IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 18th July, 2025 SUIT NO. NICN/MKD/02/2018
BETWEEN:
JAM MSUGH JAMES - - - - - - Claimant
AND:
1. NATIONAL YOUTH SERVICE CORPS (NYSC)
2. THE DIRECTOR- GENERAL, NATIONAL Defendants
YOUTH SERVICE CORPS (NYSC)
3. THE ATTORNEY- GENERAL OF THE FEDERATION
REPRESENTATION:
Bemva Akortsewa for the Claimant
J. E. Okpe for the 1st and 2nd Defendants
JUDGMENT
The Claimant commenced this suit by way of Complaint and other accompanying processes dated and filed 12th January 2018, asking for the following reliefs as set out in his statement of facts against the Defendants;
“1. A DECLARATION that the notice of dismissal dated 16th October 2017 which was issued after the senior staff committee meetings no. 3/2017 held at Oaklands Hotel and Recreation park, Enugu on the 11th September 2017, indicting the Claimant is null, void and of no effect having been obtained without fair hearing from the Claimant and constitute breach of his fundamental right to fair hearing guaranteed under the 1999 Constitution of the Federal Republic of Nigeria 1999 (as Amended).
2. A DECLARATION that the action of the 1st Defendant agent by name Mathias Konna who has induced the Claimant to write an apology letter after giving him a sample copy to endorse before his promotion letter will be handed over to him is wrongful, unjust, an undue influence, null and void having been obtained under duress.
3. A DECLARATION that the purported procedure through which the 1st and 2nd Defendants reached their decision on the allegation of misconduct against the Claimant without proper investigation/enquiry as contained in the notice of dismissal is irregular, unconstitutional and constitutes a gross breach of Claimant’s right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria 1999 (as Amended).
4. A DECLARATION that the purported disciplinary actions taken against the Claimant without due compliance/regard to the Claimant’s right to fair hearing is unlawful and a gross violation of his right to fair hearing.
5. AN ORDER of the Honourable Court setting aside and/or nullifying the purported letter of apology which was given to the Claimant to copy and that which he has written under duress and for a promise of reward before receiving his promotion letter.
6. AN ORDER of the Honourable Court setting aside and nullifying the purported disciplinary actions reached and taken against the Claimant as contained in the 1st and 2nd Defendants notice of dismissal dated 16th October 2017 without proper enquiry and without being allowed a defence before any panel or committee which said actions are in contravention of his right to fair hearing.
7. AN ORDER of this Honourable Court directing the 1st and 2nd Defendants by themselves and/or through its officials or anyone acting on its behalf, to reinstate the Claimant on Claimant’s job as Senior Inspector with all the benefit/arrears of salary in the tune of ?88,497.46, each camp allowances of N185,900.00 passing out parade monitoring allowance of N15,000.00 and promotion and which otherwise would have been due to the Claimant from the date of dismissal.
8. A SUM of N100,000,000.00 (One Hundred Million Naira) as general damages for breach of fundamental right of the Claimant.
9. COST of this suit.
10. A ten percent (10%) post judgment interest until final liquidation.
11. Alternatively an order of this Honourable Court converting the said dismissal to retirement with all statutory retirement benefit.”
The 1st and 2nd Defendants upon service of the originating processes filed a Notice of Preliminary Objection (NPO) on 13/4/2018 asking to strike out/dismiss the matter and filed a statement of defence on 10/12/2018. However the NPO was overruled on 20/6/2018.
The 1st and 2nd Defendants earlier filed a statement of defence on 19/6/2018 but was struck out at their instance.
Meanwhile the 3rd Defendant, with leave of court filed his amended statement of defence on 18th September 2018.
The Claimant thereafter filed a reply to the defence of all the Defendants.
CASE OF THE CLAIMANT
The case of the claimant from his pleadings is that he was employed by the 1st Defendant in 2006 and served at various positions in some different local governments of some states of the Federation. The Claimant also averred that he enjoyed promotions and was never found wanting until July 2016 when the ordeal that led to his dismissal on 16th October 2017 began. According to the Claimant, as an Inspector covering Gwer-West Local Government, he was confronted and queried over a serving corps member (Njoku Victoria) who was not at her place of primary assignment. He explained that she called in with an emergency to go and attend to her sick father but did not take permission from the principal of the school where she was serving and did not seek his permission either.
