Isaac Egbuchu v. Continental Merchant Bank Plc & Ors [2016] LPELR 40053 SC.

 

It is noteworthy as stressed by the defendants that the grounds leading to the compulsory retirement of the claimant borders on insubordination, arrogance and willful disobedience to constituted authority. I need to state here that the defendants must of a necessity comply with the provision of statutes and the letter of employment of the claimant regulating her employment before they could compulsorily retire the claimant. Before the Court is exhibit F4, which is the 1st defendant’s law regulating its affairs with its employees. A cursory look at Exhibit F4 at Schedule 2 provides on the “Removal of Principal Officers (Namely) thus;

  1. Vice chancellor,
  2. Registrar,
  3. Bursar, and
  4. University Librarian.

(2) the appointment of a statutory officer shall not be determined by the council unless there has been an investigation relating to his case by Joint Committee nominated by the council and senate and composed as follows:

  1. Three members of Senate,
  2. Four members of council of which one shall be chairman elected at the first joint meeting.
  3. The person concerned must have been duly notified in writing, and if he so requests shall be permitted to defend himself in person or through his chosen representatives before joint committee and the report of the joint committee shall be considered by the council whose decision shall be final unless an appeal through the chancellor to the visitor is upheld.”

I find it clear from the above captured provision that the claimant’s appointment cannot be determined unless there has been an investigation by the joint committee comprised of three members of Senate and four Members of Council.  Also, she is entitled to be duly notified in writing and given an opportunity to defend her case in person or through the representative of her choice before the committee and after which a verdict shall be given by the council. It is plain on record that the claimant was by a letter dated 28th of July, 2005 (Exhibit A) compulsorily retired by the 2nd defendant from the services of the 1st defendant in line with the instruction of the White paper and that she should be asked to proceed on terminal/accumulated leave with effect from Monday 1st of August, 2005. Nevertheless, by another letter dated 1st of August, 2005 (Exhibit A12), she was recalled back to her position with effect from the date as a bursar by the 2nd defendant. However, she was by exhibit F2 dated 28th of March, 2014 compulsorily retired with effect from 1st of April, 2014 from the services of the 1st defendant. A question that requires an answer here is, did the defendants follow the procedure for determining the employment of the claimant as stated in exhibit F4? I answer this question in the negative, this is because I find no single evidence on record to show that the defendants duly followed the provisions of Exhibit F4. She was neither issued a query nor given any opportunity whatsoever to defend herself on the allegation of insubordination, arrogance and willful disobedience to constituted authority as alleged by the defendants in their pleadings, there is nothing on record equally evincing that there was a joint committee constituted by the defendants for the purpose of investigating and considering the claimant’s case. This to me is a serious breach of the contract, defendants obviously failed to follow the procedure listed in the University law in determining its relationship with the claimant. It is also plain that the defendants denied the claimant his right to fair hearing when it avoided/sidetracked the required due processes available to validly determine claimant’s employment. The Apex Court in the recent case of Akinola Arobieke v National Electricity Liability Management Company [2017] LPELR 43461 SC. held that the rules of fair hearing, natural justice can neither be compromised nor waived. The reason is that any violation to that basic rule of fair hearing should automatically bring to void whatever had been done in the process of enquiry embarked upon by the panel, judicial or administrative as it is clear that an employee’s right to fair hearing is sacrosanct/well-regarded, inviolable. It would be a travesty of justice to overlook such a violation of the right of an employee to be heard before determining her employment on an allegation of misconduct. The appointment of the claimant cannot be determined other than in the way prescribed by the law, and any manner of termination that is inconsistent with the provision of the statute or conditions of appointment is null and void see the case of Obanye v Union Bank Nig Plc [2018] LPELR- 44702. What the defendants did was vide a letter dated 28th of March 2014, which letter was to be in response to claimant’s request letter for payment of her entitlement as Bursar, admitted to pay the claimant at its paragraph 3 to pay her the entitlement as a Bursar, but at paragraph 5 compulsorily retired the claimant from its service for having served for 31 years. This clearly is an infraction on the provision of the law regulating claimant’s employment. This is so because the age of retirement of an employee in the Public Service ditto the 1st defendant is 35 years of service as opposed to 31 years they purportedly retired her. It is consequent upon the total haughtiness of the defendants, that I find claimant’s compulsory retirement unlawful and in that regards, the letter of compulsory retirement dated 28th of March, 2014 and with effect from 1st of April, 2014 is null, void and of no effect whatsoever and hence set aside. I so find and hold.

