IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.
DATE: THURSDAY 28TH APRIL 2022
SUIT NO: NICN/LA/714/2016
BETWEEN:
MR BOLA SIKIRU DISU CLAIMANT
AND
1. LAGOS STATE UNIVERSITY OF EDUCATION
(FORMERLY KNOWN AS LAGOS STATE COLLEGE
OF EDUCATION AND AS ADENIRAN OGUNSANYA
COLLEGE OF EDUCATION
DEFENDANTS
2. GOVERNING COUNCIL, LAGOS STATE UNIVERSITY
OF EDUCATION (FORMERLY KNOWN AS LAGOS STATE
COLLEGE OF EDUCATION AND AS ADENIRAN
OGUNSANYA COLLEGE OF EDUCATION
Representation:
OA Orewale, with Kehinde Takuro for Claimant
Malachy Ugwummadu, and Opeyemi Adeoye for the Defendants
JUDGMENT
Introduction and Claim:
1. On 18th November 2016, the Claimant filed this suit via the General Form of Complaint, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s witness on Oath, Verifying Affidavit, List of Documents all dated the same 18th November 2016 and copies of the documents to be relied on by Claimant at the trial of this suit. On 28th November 2019, the Claimant filed an amended Statement of Facts, Additional List of Documents, additional documents to be relied upon and a second further witness statement on oath all dated 28 November 2019. In the course of the trial of this suit, the 1st Defendant’s name was changed from Lagos State College of Education to Lagos State University of Education. On the 28th of April 2022, before the judgment in this suit, the Claimant moved a motion for the substitution of the name of the Defendants from Lagos State College of Education to Lagos State University of Education and from Governing Council of Lagos State College of Education to Governing Council of Lagos State University of Education respectively. The application being unopposed and one found to have merit was granted. Therefore, references to Lagos State College of Education in this judgment, and documents referred to as such, refer to Lagos State University of Education. The Claimant claims against the Defendants in this suit as follows:
i. A DECLARATION that the purported compulsory retirement of the Claimant vide letter dated 31st August 2016 by the Defendants is in breach of the Provisions of Chapter 3 of the Senior Staff Conditions of Service of the 1st Defendant, section 32 of Lagos State College of Education Law, Chapter L11, Laws of Lagos State 2003, Lagos State Public Service Rules 2015 and the Claimant’s constitutional right of fair hearing enshrined in section 36(1) of the 1999 Constitution and, therefore, unlawful, null and void.
ii. A DECLARATION that the purported compulsory retirement of the Claimant vide letter dated 31st August 2016 on criminal offences unknown to law without affording the Claimant the opportunity of fair hearing on the alleged criminal offences and being tried in a court of law is a violation of the Claimant’s constitutional right to fair hearing enshrined in section 36(1) of the 1999 Constitution and therefore unconstitutional, null and void.
iii. A DECLARATION that the purported compulsory retroactive retirement of the Claimant vide letter dated 31st August 2016 which retirement took effect retroactively from 10th August 2016 is ultra vires the powers of the Defendants and therefore unlawful, null and void.
iv. AN ORDER reinstating the Claimant to his duty post as a Deputy Registrar of the 1st Defendant.
v. AN ORDER for payment of all salaries and allowances due to the Claimant with any increment thereon from the date of COMPULSORY retirement of the Claimant (31st August 2016) up to the date of reinstatement.
IN THE ALTERNATIVE TO PRAYERS (IV) AND (V) ABOVE
vi. AN ORDER for payment of the sum of N20,77,533.00 being the Claimant’s accrued gratuity/pension benefits calculated by the 1st Defendant from 5th March 1985 to 31st march 2007, subject to an upward review by the 1st Defendant.
vii. AN ORDER for payment of the sum of N4,913,213.95 being the Claimant’s accrued pension benefits from 1st April 2007 to 5th March 2025 (the expected date of Claimant’s retirement), subject to any upward review by the 1st Defendant.
viii. AN ORDER for payment of the sum of N45,941,634 being the Claimant’s salaries, allowances and other benefits from 10th August 2016 to 5th March 2025 (being the expected date of retirement of the Claimant), subject to any upward review by the 1st defendant.
IN THE ALTERNATIVE TO PRAYERS VII AND VIII ABOVE
a. AN ORDER for payment of the sum of N3,543,368.95 being the Claimant’s accrued pension benefits from 1st April 2007 to 5th March 2020, subject to any upward review by the 1st Defendant.
b. AN ORDER for payment of the sum on N20,069,126.00 being the Claimant’s salaries, allowances and other accrued benefits from the 10th of August 2016 to 5th March 2020 subject to any upward review by the 1st Defendant.
ix. AN ORDER for payment of the sum of N3,232,360.20 being the approved and un-utilized 207 days’ annual leave of the Claimant converted to cash.
x. AN ORDER for payment of the sum of N5,853,856.20 being the approved and un-utilized sabbatical leave of the Claimant converted to cash.
xi. AN ORDER for payment of the sum of N2,100,000.00 being the value of Subaru Legacy Car Registration No. LA/49A46 which the Claimant is entitled to take away but returned to the 1st Defendant on the 1st Defendant’s directives after his tenure as the registrar of the 1st Defendant in accordance with the Government rules on Personalised Directors’ Vehicle and Boarding Procedures.
xii. INTERESTS on the sums in paragraph 63(1) to (xi) above at the rate of 21% per annum from 1st September 2016 until the date of judgment and thereafter at the rate of 10% per annum until the judgment sums are fully liquidated by the Defendants.
2. In response to the Claimant’s Statement of Facts, Defendants filed their Statement of Defence on 18th July 2017 and an Amended Statement of Defence and counterclaim dated 17th November 2018 together with all the required processes. The Defendants counterclaimed as follows:
a. AN ORDER compelling the Claimant/Defendant to refund and pay to the 1st Defendant the sum of N468, 000.00 which represents the total sum misappropriated by the Claimant/Defendant.
b. Interest on the sum of N468, 000.00 at the rate of 25% per annum until judgment is given.
c. The sum of N3, 500,000.00 as cost of this action.