According to the Claimant, the said corps member was later induced by the Inspection and monitoring team of the 1st Defendant to indict the claimant by stating that she had an arrangement with the Claimant to stay away from her place of primary assignment and that she paid the Claimant to cover her while she was away. The Claimant stated that he was coaxed to write an apology letter confessing what transpired in return of his letter of promotion to grade level 10 which had been held down on ground of vacancy. Claimant also stated that he was not invited before any panel and no fair hearing was given to him before his dismissal hence this suit.
CASE OF THE 1ST, 2ND AND 3RD DEFENDANTS
The facts as elicited from the defence of the defendants are that, the Claimant as a Local Government Inspector knew that no serving corps member is permitted to use initials but signature on all documents. That when initials were seen on the register from the place of primary assignment of Njoku Victoria, the 1st and 2nd Defendants had to make enquiries where investigations revealed that the Claimant was receiving Twelve Thousand Naira monthly for seven months from the said corps member for her to stay away from her place of primary assignment. That some payments were made via the Corps liason officer while some were paid through the personal account of the Claimant.
The 1st and 2nd Defendants stated further that the Claimant made an apology admitting the allegations during investigations by the Staff Management Committee set up by the 1st and 2nd Defendants and that the corps member, after the first denial later willingly confessed to the arrangement she had with the Claimant without coercion.
The Court is then urged to dismiss the suit of the Claimant as fair hearing was accorded the Claimant at all material times.
TRIAL
On 8th April 2019, trial commenced with the Claimant testifying as CW1 where he adopted his statements on oath dated 6/9/2018 and 17/1/2018 respectively and tendered thirty- four (34) documents as Exhibits to wit;
1. Probationary offer of appointment dated 11/12/2006- Exhibit JMJ1
2. Posting letter dated 2/1/2007- Exhibit JMJ2
3. Confirmation of Appointment- Exhibit JMJ3
4. Posting letter to Guzamela dated 22/1/2007- Exhibit JMJ4
5. Promotion letter dated 19/6/2010- Exhibit JMJ5
6. Invitation letter dated 15/4/2010- Exhibit JMJ6
7. Letter of Invitation dated 22/4/2013- Exhibit JMJ7
8. Posting letter 24/7/2013- Exhibit JMJ8
9. Posting letter 20/4/2015- Exhibit JMJ9
10. Internal posting letter dated 14/11/2016- Exhibit JMJ10
11. Internal Posting letter dated 9/1/2017- Exhibit JMJ11
12. Internal posting letter dated 21/11/2016- Exhibit JMJ12
13. Promotion letter dated 3/9/2013- Exhibit JMJ13
14. Letter of Invitation dated 24/3/2014- Exhibit JMJ14
15. Letter of Invitation dated 6/7/2015- Exhibit JMJ15
16. Letter of Invitation dated 3/8/2015- Exhibit JMJ16
17. Name of Corpers time booklet-Exhibit JMJ17
18. Report of Njoku Victoria dated 21/7/2016- Exhibit JMJ18
19. Query letter dated 27/7/2016- Exhibit JMJ19
20. Response to query dated 29/7/2016- Exhibit JMJ20
21. Query letter dated 3/8/2016- Exhibit JMJ21
22. Response to query dated 3/8/2016- Exhibit JMJ22
23. Letter addressed to the 2nd Defendant dated 2/4/2017- Exhibit JMJ23
24. Promotion letter dated 11/10/2016- Exhibit JMJ24
25. Query letter dated 23/3/2017- Exhibit JMJ25
26. Statement of account of the Claimant- Exhibit JMJ26
27. Letter addressed to the Head of Service and Proof of service and the Minister dated 2/11/2017- Exhibit JMJ27A and B
28. Letter addressed to the President of the Federal Republic of Nigeria dated 8/11/2017- Exhibit JMJ28
29. Solicitor’s letter dated 22/11/2017- Exhibit JMJ29
30. Letter titled “further to your query”- Exhibit JMJ30
31. Letter written by Njoku Victoria dated 7/10/2016- Exhibit JMJ31
32. Letter of dismissal dated 16/10/2017- Exhibit JMJ32
33. National Youth Service Corps Conditions of Service of 3rd August 2013- Exhibit JMJ33
34. Public Service Rules of 2004- Exhibit JMJ34
CW1 was cross examined by the Defendants and discharged after re-examination.