It is the claimant’s claim that she is entitled to an order of reinstatement into her employment as a staff of the defendants’ University. It is settled law that where the legal procedure required for disengagement of a statutory employment was not followed, decision reached will be void and the employee is entitled to be reinstated to his/her previous position as it will be deemed as if he/she never left the employment. Reinstatement in labour law means putting back the claimant to the position he/she occupied before the unlawful removal. By Ekeagwu v. Nigerian Army [2010] 16 NWLR 419 SC, where a relief of reinstatement is granted, the claimant is entitled to be paid all her salary/emolument up to the time of reinstatement and thereafter. However, there are exceptional circumstances where reinstatement will not be an appropriate remedy. This is in view of the fact that by Exhibit A2 dated 27th of September, 2010 at paragraph 3 of the document claimant stated emphatically that she was fifty-five years (55) years old as at the time she wrote the letter to the defendant in 2010 persuading the defendants to extend her tenure as a bursar with an extra year. Also, by exhibit F2 dated 28th of April, 2014, at paragraph 6 the defendants stated that “our record shows that you served for twelve (12) years, eleven (11) months and fifteen (15) days in the university; and a total of thirty one (31) years and two (2) months in the public service” A clear calculation of the claimant’s age from 2010 till 2019 when the judgment is delivered is about 64 years old and 36 years in public service and by Exhibit F4 at Schedule 2 provides that the retirement age of staff of the University for “(2) a non-teaching staff shall retire from the service of the University upon attaining the age of sixty-five (65) years or if he or she has put in maximum of thirty-five (35) in the service of the university whichever comes first ”. It is obvious that the claimant from 28th of April, 2014 when exhibit F2 was written to her till 16th of January, 2019 when this judgment is delivered, is about 36 years of service which is over and above the statutory years required to serve in the public service. It is in the light of this that I find that claimant’s claims for reinstatement fails.

What then would be the appropriate remedy in the circumstances? It is the law that where reinstatement is not applicable or impossible as in this instance, what the Court is expected to do is to award damages in lieu of reinstatement. See the case of Governor of Ekiti State v. Ojo [2006] 17 NWLR (Pt 1007) 95. Having held that the claimant was unlawfully retired, by the defendants, it goes without saying that she is equally entitled to damages, all her salaries from 1st of April, 2014 till February, 2018 when she ought to have lawfully retired from service. I so find and hold.

It is worthy of mention that the claimant is seeking for an alternative reliefs, meaning she wants either of the relief sought, in which case, when she is granted any of the reliefs, it suffices for the purpose of satisfying her claim. Both the main claim and the alternative claim cannot at the same time be granted. It cannot be granted along with or in addition to the grant of the main or principal claims made by the same plaintiff against the same defendants. See the cases of Holborn Nigeria Ltd v O.C Chris Enterprises Ltd [2014] LPELR 23972 CA; Xtoudos Services Nigeria & Anor v Taisei (W.A) Ltd &Anor [2006] LPELR 3504 SC; A.I.C Ltd v Edo State Gov & Anor [2016] LPELR 40132 CA. It is clear from the above, that where the main claim succeeds, the alternative claim sought would not be heard. An examination of the claimant’s claim in the alternative discloses thus-

ALTERNATIVELY:

  1. A Declaration that the claimant having transferred her service to the defendants’ University is entitled to her full pension and other retirement benefits as a Bursar of the University.
  2. An Order directing the defendants to pay to the claimant all her pension, gratuity and other retirement benefits from the time she joined the public service till her date of retirement calculated at:
  3. Gratuity: 300% of annual total emolument which is N18,060,489.00 (Eighteen Million and Sixty Thousand Four Hundred and Eight Nine Naira).
  4.   Monthly pension: 100% of monthly emolument/salary which is N543,165.03 (Five Hundred and Forty Three Thousand, One Hundred and Sixty Five Naira and Three kobo).
  5. An Order directing the defendants to pay to the claimant the sum of N48,884,852.07 (Forty Eight Million, Eight Hundred and Eighty Four Thousand, Eight Hundred and Fifty Two Naira and Seven kobo) being salaries accruable to the claimant from 1st April, 2014 to 30th of September, 2021
  6. N10,000,000.00 (Ten Million Naira) only as general damages for the unlawful retirement of the claimant by the defendants on 1st April, 2014 vide the defendants’ letter of 28th March, 2014.

 

A careful examination of her alternative claims reveals at alternative claim 2 that she claims for her gratuity and pension benefits. Now an appropriate question to answer would this claim be forgone on the ground that since the main claim succeeds, there is no need to look into the alternative when the claim prayed for is constitutionally provided for, I answer in the negative as it appears to me that the Constitution which is the grundnorm and is Superior, above every other laws and any law which is inconsistent with the provisions of the Constitution is void to the extent of its inconsistency. See Section 1 (3) of the 1999 Constitution as amended and the cases of Saraki v FRN [2016] LPELR 40013 SC; Chevron (Nig) Ltd v Imo State House of Assembly &ors [2016] LPELR 41563 CA; EFCC v Agbele [2018] LPELR 44677 CA. Section 210 (1) and (2) of the 1999 Constitution as amended provides that;

 “Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by law.

(2) Any benefits to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent permissible under any law, including the code of conduct.”

 See the case of Ajao v Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office &Anor [2016] LPELR 41407 CA;

The claimant in this case has claimed the sum of N18,060,489.00 (Eighteen Million and Sixty Thousand Four Hundred and Eight Nine Naira) as her gratuity and also the sum of N543,165.03 (Five Hundred and Forty Three Thousand, One Hundred and Sixty Five Naira and Three kobo) as her pension. The defendants did not challenge this amount and this invariably means that it is admitted as unchallenged facts by the defendants is deemed admitted. See Ugwuegede v. Asadu & Ors[2018]LPELR-43717SC; Gana v. FRN [2018] LPELR-44344SC;Mabamije v. Otto [2016] LPELR- 26058SC; Adagunja & Ors v. Isiyemi & Ors [2018]LPELR-43955CA; Lawani v. Grillo & Ors [2018] LPELR-44912CA. Hence, the payment of gratuity and pension is predicated upon a right which is constitutionally guaranteed and not dependent on the discretion of the defendant or Government, it is a right which is inalienable/ immutable. It is predicated upon this that I find that the claimant having retired is entitled to her gratuity and pension and it cannot be withheld by the defendant under any guise/façade. I so hold.

In summary, the claimant’s claims succeed in part and for the avoidance of doubt it is declared and ordered as follows-

  1. That the compulsory retirement of the claimant on the 28th of March, 2014 is unlawful.
  2. That the letter of compulsory retirement dated 28th of March, 2014 but with effect from 1st of April, 2014 is void and hereby set aside.
  3. That claimant claim for reinstatement fails.
  4. That claimant is entitled as damages to all her salaries from the period she was unlawfully retired to 2018 when she would have lawfully retired.
  5. That the claimant is entitled to the sum of N18,060,489.00 (Eighteen Million and Sixty Thousand Four Hundred and Eight Nine Naira) as her gratuity and also the sum of N543,165.03 (Five Hundred and Forty Three Thousand, One Hundred and Sixty Five Naira and Three kobo) as her pension.
  6. All judgment sum is to be paid within 30 days of this judgment, failing which it shall attract an annual interest of 10% of the total judgment sum.

 

Judgment is accordingly entered.

 

Hon. Justice Oyewumi Oyebiola O.

 Presiding Judge

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