3. The Claimant filed a Reply to the Statement of Defence and Defence to Counter Claim on the 10th December 2018, accompanied by an additional Written Statement on Oath and List of Additional Documents. Trial commenced in the suit on 17th January 2019. The Claimant gave evidence for himself by adopting his witness statement on oath deposed to on 18th November 2016, and his further statements made on 10th December 2018 and 29th November 2019. The Claimant was subsequently cross-examined. During the examination in chief, the Claimant tendered in evidence thirty-seven documents marked as Exhibits C1 to C37:
1. Confirmation of Appointment dated 2nd August 1988 – Exhibit C1
2. Offer of Appointment dated 6th February, 1992 - Exhibit C2
3. Assumption of Duty Certificate - Exhibit C3
4. Letter of Accelerate Promotion dated 30th November, 1994 - Exhibit C4
5. Letter of Co-ordination of Registry Unit dated 9th May, 1997- Exhibit C5
6. Letter of Appointment as Acting Registrar dated 27th October, 1997 - Exhibit C6
7. Letter of Appointment as College Registrar dated 13th November, 1998 - Exhibit C7
8. Letter of Appointment as Registrar for Second Term dated 20th July, 2010 - Exhibit C8
9. Nominal Roll of Staff of the 1st Defendant - Exhibit C9
10. Conditions of Service - Exhibit C10
11. Letters of Commendation/Appreciation - Exhibit C11(4 docs)
12. Letter of Invitation 5th February, 2016 - News flash of 31st August, 2016 - Exhibit C12
13. Letter of Query dated 13th April, 2016 - Exhibit C13
14. Claimant’s response to query dated 14th April, 2016 - Exhibit C14
15. Further Addendum to Internal Memo dated 6th June, 2016 - Exhibit C15
16. Invitation to appear before the Special Ad-Hoc Disciplinary Committee dated 13th June, 2016 - Exhibit C16
17. Invitation to appear before the Special Ad-Hoc Disciplinary Committee of Council dated 9th June, 2016 - - Exhibit C17
18. Invitation to appear before the Special Ad-Hoc Disciplinary Committee of Council dated 13th June, 2016 - - Exhibit C18
19. Letter of Compulsory retirement from service dated 31st August, 2016 - Exhibit C19
20. Certificate of Clearance of 15th August, 2016 - Exhibit C20
21. Internal Memo dated 1st February, 2016 - Exhibit C21
22. Internal Memo dated 4th February, 2016 - Exhibit C22
23. Letter of Outstanding Annual Leave dated 1st September, 2015 – Exhibit C23
24. Letter to proceed on leave dated 15th April, 2016 - Exhibit C24
25. Request to proceed on Sabbatical dated 24th March, 2016 - Exhibit C25
26. Adeyemi College of Education letter dated 13th January, 2016 (Sabbatical Appointment) - Exhibit C
27. Request to proceed on Sabbatical dated 20th April, 2016 - Exhibit C27
28. Disposal of Official Car letter dated 16th March, 2016 - Exhibit C28
29. Actuarial Valuation as at 31st March, 2007 - Exhibit C29
30. Pre-action notice dated 14th September 2016 - Exhibit C30
31. Letter of Deployment dated 4th February 2016 - Exhibit C31
32. Letter of Appointment as Director, Directorate of Passages, Linkages and Collaboration dated 14th September 2015 - Exhibit C32
33. Payslip for July 2016 - Exhibit C33
34. Lagos State Auditor-General’s Statutory Report for Year Ended 31st December 2014 - Exhibit C34
35. Letter of Permission to be Off Duty dated 01/02/2016 - Exhibit C35
36. Flash on 65 years retirement age dated 05/03/2019 - Exhibit C36
37. Executive Approval of 65years of Lagos State Government - Exhibit C37
4. The Defendants’ witness opened their case on 23rd of July, 2021. Muhideen S. Abdulqadir, the Registrar of the 1st Defendant, gave evidence on behalf of the Defendants by adopting his witness statements on oath deposed to on 18th July 2017 and 21st November 2018. He was subsequently cross-examined. The Defendants tendered eleven documents in evidence which were admitted and marked as Exhibits D1 to D11:
1. Report of the Committee to Assess the Financial Status of the College – Exhibit D1
2. Report on Audit Review of Financial Status dated March 2016 - Exhibit D2
3. Report of the Implementation Committee - Exhibit D3
4. Conditions of Service - Exhibit D4
5. Invitation to appear before the Special Ad-hoc Disciplinary Committee of Council on Staff Matters - Exhibit D5
6. Report of the Special Ad-hoc Disciplinary Committee of Council - Exhibit D6
7. Minutes of the 5th Emergency Meeting of the Governing Council held on 10/08/2016 - Exhibit D7
8. letters for requisition of funds and payment vouchers dated 15th March, 2013, 27th March, 2013, 3rd June, 2013, 12th June, 2013, 26th July, 2013, 5th August, 2013, 16th August, 2013, 22nd August, 2013, 25th October, 2013 and 5th November, 2013 - Exhibit D8