On 22nd January 2020, Salamatu Wada (DW1) testified on behalf of the 1st and 2nd Defendants and adopted her sworn statement on oath dated 10/12/2018 and tendered the following 12 Exhibits;
1. Njoku Victoria Personal file- Exhibit NYSC1
2. Report by Mr. Godwin Ojukwu- Exhibit NYSC2
3. Query letter dated 3/8/2016- Exhibit NYSC3
4. Response to Query dated 3/8/2016- Exhibit NYSC4
5. Report of staff Management Committee meeting dated 11/11/201- Exhibit NYSC5
6. Report of Committee to review disciplinary case dated 15/6/2017- Exhibit NYSC6
7. Njoku Victoria letter dated 7/10/2016- Exhibit NYSC7
8. Letter of confession by the Claimant dated 19/10/2016- Exhibit NYSC8
9. Query letter to the Claimant dated 27/7/2016- Exhibit JMJ9
10. Response to query by the Claimant dated 29/7/2016- Exhibit NYSC10
11. Another query to the Claimant dated 23/3/2017- Exhibit NYSC11
12. Response to query by the Claimant dated 2/9/2017- Exhibit NYSC12
DW1 was cross examined by the 3rd Defendant and the Claimant as well. She was then discharged after re- examination.
Njoku Victoria Oluchi testified on 2/11/2020 as DW2. She adopted her statement on oath made on 25th June 2019 and was cross-examined by counsel to the Claimant and discharged after re- examination.The matter was then adjourned for adoption of final written addresses.
SUBMISSIONS OF THE 1ST AND 2ND DEFENDANTS
The final written address of the 1st and 2nd Defendants was filed on 2nd December 2020 via leave of the Court granted on 16/5/2025 wherein a single issue for determination was raised by counsel to wit:
"Whether from the state of pleadings and evidence led by the parties, the Claimant was given fair hearing before his dismissal by the 1st and 2nd Defendants."
According counsel, it is not in dispute that the Claimant was a senior staff of the 1st Defendant. That he was accused of conniving with a corps member to evade her national service by extorting money from her which amounts to serious misconduct. That two committees were set up to investigate the allegations against the Claimant where the staff management committee verbally invited the Claimant to appear before them and the Claimant made a verbal confession before the then State Director, Mrs. Atamenwan, E.E. before he reduced it into writing.
It is the submission of counsel that by Chapter 4.3 (a)-(f) of the NYSC conditions of service 2013, where a staff is accused of a serious misconduct, he must be referred to an appropriate body which in this case was the staff management committee. That the committee invited the Claimant verbally which he admitted in paragraph 37 of his deposition but stated that he was not allowed to say anything.
Counsel argued that by the various Exhibits tendered, the Claimant’s actions showed connivance, negligence and intention to sabotage the NYSC scheme. That by Exhibit NYSC1, DW2 had a regular signature but when she got to her place of primary assignment, the signature suddenly changed to an initial “V”. Meanwhile the Claimant is aware that Corps members are forbidden from using initials as signatures. That it is only DW2 who signed the monthly payment voucher with an initial "V" to the knowledge of the Claimant.
Counsel also submitted that the Claimant during cross examination admitted that he was not denied any benefit due to him on his promotion and the promotion letter pre- dates the confessional statement of the Claimant. That this clearly undermines the claims of the Claimant that he was threatened with denial of promotion to elicit a confessional statement from him.
It was argued that DW2 testified that she had an arrangement with the Claimant, paying him ?12,000.00 monthly for seven months to avoid service at her place of primary assignment. That Payments were initially made through the Corps Liaison Officer (CLO), who received ?2,000.00 and later directly into the Claimant’s account and this contradicted the Claimant’s defence that the money was a loan or payment for corps members’ magazine, as the magazine for 2015 Batch B only commenced in July 2016, whereas payments were made in April 2016.
Counsel submitted on the issue of fair hearing that by the provisions of the NYSC conditions of service, the Defendants issued two queries to the Claimant on grounds of gross misconduct which he equally responded to and gross or serious misconduct attracts dismissal as punishment. Counsel cited Imonikhe V. Unity Bank Plc (2011) 12 NWLR (pt. 1262) 649, Azenabor V. Bayero University Kano (2009) 17 NWLR (pt. 1169) 96, NITEL Plc V. Akwa (2006)2 NWLR (pt. 83) 406 and Yusuf V Union Bank of Nigeria Ltd. (1996) 6 NWLR (pt. 457) 632.
Counsel went further to submit that the Claimant was accorded fair hearing prior to his dismissal and an employee who replied a query in writing cannot complain of lack of fair hearing. Citing Section 36 of the 1999 Constitution and the case of Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423 and Maiyako V. Itodo (2007) 7 NWLR (pt. 1032) 443 and Imonikhe V. Unity Bank Plc (supra).
In onclusion, counsel maintained that the Claimant’s dismissal was justified, as he was accorded fair hearing and the evidence overwhelmingly proved his involvement in misconduct. Thus, his claims lacked merit.
SUBMISSIONS OF THE CLAIMANT
Claimant's final written address filed on 11/12/2020 contains the following three issues for determination;
- “Whether the Claimant has proved his case against the Defendants, in support of his reliefs having regard to the totality of the evidence before the Court.
- Whether the Defendants have proved the allegation of serious misconduct against the Claimant which warrant his dismissal.
- Whether the Defendants have complied with the conditions of service in dismissing the Claimant on allegations of serious misconduct.”
ISSUE ONE
Counsel submitted on issue one that the uncontroverted facts placed before the court without any counter from the Defendants show that the Claimant has successfully proved his case. That, Mrs. Atamenwan and Mr. Mathias Konna were not part of the committee for promotion and discipline because they were not qualified by law. That the Claimant was not the author of the register and did not have any agreement with the said Miss Victoria Njoku to cover her up but that, he only gave her a loan of Ten Thousand Naira which she repaid with two thousand naira meant for messages for NYSC magazine.
It was stated that Exhibit JMJ30 was never disproved by the 1st and 2nd Defendants as neither Mr. Mathias Konna who induced CW1 nor Mrs. Atamenwan who gave a condition to CW1 to meet before his promotion letter would be handed over to him were called to disprove this claim.
Counsel submitted that the Claimant has proved his claims against the Defendants by oral and documentary evidence to show that his right to fair hearing was infringed upon. That, the Claimant informed the court that he did not appear before any panel and the principal actors who perpetrated his illegal dismissal were never brought to court to give evidence because if the principal actors were called, their evidence would go against them which amounts to withholding evidence as held in Obenwon V. State (2020) 13 NWLR (pt. 1740) 69.
It was the further submission of Counsel that the Claimant has proved his claims by referring to Exhibits JMJ19 and JMJ32 and that DW1 under cross examination admitted that the Claimant denied all the allegations in Exhibit JMJ23. That the Claimant was a senior staff before his dismissal, that Exhibits NYSC 5 and NYSC 6 did not recommend the dismissal of the Claimant, and that the Claimant never appeared before any committe. That this admission was corroborated by DW2. Counsel urged the court to resolve this issue in favour of the Claimant.
ISSUE TWO
On issue two, Counsel submitted that the 1st and 2nd Defendants called two witnesses and tendered documentary evidence which are caught up by admissibility test and the 3rd Defendant did not call any witness but relied on the documents and testimonies of the 1st and 2nd Defendants.
According to Counsel, the documents tendered by the 1st and 2nd Defendants did not meet up with the admissibility test as they were not tendered by the makers. That Exhibit NYSC1 which is the file of DW2 was tendered via DW1, and DW2 never made reference to the documents and no foundation was made thereto. That Exhibit NYSC2 which is a report by Godwin Ojokwu was tendered through DW1, Salamatu Wada. Exhibit NYSC3 to NYSC 9 were photocopies tendered without proper foundation. That the tendering of all these documents through DW1 who is not the maker and without proper foundation amounts to documentary hearsay. Counsel cited Section 84 (1) of the Evidence Act and the cases of Kakong V. The State (2017) SCm66, Belgore V. Ahmed (2013) 8 NWLR (Pt. 1355) 60, Mark V. Abubakar (2009) 2 (pt. 1124) 79 and Ikpeazu V. Otti (2016) ESJC 8383.
Counsel continued that the statement on oath of DW2 especially paragraphs 11, 16, 17, 26, 28, 30, 32 and 40 offend section 115 (1) and (4) of the Evidence Act as they are incompetent in law and defective in substance and ought to be struck out as the defects cannot be cured. Citing also section 113 of the Evidence Act and the cases of Elias V. Eco Bank Plc. Counsel urged the Court to strike out the said paragraphs of the statement of DW2 as one cannot put something on nothing and expect it to stand as held in Veepee Ind. Ltd. V. Cocoa Ind. Ltd (2008) All FWLR (Pt. 425) 1667.