9. Record of remittance of the Claimant’s pension into his pension account – Exhibit D9
10. Decision extract of the 1st 2016 Regular Meeting of the Governing Council held on 11th April, 2016 – Exhibit D10
11. The Circular No. 118 Dated 13th October, 2005 – Exhibit D11.
CASE OF THE CLAIMANT
5. The Claimant was with the Civil Service Commission of Lagos State from 1987 to 1992 and was later transferred to the 1st Defendant via an offer of employment dated 6th February 1992 as Senior Assistant Registrar (SAR). Thereafter, the Claimant was made the Registrar vide letter dated 13th November 1998 until 6th July 2010 when by letter of 20th July 2010 the employment of the Claimant as the Registrar of the 1st Defendant was tenured for another period of five (5) years.. The Claimant worked for seventeen (17) years as the Registrar without blemish and was never issued with any query. The 1st Defendant became an enviable and No. 1 College of Education in Nigeria and issued series of letters of commendation to the Claimant. At the expiration of his tenure, the 1st Defendant made the Claimant the Deputy Registrar. The Claimant was issued a letter of invitation dated 5th February 2016 from the 1st Defendant informing him that the 2nd Defendant has constituted a Committee to assess the financial status of the College and consequently invited the Claimant to appear before the said Committee on 10th February 2016 to provide clarifications on some issues pertaining to the Claimant’s activities as the Registrar of the College. The Claimant attended the panel and objected to the constitution of the Committee as a result of which the Committee agreed to refer the matter to the 2nd Defendant. On 13th April 2016, the Claimant was issued a query and by letter dated 14th April 2016, the Claimant responded to the query and answered all the issues demanded from the Claimant. By letter dated 9th May 2016 the Claimant sent an addendum to the query wherein he stated that all the monies given to him for conferences had been duly retired. Copies of the receipts and certificates of attendance were sent to the 1st Defendant as attachment to the addendum. The Claimant states that the Lagos State Sectorial Report published in 2014 pages 74 to 75 admitted that the Claimant had retired all the monies given to him for conference. The Claimant received another invitation dated 11th May 2016 from the 1st Defendant for him to further appear before the Special AD-Hoc Disciplinary Committee of 1st Defendant on May 19th 2016 to give clarification on the monies given to the Claimant for the conferences which, according to the Claimant, he had already responded to. The Claimant appeared before the Ad-Hoc Committee on 19th May 2016 and 25th May 2016 and further re-affirmed his position. On the directives of the Ad-Hoc Committee, the Claimant by further addendum dated 6th June 2016 forwarded to the 1st Defendant the evidence of his attendance at the alleged conferences in form of receipts and certificates. By letter dated 31st August 2016 the Claimant was informed that the 2nd Defendant considered the report of its Staff Disciplinary Committee and found the Claimant culpable of the following offences:
i. That the Claimant misappropriated the 1st Defendant’s fund to the tune of N468,000.00 only,
ii. That the Claimant claimed not to know that Mr. Anrinle who is a staff of the 1st Defendant was the prime owner of Rillanded Nigeria Ltd and was also involved in the production of College Identity Cards,
iii. That the Claimant served the 1st Defendant as Registrar for seventeen years without mentoring a competent successor,
iv. That the Claimant was receiving salary for doing nothing since his resumption from sabbatical, and
v. That the Claimant signed an M.O.U on behalf of the 1st Defendant without writing his name or that of the Provost of the 1st Defendant.
6. The Defendants further in the said letter of 31st August 2016 asked the Claimant to proceed on compulsory retirement with effect from 10th August, 2016. The Claimant states that the conditions upon which he was compulsorily retired from the service of the 1st Defendant were not known to any law in Nigeria. That the offences for which he was retired were not made an issue either in the letters inviting him to appear before the two Committees of the 2nd Defendant; nor in the query issued to him. The Claimant states that he knows Mr. Anrinle as a staff of the 1st Defendant but does not know him to be the prime owner of Rillanded Nigeria Ltd. He states that he groomed Successors; such as Mr. Olumuyiwa Coker and the current Acting Registrar, Mr. S. A. O Muhideen who are among the Deputy Registrars, trained and mentored by him. The Claimant further states that he carried out all the duties assigned to him by the Defendants as contained in his letter of appointment. On the issue of signing of MOU without writing his name, the Claimant states that he signed the M.O.U in his official capacity as the Registrar of the 1st Defendant in accordance with the best practices common to public and corporate institutions/organizations and that the Defendant did not allege that the Claimant acted ultra vires his powers in signing it. On the issue of misappropriation of the sum of N468,000.00 (Four Hundred and Sixty Eight Thousand Naira) , the Claimant states that the 2nd Defendant did not confront him with the fresh purported allegation or offence as he had responded to all issues required by the Defendant. The Claimant states that the 1st Defendant did not comply with section 32 of its Law applicable to the contract of service of the Claimant, the Senior Staff Conditions of Service, and the Public Service Rules of Lagos State applicable to him. He states that as a senior staff of the Defendants who had served the Defendants meritoriously for thirty one (31) years, he is entitled to three (3) months’ notice or three month salary in lieu of notice as contained in the letter of appointment and the Public Service Rules before he can be retired in accordance with the terms of his conditions of service with the Defendants.
7. The Claimant states further in his case that as a mixed employee, by virtue of Clause 0.18 of the Senior Staff Conditions of Service; the 1st Defendant as his last place of work, he is entitled to gratuity to be calculated by the 1st Defendant from 5th March 1985 to 31st March 2007 to the tune of N20,277,533.00 which calculation is subject to an upward review by the 1st Defendant. The Claimant states that he is entitled to gratuity from 1st April 2007 to 31st December 2007 based on the 1st Defendant’s unremitted 7.5% of the basic salary contribution to the pension scheme in the sum of N205,476.75 and that his basic salary at the material time of compulsory retirement was N304,410.00 and the sum of N2,465,748.00 being the 7.5% unremitted gratuity/pension of his basic salary of N304,410.00 amounting to the sum of N22,831.00 per month from 1st January 2008 to 31st December 2016, and the sum of N872, 144.20 being the 7.5% unremitted gratuity/pension of his basic salary of N304,410.00 amounting to the sum of N22,831.00 per month from 1st January 2017 to 5th March 2020 the expected date of his retirement. The Claimant states that he is entitled to salaries and other benefits from 10th August 2016 being the date of compulsory retirement to the date of expected retirement on 5th March 2020 in the sum of N20,069,126.00.
8. By letter dated 13th July 2015, the Claimant informed the 1st Defendant of his accumulated annual leave of 357 days and the 1st Defendant by letter dated 1st September 2015 noted the Claimant’s approved annual leave of 357 days. By letter dated 15th April 2016, the 1st Defendant informed the Claimant to proceed on part of his annual leave of 150 days leaving 225 days leave un-utilised by the Claimant as at the time the Claimant was retired compulsorily. The Claimant states that in accordance with his conditions of service and Rule 120223 of the Lagos State Government Public Service 2015, he is entitled to the sum of N3,232,360.20 for the 225 days (6 months 9 days) converted to cash at the rate of N468,458.00 being the Claimant’s monthly salary. He states that by Clause 13 of Chapter VII of his condition of service with the 1st Defendant, he is entitled to one year sabbatical leave. The 1st Defendant by letter dated 24th March 2016 granted the Claimant’s application to proceed on One year Sabbatical at the Adeyemi College of Education, Ondo. The Adeyemi College of Education letter dated 13th January 2016 offered to the Claimant appointment as a visiting Deputy Registrar for one year, on a salary of N468,458.20 being the current salary of the Claimant. The Claimant accepted the offer of appointment from Adeyemi College of Education only for the Defendant to step down on the earlier approval granted to himto proceed on the sabbatical leave by a letter dated 20th April 2016. The Claimant states that he is entitled to payment by the Defendants of the sum of N5,621,496.00 he would have received for the one year period of sabbatical leave.
9. Further, by letter dated 16th March 2016, the 1st Defendant informed the Claimant that the Subaru Legacy Car Registration Number LA/49A46 which was used by the Claimant as official vehicle as the Registrar of the 1st Defendant be boarded to the Claimant at Government approved depreciation and disposal rate of N420,000.00 after discounting it at 10% annual depreciation for 5 years in accordance with the Government Circular Ref. No. CRS/HOS/15/Vol. 1/001 on Rules on Personalised Directors’ Vehicle and Boarding Procedures. However, the 1st Defendant thereafter withdrew the car causing the Claimant to lose the sum of N2,100,000.00 being the value of the car at the time it was withdrawn from him. The Claimant states that the Defendants acted ultra vires their powers by retiring him compulsorily as against Clause 3, Chapter 3 of the Senior Staff Conditions of Service applicable to him as compulsory retirement was not stated therein as a disciplinary measure.
CASE OF THE DEFENDANT
10. It is the case of the Defendant that the Claimant was invited to appear before a committee constituted by the 2nd Defendant to assess the financial status of the College and other related matters and that the Claimant refused to furnish information to assist the Committee. As a result, the Claimant was issued a query. The 2nd Defendant at its 2nd Emergency Meeting held on the 4th of March, 2016, deliberated on the reports of the committee constituted to assess the financial status of the 1st Defendant and a Committee was constituted to develop a plan for the implementation of the recommendations as stated in the report. The Implementation Committee called for an Audit of the financial operation of the 1st Defendant and a team of Auditors conducted an Audit review of the financial operations of the 1st Defendant for the period 2011 to 2015. The report on audit review of the financial operations of the 1st Defendant revealed the following:
a That the funds disbursed to staff (including the Claimant) for conferences and seminars were not accounted by documentary evidence to confirm the attendance and participation in those alleged conferences.
b That same set of staff (including the Claimant) were granted multiple approvals (inclusive of funds) to attend conferences within a year.
11. The recommendations of the Implementation Committee were to the effect that all staff/officers to whom funds were disbursed for the purpose of attendance of conferences and seminars should be made to account for such funds and show evidence of attendance of the conferences and seminars. Queries were issued to affected staff including the Claimant. The Defendants state that the Claimant carefully avoided and neglected to address the issues raised in the said query; or neither adduced any evidence nor offered convincing explanations to substantiate his assertions and claims as contained in his response. The 1st Defendant received a letter from the Claimant, titled addendum and dated 9th May 2016 and it was the only time the Claimant produced evidence for the attendance of conferences for which funds were given to him. The Claimant vide his letter dated 14th April, 2016 stated that receipts and evidence of attendance of conferences and programs for which the College disbursed funds to him were not required to be retried and that he could not remember which of the Conferences were retired or not retired. The Defendants state that the Claimant’s letter dated 9th May, 2016 failed to disclose:
i The name or office of the staff through whom the receipt were purportedly retired.
ii The particulars of the conferences and workshops that were purportedly attended.
iii The period when the conferences in question were retired
The Defendant gives the particulars of the conferences and programs the Claimant was required to produce evidence of his attendance as:
|
S/N |
DATE |
AMOUNT |
PURPOSE |
|
1 |
27th March, 2013 |
|
Official visit to the Tertiary Institution Trust and TRC of Nig. |
|
2 |
19th June, 2013 |
|
For attendance at Business Law conference. |
|
3 |
5th Aug, 2013 |
|
For attendance a 4 days workshops at Chida Hotel Abuja. |
|
4 |
19th Aug, 2013 |
|
Meeting of Committee of Provosts of College of Education. |
|
5 |
4th Nov, 2013 |
|
To attend 2013 National Conference of public administrators 6th – 9th November 2013 at Merit House Abuja. |
|
|
GRAND TOTAL |
|
|
The Claimant only produced evidence for the following events:
|
S/N |
DATE |
AMOUNT |
PURPOSE |
|
1 |
27th March 2013 |
|
Official visit to the Tertiary Institution Trust and TRC of Nig. |
|
2 |
19th June, 2013 |
|
For attendance at Business Law conference. |
|
4 |
19th August, 2013 |
|
Meeting of Committee of Provosts of College of Education. |
|
|
GRAND TOTAL |
|
|
12. The Defendant states that the Claimant failed to account for the remaining sum of N468, 000.00 disbursed to him for the attendance of conferences neither did the Claimant produce evidence of attendance of the conferences, workshops and programs for which the N468, 000.00 was released to him by the 1st Defendant. The Defendants further state that the conducts of the Claimant for which disciplinary actions were taken against him amount to gross misconduct under Chapter 4, Section 4, Rule 040502 of the Lagos State Government Public Service Rules and Chapter 3, Section 11 C, I (m) of the Conditions of Service of the College. The Defendants state that they complied with the provisions of Section 32 of the enabling law of the 1st Defendant and Chapter 3 of the Conditions of Service of the College by the following acts:
i. By a letter dated 13th April, 2016 the Claimant was issued query, which contained notice of the allegations against him.
ii. The Claimant responded to the said query vide a letter dated 14th April, 2016.
iii. The Claimant was invited to appear before a Special Ad-hoc Disciplinary Committee of Council on staff Matters charged with the investigations of the allegations against the Claimant vides a letter dated 11th May, 2016.
iv. The Claimant did appear before the Special Ad-hoc Disciplinary Committee of Council on staff Matters and made representation albeit unsatisfactorily.
v. The 2nd Defendant considered the report of the Special Ad-hoc Disciplinary Committee and found the Claimant culpable of Gross misconduct. Consequently it directed disciplinary measure against the Claimant in accordance with the relevant laws, rules and regulations.
vi The Claimant was notified of the disciplinary measure taken against him via a letter dated 31st August, 2016.
13. The Defendants state further that the Claimant is not entitled to any notice, as the disciplinary action taken against him was in consequence of his culpability for gross misconduct against the 1st Defendant which is in line with the letters of offer of appointments dated 6th February, 1992 and 13th November, 1998. That the Claimant’s pension for the years 2008, 2009, 2010, 2011, 2012 and 2016, had been remitted into Claimant’s pension account. That the Claimant is not entitled to any gratuities, pensions, salaries or any other benefits from the 1st Defendant after his compulsory retirement on the 10th August, 2016. That the Lagos State Government had since the 13th of October, 2005 prevailed on the 1st Defendant not to entertain any request converting any deferred or unutilized leave to cash and such unutilized leave can only be converted to terminal leave. That 2nd Defendant directed that the one year sabbatical leave granted to the Claimant on the 24th March, 2016 be stepped down in order to enable the Claimant respond and defend himself on the allegation of financial impropriety against him. That the Claimant did not pay the sum of N420, 000.00 being the discounted price of the vehicle, so the official vehicle remained the property of the 1st Defendant. In counterclaim, the Defendants state that the Claimant had failed, refused and neglected to refund to the 1st Defendant the N468,000.00 unretired money allegedly used to attend conferences.