Counsel contended that the signature of DW2 at the deponent’s page was scanned from the computer as she did not sign thereby making the statement on oath incompetent. This shows that the writ of summons and statement of claim of the 1st and 2nd Defendants are not accompanied with any statement on oath and same is defective. Counsel relied on Henry Oklobiemen V. Union Bank of Nigeria Plc (no citation).
Counsel submitted that the 3rd Defendant filed a statement of defence with a witness statement on oath but did not field any witness, rather the 3rd Defendant relied on the witnesses of the 1st and 2nd Defendants. According to counsel, the 3rd Defendant has no evidence before the court and it is trite that pleadings are deemed abandoned when they are not supported by evidence as held in the case of Popoola Banmgbegbin & Ors. V. (2009)13 NWLR (pt. 1158) 370.
ISSUE THREE
Counsel argued on issue three that, assuming there was any recommendation to dismiss the Claimant, it should have been done according to the laid down conditions of service of the 1st Defendant especially as provided under chapter two dealing with appointment and recruitment and chapter four which deals with discipline. Thus, the dismissal of the Claimant within the outlined provisions contained in chapter four of the conditions of service shows that the dismissal was null and void and of no effect.
Counsel equally submitted that the appointment of the Claimant was one with statutory flavor, therefore his termination or dismissal thereof must be in line with the statute. Counsel cited Oni V. Gov. of Ekiti State (2019) 5 NWLR (pt. 1664)1.
Counsel contended that from the time of the response to the query up to the time of the claimant's dismissal, it was six months eight days as against the stipulated period of three months and by Exhibits NYSC5 and NYSC6, the categories of persons who sat to look into the allegation of the Claimant, lacked the capacity to so do as the Claimant was a senior staff on grade level 10. Therefore, the burden lies on the 1st and 2nd Defendants to prove the allegations against the Claimant. Counsel referred the court to the case of Ikpeazu V. Otti (2006) 41 EJSC 83.
According to the Claimant's Counsel, corruption and extortion are serious offences which require proof beyond reasonable doubt and it is not enough for the Defendants to rely only on the Public Service Rules. Counsel referred the Court to particularly section 030305 and 04306 of the Public Service Rules, section 135 (1) (3) of the Evidence Act and the case of Tajudeen V. FIRS (2020) 12 NWLR (pt. 1739) 459.
Counsel urged the court to expunge Exhibits NYSC1, 2, 3, 4, 5, 6, 7, 8, 9 and 11 for being documentary hearsay. That, they are inadmissible documents having not been tendered by the maker who should have been cross examined on the documents. Counsel cited Nwaogwu V. Atuma (2013) 11 NNWLR (pt. 1364) 117, Genga V. APC (2020) 14 NWLR (pt. 1744) 248 and Ilyasu Suberu V. The State (2010) 8 NWLR (pt. 1197) 586.
Counsel also urged the court to discountenance the entire final written address of the 1st and 2nd Defendants for being argued in error. That the submission on Exhibits JMJ33 and JMJ34 was at variance with the conditions of service of the 1st Defendant and that the Claimant denied the confessional statement in Exhibits JMJ19 and JMJ20 especially as DW1 informed the Court that the Claimant denied the allegations raised against him.
In concluding, the Court is urged to grant all the reliefs of the Claimant from the date of his dismissal.
DECISION OF COURT
Having carefully considered the pleadings filed, the evidence adduced and submissions of the respective counsel, the issue I will determine is whether the Claimant has proved his case to be entitled to the reliefs sought?
The Claimant's case before the court is that he was employed by the 1st Defendant in 2006 and worked in different roles across various locations, receiving promotions over the years. However, in July 2016, he was accused of conspiring with a serving corps member (DW2) to allow her to avoid her primary assignment in Oju, Benue State, in exchange for a monthly payment of Twelve Thousand Naira. That the Claimant initially denied the allegations but later claimed that the then-State Director of the 1st Defendant intimidated him into admitting guilt in return for his promotion letter to grade level 10.
Claimant has asked for eleven reliefs, four out of the reliefs are declaratory in nature, namely, seeking to invalidate his dismissal on the basis of violation of his fundamental right to fair hearing and undue influence-particularly concerning his coerced letter of apology and other procedural irregularities. He also argued that the entire disciplinary process leading to his dismissal disregarded his right to fair hearing, rendering it null and void.