CLAIMANT’S REPLY TO STATEMENT OF DEFENCE/COUNTERCLAIM
14. The Claimant in his Reply to the Statement of Defence stated that the only query he received was for failure to present receipts and certificates of attendance at conferences he attended in 2013 for which funds were collected. He states that he had forwarded the receipts and certificates of attendance to the Defendants. The Claimant states that the Lagos State Sectoral Report published in 2014 states that all funds for conferences for the period 2013 had been retired. He states that the details of the workshops which he was alleged not to have retired were not indicated in the query given to him and he was never given opportunity to defend himself in respect of the alleged offences relating to the sum of N468,000.00 for which he was purportedly compulsorily retired. He states that none of the said offences has been proven against him or any other offence whatsoever. That Circulars of Lagos State Government are not automatically and without more, applicable as a domestic rule of the college. Such circulars require formal adoption/domestication (by the Governing Council of the College) as they do not have direct applicability. Further, that the Sabbatical Leave was stepped down even before the Claimant was asked to defend himself on the allegations of financial impropriety. That the Defendant unlawfully revoked the sale of car even though the sale was lawful and valid as ownership of the vehicle had clearly passed by virtue of offer and acceptance.
ARGUMENTS ON BEHALF OF THE DEFENDANTS
15. The Defendants first addressed an Objection raised by the Claimant with respect to exhibits D5, D8 and D11 as being public documents requiring certification as such. The Defendants submit that exhibits D5 and D8 are on the face of it duly certified by the Registrar and Bursar of the 1st Defendant pursuant to their powers as provided under the enabling law of the 1st Defendant and as custodians of the said documents. They argue that the Claimant tendered the document and it was admitted as exhibit C17; therefore, there was no basis for the Claimant’s objection. On exhibit D11, the Defendants argue that though it is not certified on the face of it, even though it is a public document; it forms part of documents described as “documents printed by Order of the Government” and as such admissible pursuant to Section 106 (a) iv of the Evidence Act 2011.
16. Thereafter, the Defendants set out three issues for determination, as follows:
1. Whether from the circumstances of this case, the evidence of the Claimant can be relied upon by this Honourable court in granting his reliefs.
2. Whether or not from the totality of the evidence before the Honourable Court (oral and documentary) and the general circumstance of this matter, the Claimant has been able to prove his case to entitle him to the reliefs sought against the Defendants
3. Whether the Defendants/Counter Claimants have been able to prove their counter claim as against the Claimant.
17. On issue one – the Defendants argue that the testimonies of the Claimant is fraught with inconsistencies and contradictions and should be discountenanced. That at paragraph 19 of the Witness Statement on Oath deposed to on the 18th day of November 2016, the Claimant stated that upon invitation by the Committee set up by the 1st and 2nd Defendants to assess the financial status of the College (1st Defendant) that he honoured the invitation and “after signing the attendance register, objected to the constitution of the committee as a result of which the committee agreed to refer the matter to the 2nd Defendant.” That in direct contradiction, the Claimant stated in paragraph 5 of his further Witness Statement on Oath deposed to on the 10th day of December 2018 that he “honoured the invitation, attended the meeting, signed the attendance register, participated in the proceedings of the committee and made suggestions on issues raised and further answered all questions put to him.” That this is precisely the same narrative that the Claimant presented when he testified during cross examination that he appeared before the committee, registered and stayed throughout the proceedings. That in paragraph 13 of the Claimant’s Further Witness Statement he claimed that he was never issued any query in respect of the alleged offences for which he was compulsorily retired; that is, the misappropriation of College funds to the tune of Four Hundred and Sixty Eight Thousand Naira (N468,000), contrary to his statement in paragraph 24 that by a letter dated 11th May 2016 he was asked to give clarification on certain sums including the sum of N200,000 for 06/08/13 and N268,000.00 for 04/11/13 which cumulatively add up to the said Four Hundred and Sixty Eight Thousand Naira N468,000.
18. On issue two, whether or not from the totality of the evidence before the Court and the general circumstance of this matter, the Claimant has been able to prove his case to entitle him to the reliefs sought against the Defendants; the Defendant made submission over the following four items:
1. Issue of Claimant’s appearance at the Committee stage.
2. Issue of retirement of funds.
3. Issue of query, investigation and procedure
4. Issue of retroactive retirement
19. On the issue of Claimant’s appearance at the Committee stage, the Defendants argue that Section 6(1 and 2) and Section 10 (r) of the law empowers the Defendants to manage and superintend the general affairs of the College (1st Defendant). That the Defendants only invited the Claimant for clarification which is within the knowledge of the Claimant; however, the Claimant simply showed up to tell the Committee that he could not appear before them. On the issue of retirement of funds, the Defendants argue that there is no proof of the Claimant attending the said conferences. On the issue of the “Query, Investigation and Procedure”, the Defendants argue that they complied with The Claimant’s principal letter of employment dated 6th February, 1992 (Exhibit C2), the Conditions of Service guiding the 1st Defendant (Exhibits C10 and D4) and the College of Education Law Cap L16, Laws of Lagos State of Nigeria (the Law establishing the 1stDefendant) on the procedure for removal of administrative staff of the 1st Defendant and Section 10 (n) of the same law and Chapter 3, Section vii (c) ii (b) at page 45 and 46 of the Conditions of Service of the 1st Defendant empowering the Council to “compulsorily retire” an employee of the 1st Defendant if found guilty of gross misconduct. The Defendants submit that holistic analysis of the laws will show that the 1st and 2nd Defendants followed due process and came to an informed decision to compulsorily retire the Claimant. The Defendants also submit that the Claimant was granted fair hearing, and that exhibit C19, the principal reason for the compulsory retirement of the Claimant is listed as number 1 for which the Claimant was given opportunity to present his defence. On the issue of retroactive retirement; the Defendants argue that Exhibit C19 complied with section 33(3) of the College of Education Law Cap L16. That it merely communicated the date of the decision of Council to retire the Claimant on the letter, and the fact that the decision of the Council of 10th August 2016 was delivered to the Claimant on the 31st of August 2016 does not detract from the said decision.
20. On Claimant’s reliefs founded on gratuity, the Defendants argue that the Claimant failed to comply with Section 46 (1) of the Lagos State College of Education Law which mandatorily requires that any person who intends to sue or commence legal action against the 1st Defendant must first give one month written notice of intention to do so including all the details of the prospective action. They submit that Exhibit C30 which is the Pre-action Notice served by the Claimant on the Defendants did not include any reliefs on “gratuity payment”. The Defendants submit that on account of that; this Court lacks jurisdiction to adjudicate or entertain gratuity payment. The Defendant relies on the case of Cotecna Int’l Ltd v Churchgate (Nig) Ltd (2010) 18 NWLR (Pt 1225) 346. They argue further that assuming but not conceding that this Court has the jurisdiction to adjudicate on the Claimant’s reliefs for payment of gratuity and pensions, the only entitlement of the Claimant which remains unpaid is the sum of Nineteen Million, Seven Hundred and One Thousand, Six Hundred and Sixty Six Naira (N19,701,666.00) being his gratuity and pensions from 5th March, 1985 to 31st March 2007 (under the old pension scheme and that every other claim has no basis whatsoever.
21. On issue three; whether the Defendants have been able to prove their counterclaim against the Claimant; the Defendants argue that the Claimant has failed to retire the sum of Four hundred and Sixty Eight Thousand Naira (N468,000.00) as demanded by the 2nd Defendant following his inability to provide any evidence of use of the funds. The Defendants argue that in proof of the funds released to the Claimant, they tendered Exhibit (D8) which are vouchers showing the funds released to the Claimant for the conferences specified in exhibit (Exhibit C16) which was not retired. The Defendants argue that the Claimant after admitting in his initial witness statement on oath in paragraphs 24, 25, 28 and 29 specifically stating that he had submitted evidence of the retirement of the monies collected in the sum of N957,000.00 which included the sum of Four hundred and Sixty Eight Thousand Naira (N468,000.00) for the attendance of a 4 day workshop at Chida Hotel Abuja (5th August, 2013 for N200,000) and the 13th National Conference of Public Administrations between (6th to 9th November 2013 for N268,000) and thereafter claims that the vouchers are “fraudulent” on the basis that the voucher for N200,000.00 (coding date 5th August 2013 with the specific narration “ Workshop at Chida Hotel” which clearly shows the payee name as Barr Bola Disu (the Claimant) was received by one Mamud M.S and applied for by one Mojeed Babatunde and the same Claimant who also claimed that the voucher for N193,000 with coding date 19th August (with narration 68thCommittee of Provost of College of Education) was also fraudulent as it was also applied for by the same Mojeed Babatunde and received by Mamud M.S. That Exhibit C15 shows proof of attending that exact conference in paragraph XII and XIV with a Receipt and a certificate of attendance issued to the Claimant.
ARGUMENTS ON BEHALF OF THE CLAIMANT
22. On Claimant’s Objection to the Defendants’ tendered documents, the Claimant argued that Exhibit D5, D8 and D11 are public documents and that by virtue of section 90(1)(c) of the Evidence Act, it is only the certified true copy that can be tendered in evidence. The Claimant argues that what the Defendants posit to be certification are mere signatures of the Ag Registrar and Bursar and cannot amount to certification of a true copy as required in section 104 of the Evidence Act. He submits that Exhibit D11 is a circular of the Lagos State Head of Service to certain parastatals and was not printed by Order of the Lagos State Head of Service.
23. The Claimant formulated five issues for determination in his final written address, to wit:
(i) Whether the contract of employment of the Claimant with the 1st Defendant is protected by statute or has statutory flavor?
(ii) Whether the Claimant was validly retired from the service of the 1st Defendant in accordance with the statutory provisions setting up the 1st Defendant and the conditions of service?
(iii) Whether the retroactive retirement of the Claimant by the 1st Defendant was proper in law?
(iv) Whether the Claimant was given fair hearing in respect of the offences contained in the Claimant’s letter of compulsory retirement, exhibit C19 before he was compulsorily retired?
(v) Whether on the basis of the credible evidence adduced by the Claimant, the Claimant is entitled to the reliefs sought?
24. On whether the contract of employment of the Claimant with the 1st Defendant is protected by statute or has statutory flavour; the Claimant argues that his Claimant’s contract of employment with the 1st Defendant has statutory flavour, and the Defendants are expected to comply strictly with the relevant laws and regulations in dealing with his employment with the 1st Defendant. The Claimant relied on the case of Central Bank of Nigeria v Mrs. Agnes M. Igwillo [2007] 14 NWLR. He argues that the Defendants failed to comply with section 33 of the Law and Chapter 3 of the Conditions of Service (Exhibit C10) which provides for the procedure for the removal of a senior staff of the 1st Defendant.