The provisions under Sections 131, 132, and 133 of the Evidence Act 2011 state that the responsibility to prove the existence or non-existence of a fact rests on the party who would lose the case if no evidence is presented in their favor. This principle was affirmed in Adeyemo & Anor V. Akintola (2003) LPELR-10905 (CA), where the Court ruled that the plaintiff bears the burden of proving that a loss occurred or that damages were incurred. A similar stance was taken in Kuku V. Olushoga (1962) 1 ALL NLR 6625 and Nwavu V. Okoye (2008) LPELR-2116 (SC), reinforcing the principle that the party asserting a claim must provide evidence to substantiate it.
In proving his reliefs, the Claimant testified on his own behalf and tendered thirty-four Exhibits as evidence. He argued that the disciplinary process outlined in Chapter 4(3) of Exhibit JMJ33 (National Youth Service Corps Conditions of Service) was not properly followed, particularly concerning his right to appear before a disciplinary panel. Additionally, he maintained that, as a senior staff member, the disciplinary committee that investigated the allegations against him was improperly constituted. He further contended that the three-month time frame required to finalize the disciplinary proceedings was not adhered to.
The Claimant acknowledged only that he had been issued three separate queries on different dates (Exhibits JMJ19, JMJ21, and JMJ25), to which he responded by denying any knowledge or involvement in the absence of the Corps member (DW2) from her assigned place of primary assignment.
Now, let me refer to Chapter 4.2.(b)(xiii and xiv) of Exhibit JMJ33 which defines Serious misconduct as follows:-
(b) Serious misconduct: This means a specific act of very serious wrong doing and improper behavior which is inimical to the image and proper administration of the Scheme, and if investigated and proved, may lead to dismissal from service. Any of the following offences is a serious act of misconduct:
i...............;
................;
................;
xii. Corruption;
xiv. Extortion;
...................
...................
xxv.................. "
Similarly Chapter 4.3 also states as follows:-
“4.3 DISCIPLINARY PROCEDURE:
Due process shall be followed in instituting disciplinary measures against an erring officer as follows:
(a) The officer shall be issued with a written query detailing the alleged offence and prescribing a time limit within which the officer shall respond in writing.
(b) The officer shall acknowledge the receipt of the query on a slip to be attached to the query for that purpose.
(c) If the officer works in the same station where the query is issued, he/she shall respond to the query within a period of time not exceeding three (3) days from the date of receipt of the query. If, however, the officer works in a station other than that from which the query is issued, he/she shall respond to the query within a period of time not exceeding seven (7) working days on receipt of the query.
(d) The alleged offence shall be investigated by an independent team vis-a-vis the response of the officer.
(e) The officer shall be allowed full access to all official documents he/she may require to make his/her defence.
(f) The officer shall appear before the appropriate disciplinary committee for hearing and if he so desires, cross-examine the witnesses, if any.
(g) The officer may elect to be represented by a Legal Practitioner, provided that he/she gives the Team/Committee not less than five days notice in writing.
(h) Except where the alleged offence involves crime, all disciplinary cases shall be concluded within three (3) months from the date of receipt of the officer's response to query or expiration of the time limit for the response, whichever is earlier, and a letter of indictment or exoneration issued to the officer.
(i) If an officer is alleged to be generally inefficient, he/she shall be issued with three consecutive warnings before the provisions of sub-sections (a) to (h) of this section shall apply. If the relevant Panel/Committee deems it fit, the officer's appointment may either be terminated or he/she shall be required to retire from service if he/she satisfies the conditions for retirement.
(j) The report of the investigation panel shall be placed before appropriate Personnel Committee/Board which shall, based on the report, affirm or review the decision as it deems fit.
(k) All cases of gross misconduct shall be proved beyond reasonable doubt. If any doubt exists, it shall be resolved in favour of the officer.
..........................”
Now, the principle of fair hearing entails the right to be heard in one's defense. In Gukas V. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614, the Court held that an employee whose employment is terminated for misconduct after being issued a written query and given the opportunity to respond cannot later claim a denial of fair hearing.