25. On issue two “whether the Claimant was validly retired from the service of the 1st Defendant in accordance with the statutory provisions setting up the 1st Defendant and the conditions of service”; the Claimant argues that neither the Disciplinary Committee of the 1st Defendant nor the 2nd Defendant had powers to try him for the alleged offence of misappropriation of funds and other offences which formed the basis of his retirement. He argues that he ought to have been tried by the regular courts for such offences before the Defendants can take any disciplinary actions against him. He argues that by that, the Defendants acted ultra vires their powers when they tried and found him culpable for the offences listed in the 1st Defendant’s letter of compulsory retirement. Claimant relies on the case of U.N.T.H.M.B v. Nnoli (1994) 8 NWLR (363) 376 AT 403 and Garba v University of Maiduguri (1986) 1 NWLR (PT. 18) 550. The Claimant submits that the disciplinary procedures which could result in the compulsory retirement of an employee of the 1st Defendant was not stated in the Conditions of Service (exhibit C10) but that Clause 3.3(vii)(2) of exhibit C10 specifies the disciplinary procedures for the termination/dismissal of an employee of the 1st Defendant and not the other way round. The Claimant further submits that for the decision of the Defendants retiring the Claimant compulsorily to accord with the rules of fair hearing, the Claimant must not only be given prior sufficient information on the five offences/misconducts; he must as a matter of necessity be given opportunity to make representation to the offences. He argues that in the instant case, the 2nd Defendant and its Staff Disciplinary Committee did not confront him in writing with the five offences in their letters of invitation; neither did they give him reasonable opportunity to make representations to the 2nd Defendant and the Special Ad-Hoc Disciplinary Committee. According to the Claimant, these lapses render both the reports of the proceedings of the 2nd Defendant (Exhibit D7) and the Report of the Staff Disciplinary Committee (Exhibit D6) a nullity. Refers to Federal Civil Service Commission v. Laoye (1989) 8 NWLR (PT. 106) 652 AT 727
26. On Issue three - whether the retroactive retirement of the Claimant by the 1st Defendant was proper in law – the Claimant argues that exhibit C19 dated 31 August 2016 was served on him sometime in September 2019 contrary to the provisions of Clause 3.3(vii)(2) of the Conditions of Service and section 32 of the Law. He referred to the case of Abenga V. B.S.J.S.C (2006) 14 NWLR (PT. 1000) 610 AT 620, and Onakoya v. WAEC (Unreported) Appeal No. CA/L/648/2009 delivered by the Court of Appeal on 20th March 2014 which established that a retirement takes effect from the date it was issued and case of N.I.W.A & ANOR V. IBRAHIM & ORS (2019) LPELR-47825(CA). The Claimant argues that since he has proved that his retirement by the Defendants is illegal, null and void, that he ought to be returned to status quo.
27. On the counterclaim, the Claimant submits that considering the Defendants’ counter-claim which is premised on the fresh and later allegation of misappropriation of the sum of N468,000 coupled with the fact that the particular vouchers which the Defendants brought forward to the Court were not signed by the Claimant but another person, and not the vouchers which the Claimant had, further re-affirms the Claimant’s position that the Defendants are tendering fraudulent documents before the Court.
THE DEFENDANTS’ REPLY ON POINT OF LAW
28. In Reply on Points of Law, the Defendants replied that the issue of the Claimant’s employment being statutorily flavoured was manufactured and imported by the Claimant’s Counsel as the Claimant never pleaded it nor did the Claimant canvass any argument or point on the issue during trial. The Defendant submits that this goes to no issue and should be discountenanced. The Defendant argues that in the event that the Court decides to consider the argument raised on the issue, that the Claimant knows that his employment has no statutory inkling and admitted this to the Court. The Defendants argue that the case of Chief (Mrs) Flora Folake Onakoya v The West African Council, CA/L/648/09 which judgment the Claimant himself forwarded to this Court supports the Defendants’ case as the Claimant himself gave evidence in paragraph 2 of his witness statement on oath that up until his compulsory retirement in 2016, he was a “Deputy Registrar” in the 1st Defendant which is not created or mentioned by the Lagos State College of Education Law. On the issue that the Claimant was not informed in writing the offence he was compulsorily retired for, the Defendants state that the combined effect of all the invitations, appearances, responses and minutes clearly show that the Claimant was indeed given adequate time, notice and opportunity to be heard before the decision to compulsorily retire him was taken.
DECISION
29. I have considered the processes filed in this matter, the evidence led and the arguments of Counsel. I adopt the following issues for determination:
(i) Whether exhibits D5, D8 and D11 are admissible in evidence in this suit.
(ii) Whether the Claimant was validly retired from the service of the 1st Defendant in accordance with the statutory provisions setting up the 1st Defendant and the Conditions of Service?
(iii) Whether the Claimant is entitled to his reliefs.
(iv) Whether the Defendants are entitled to their counter claim.
Issue (i)
30. During trial, the Claimant objected to the admissibility of the documents now marked as exhibits D5, D8 and D11 on the ground that they are public documents; and should be certified in compliance with section 104 of the Evidence Act. I have taken a close look at the documents. Exhibits D8 is duly certified by the Bursar, with his name, signature, stamp and date with the words ‘Certify True Copy’. I therefore find that exhibit D8 is duly certified and properly admitted. Exhibit D5 also has the certification written, signed and dated. The document is a letter from the Defendant to the Claimant duly acknowledged. The Claimant also tendered this same document and it was admitted as exhibit C17. The basis of this objection is therefore not clear to me. In addition, both documents were also duly pleaded and frontloaded and are both relevant to the facts in issue of this case. The objection is therefore overruled.
31. With respect to Exhibit D11, the Defendants admit that the said exhibit is a public document and is not certified on the face of it. They however argue that it forms part of documents described as “documents printed by Order of the Government” and as such admissible pursuant to Section 106 (a) iv of the Evidence Act 2011. The said provision provides for proof of documents purporting to be printed by Order of Government. I have considered exhibit D11. It is a Circular issued by the Office of the Head of Service. I do not see how it is a document printed by Order of Government. However, I find that the contents of exhibit D11 was pleaded and put in evidence by the Defendants. The Claimant did not challenge the existence or content of the document. The Claimant rather recognised the document and its content; and stated that “Circulars of Lagos State Government are not automatically and without more, applicable as a domestic rule of the college. Such circulars require formal adoption/domestication (by the Governing Council of the College) as they do not have direct applicability”. This document is pleaded and relevant in the determination of this suit. Though not certified, I am inclined to agree with the Defendants, to take judicial notice of this document, based on the tacit admission of the Claimant, as to the existence of exhibit D11. I am convinced that this document ought to be retained as a result of the reasons stated above and is hereby retained.
32. Assuming this is not enough, I am equally convinced that it is in such a circumstance as this that the National Industrial Court Act 2006 in section 12 provides that this Court may depart from the Evidence Act, in the interest of justice. I am convinced that justice will not be served by expunging relevant documents which will help this Court in resolving the disputes between the parties. I therefore depart from the Evidence Act and retain exhibit D11 as admitted in the interest of justice. All the objected documents are hereby sustained.
Issue (ii)
33. Issue two is whether the Claimant was validly retired from the service of the 1st Defendant in accordance with the statutory provisions setting up the 1st Defendant and the conditions of service. Judging from the Reliefs sought in this case, this Court has not been called to conduct an investigation on the allegations of gross misconduct leveled against the Claimant. This Court is principally called to determine whether the manner by which the decisions being challenged was reached is according to the contract regulating the Claimant’s employment and according to law. The unfettered judicial discretion of the Court is only exercised when statutory institutions fail to carry out the statute and tort procedure set out for removal of its staffs. See Governor Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292 and Olaniyan v. University of Lagos (1985) 2 NWLR SC 599.