Similarly, in Imonikhe V. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 at 648, His Lordship Rhodes-Vivour(JSC) then, emphasized that where an employer accuses an employee of misconduct through a query and allows the employee to reply before making a termination decision, the requirements of fair hearing are satisfied. This means that issuing a query letter constitutes fair hearing, as it provides the accused the opportunity to know the allegations against him and respond accordingly before any disciplinary action is taken.
The Claimant as CW1 admitted in paragraphs 30, 36 and 43 of his evidence that he was issued with queries dated 27th June 2016, another query dated 3rd August 2016 and a third one dated 23rd March 2017 (Exhibits JMJ19, JMJ21 and JMJ25) and he responded to all the three queries even though he contended that he was not invited to any panel. The principle of law remains established that facts admitted require no further proof. See the authorities of Pina V. Mai – Angwa (2018) LPELR- 44498 (SC), Adeleke & 2 Ors, Jolasun V. Bamgboye (2010) 44 NSCQR 94 @ 98 para 5 and Ntuks V. N.P.A (2007) 31 NSCQR 430 @ 435.
The importance of fairness and due process in disciplinary hearings cannot be over emphasized and the key points that need to be highlighted are; that the employee must be informed of the nature of the charge against him to prepare for his defence and be given the opportunity to state his case.
.
It is evidently clear and much conceded that the Claimant was issued queries which he answered. It is also reflected in Exhibit-NYSC6 (Staff Management Committee Report) that the Claimant admitted to the committee of his guilt and pleaded for leniency as the first offender.
Similarly, by paragraph 38 of the claimant's statement on oath, the Claimant admitted appearing before the investigation committee but alleged that, no question was put to him nor was he allowed to talk. See paragraph 38 of the witness statement on oath.
To me, the claimant having been issued queries and appeared before the Disciplinary Committee, cannot say that he was not accorded fair hearing.
Claimant also contended that his apology statement was made in return of his promotion letter which was withheld since 2013 but was only released to him after he was coaxed into making the apology statement/confessional statement admitting the allegation between him and the DW2.
The above contention does not sit well with me. The circumstances leading to the making of the apology statement do not actually show that the apology was done under any threat. The statement does not have any connection with the claimant's promotion. I very much believe that, it was done by the Claimant out of his own free will.
For the Claimant's contention that the three-month time frame required to finalize the disciplinary proceedings was not adhered to, I will simply say that, this contention will only come into play where the allegation does not involve crime as provided by Chapter 4.3(h) of Exhibit JMJ33. In other words, where the allegation involves a crime, then the three months time frame to finalise the disciplinary proceedings will not apply.
On the claimant's contention that the statement on oath of DW2 is defective. It is obvious that the Claimant did not raise this objection on the statement on oath of DW2 at the time it was sought to be adopted as her evidence in Court, but only just raised it at the final address stage. However, the law is that a witness statement on oath upon adoption becomes the evidence in chief of the witness, thus if there is any objection or concern with the witness statement, such objection should be raised at the time the witness seeks to adopt it. Once it is adopted without objection, it is no longer open to a party to challenge the competence of the witness' evidence in chief on the ground of non-compliance or incompetence. The implication of adopting such an irregular witness statement on oath is that such adoption makes the deposition admissible. See AL-USABS VENTURES LTD & ANOR V. GTBANK & ANOR (2021) LPELR-55789(CA) (Pp. 41-42, Paras. B-D), Per ABIRU, JCA.
For the composition of the Disciplinary panel, it was contended by the Claimant that, as a senior staff member, the Disciplinary Committee that investigated the allegations against him was improperly constituted. The provisions of Chapter 2.1.1 state as follows:-
“2.1.1 SENIOR STAFF COMMITTEE:
(a) The Senior Staff Committee (SSC) shall be made up of Heads of Departments.
(b) The Director-General shall be the Chairman.
(c) The Committee shall handle the appointment, discipline and promotion of Officers on SGL 07 and above.”
There is no doubt that the Claimant was on Grade level 10 and his employment with the 1st and 2nd Defendants was governed by the conditions outlined in Exhibits JMJ1 (the appointment letter), JMJ33 (the National Youth Service Corps Conditions of Service), and JMJ34 (the Public Service Rules, 2008).
The evidence before the Court clearly establishes that the Claimant’s appointment had statutory protection, and when an employment contract is regulated by statute or when conditions of service are derived from statutory regulations, the employee holds a legal status beyond that of a typical master-servant relationship. As established in Musibau Olatidoye Adeniyi V. Ejigbo Local Government (2013) LEPLR-22017 (CA), the only valid way to terminate such an employment is by strictly following the statutory procedure. Any termination that deviates from the prescribed legal process is null, void, and ineffective.
Statutorily protected employment typically applies to positions within the public or civil service of the federal, state, or local governments, as well as government agencies, institutions, and parastatals where Civil Service or Public Service Rules are applicable. See Kwara State Polytechnic Ilorin V. Shittu (2012) 41 WRN 26 and University of Ilorin V. Abe (2003) FWLR (Pt. 164) 267 at 278.
Furthermore, it is a well-established legal principle that a public officer facing allegations of misconduct can only be lawfully dismissed if the employer adheres to the prescribed statutory procedure. Failure to comply with this process renders the termination invalid. See FUT Yola V. Maiwuya (2010) LPELR-9001 (CA).
By the provision of Chapter 1.3, "Head of Department" is defined as "a Director of a Department at the Scheme's National Headquarters."
The provisions under Chapters 1, 2 and 4 speak for themselves. The modalities among others under Chapter 4 are that the alleged offence shall be investigated by an independent team; and the officer shall appear before the appropriate committee for hearing; then the report of the investigation panel shall be placed before appropriate Personnel Committee/Board which shall based on the report, affirm or review the decision as it deems fit.
It can be observed from Exhibits NYSC 5 and 6 that the persons who sat as members of the Management Disciplinary Committee were not Heads of Departments as provided by Chapter 2.1.1(a). In Exhibit NYSC 5, which is the Staff Management Committee Report dated 11/11/2016, five members seemed to be Assistant Directors, while in Exhibit NYSC6, which is the Report of the Committee to review the Disciplinary case, it is only 2 persons out of the 5 members who were Assistant Directors.
In Psychiatric Hospital and Management Board V. Ejitagha (2000) 11 NWLR (Pt. 677) 154 at 16 SC, the principle of law was re-affirmed that a public body in exercise of statutory powers must act only within the powers conferred by the statute and must not exceed or act outside those powers.
In the light of the foregoing therefore, I am of the opinion that the 1st and 2nd Defendants have not complied with their Conditions of Service in dismissing the claimant by constituting the appropriate committees to investigate and review the Disciplinary case against the Claimant even on the face of his statement apologising for his involvement in the alleged offence. See Mr. Solomon S. Haruna V. University of Agriculture, Makurdi & Anor. (2004) JELR 49461 (CA). See also the unreported Court of Appeal case of Dr. Patrick O. Nwankwo V. University of Jos & Anor. APPEAL NO. CA/J/307/2019, delivered on 27/1/2025, per Affen J.
I am not oblivious of the case of Dongtoe V. Civil Service Commission, Plateau State (2001) LPELR-959 (SC) 34-38, D-E, where the Supreme Court said that, where there is admission of the offence in issue, there is no need for trial in the regular courts before the employee could be dismissed. But going by the provision of Chapter 4.3(k) of the 2nd Defendant's Conditions of Service (Exhibit JMJ33), which says that "All cases of gross misconduct shall be proved beyond reasonable doubt, if any doubt exists, it shall be resolved in favour of the officer." Then here, the irregularity in the composition of the two Disciplinary Committees will be resolved in favour of the claimant and I so hold.
Accordingly, claimant's case only succeeds in part and since the claimant has in his alternative relief asked to convert the dismissal to retirement, then it is declared and ordered as follows:-
1. A DECLARATION that the purported procedure through which the 1st and 2nd Defendants reached their decision on the allegation of misconduct against the Claimant without placing the appropriate Disciplinary Committees is irregular and void.
2. A DECLARATION that the notice of dismissal dated 16th October 2017 which was issued by the 1st and 2nd Defendants to the Claimant is null, void and of no effect having been issued without following the proper procedure as contained in Exhibit JMJ33.
3. AN ORDER setting aside and nullifying the purported disciplinary actions reached and taken against the Claimant as contained in the 1st and 2nd Defendants notice of dismissal dated 16th October 2017.
4. It is also ordered that the dismissal of the Claimant is set aside but it is converted to retirement from today and the Claimant shall accordingly be paid all his accured salaries, allowances and his statutory retirement benefits.
Judgment is delivered accordingly with no order as to cost.
HON. JUSTICE S.H. DANJIDDA
(PRESIDING JUDGE)