34. The Claimant complained of denial of fair hearing in the manner the Defendant compulsorily retired him. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause- Ariori & Ors v. Muraimo Elemo & Ors (1983) 1 SC 13 at 24. Per Obaseki JSC - the right to fair hearing under Section 36(1) of the 1999 Constitution of Nigeria as applicable in the determination of civil rights and obligation of people also envisages a trial conducted according to all legal rules formulated to ensure that justice is done to all parties.
35. The law is well settled that where a contract of service enjoys statutory flavour, an employer wishing to terminate the contract must be meticulous in complying with the procedure set out in the relevant Statute or Rules thereunder. Any deviation from the stipulated procedure would render any acts done in respect thereof invalid and liable to be set aside. See: Federal Polytechnic, Ede &Ors v. Alhaji Lukman Ademola Oyebanji (2012) LPELR-19696(CA), Iderima v. R.S.C.S.C. (2005) All FLLR (285) 431 at 450 D – E. As stated by the Court of Appeal in UBA v. Oranuba (2014) 2 NWLR PT 1390 p. 1 @10 (Per Iyizoba, JCA):
The right to be heard is such an important radical and protective right that the Courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard.
Where an employer removes an employee for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. In the case of Pam v. Mohammed (2008) 16 NWLR (PT 1112) 1 SC. Per Tobi JSC stated that:
The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. The fundamental basis underlying the principle of fair hearing is the doctrine of audi alteram partem which means to hear the other side.
36. It is the law that an employer is free to determine the employment of its employee but it must be done according to contract or according to law (where founded on a statute). Where the employment has statutory flavour, as in this case, then the procedure in the law must be complied with. Though the Defendants challenged the Claimant’s use of the term that his employment has statutory flavour allegedly for the first time in his final written address, I find that both parties have copiously referred to provisions of statutes in challenging (on the part of the Claimant) and justifying the processes leading to the retirement of the Claimant (on the part of the Defendants). This is found in Claimant’s reliefs and arguments and Defendants’ defence. For instance, the Defendants stated that:
In reaction to paragraph 33 of the statement of facts, the Defendants deny all the averments and claims as contained therein and state that the conducts of the Claimant for which disciplinary actions were taken against him amounted to Gross misconduct under Chapter 4, Section 4, Rule 040502 of the Lagos State Government Public Service Rules and Chapter 3, Section 11 C, I (m) of the Conditions of Service of the College.
37. While I agree with the Defendants’ argument that “the fact that an employee is employed by a statutory body, does not mean that the conditions of service of the employee is covered by statute”, the Defendant addressed the absence of the post of Deputy Registrar’ on which the Claimant was retired from the Law establishing the 1st Defendant. I do not see this action as challenging the retirement of the Claimant from the ‘office’ of Deputy Registrar; rather, it challenges the retirement of the Claimant as ‘staff’ of the 1st Defendant. I find that, by the insistence of the Defendants that the Claimant was retired according to statute; the Defendants recognise that the employment of the Claimant is covered by the Lagos State College of Education Law, and the Lagos State Public Service Rules 2015.
38. Further, the Claimant gave evidence via exhibit C2 which shows that he was employed as Senior Assistant Registrar (SAR), USSII Step 1. See also exhibit C3. In exhibit C4, the Claimant was promoted, via accelerated promotion to the post of Principal Assistant Registrar. The conditions in exhibit C2 was made “without prejudice to other relevant provisions of the Conditions of Service, the Enabling Edict(now Law), and any other regulation that may from time to time be made.” The fact that he rose to become the Registrar and later reverted to Deputy Registrar, does not affect the nature of his (original) employment. I therefore do not accept the argument that the status of the Claimant’s employment is introduced for the first time, in the Claimant’s final written address. I can see, from the evidence before the Court, that the 1st Defendant is a creation of statute, having been set up pursuant to the provision of section 1 of the Lagos State College of Education Law, Chapter L16, Laws of Lagos State 2003. Section 1 of the Law provides as follows:
“1. There is established the Lagos State College of Education (referred to in this Law as ‘the College’).
The College is a body corporate with perpetual succession and a common seal and has power to sue and be sued in its corporate name and to acquire, hold and dispose of movable and immovable property for the purposes of its functions under this Law.’’
39. By virtue of sections 3(1)(r), 10(j), (l), (m) and (n) of the Law, the College and the Council have powers to appoint such other persons to be officers and servants of the College/Council and to discipline the staff so employed. The Claimant was employed by the 1st Defendant pursuant to the powers vested in the 1st Defendant by the provision of section 3(1)(r) and section 10(j), (l) and (m) of the 1st Defendant’s Law. Section 10(n) of the Law empowers the 1st Defendant to discipline its academic and administrative staff including the Claimant. Section 10(n) provides that the Council will exercise powers of removal from office and other disciplinary control over the academic staff, the administrative staff, and all other staff in the College. The procedure for the removal of the senior staff of the 1st Defendant to which category the Claimant belongs to are specified in section 33 of the Law and Chapter 3 of the Conditions of Service. Aside from the above, I can also see that the Conditions of Service of the 1st Defendant (exhibit C10) was made pursuant to the Law setting up the 1st Defendant. Clause 1 of the Conditions of Service provides as follows;
“These regulations are made by the Governing Council of Lagos State College of Education, (LACOED) under section 8(d) and 15 of Lagos State College of Education Edict No. 20 of 11th July, 1986 or any amendment thereof, for the time being in force, shall come into operation on the 1st of October, 1989”
40. Clause 2(a) of Chapter I, Clause 6(a) to (c), (f) and (g) of Chapter II, and Clause 3 of Chapter 3 of the Conditions of Service (exhibit 10) also made extensive provisions on the procedures for the appointment and discipline of the employees of the 1st Defendant including the Claimant. Clause 3 of Chapter 3 of the Conditions of Service, exhibit C10, made extensive provision on the procedures and grounds for termination of the employment of the employees of the 1st Defendant including the Claimant in accordance with the provisions of section 32 of the Lagos State College of Education Law 2003. In view of the fact that the procedures for employment and discipline of the Claimant are clearly spelt out in the above provisions of section 3(1)(r), section 10(j), (l), (m) and (n) of the Lagos State College of Education Law 2003, now 2015 and Clause 2(a) of Chapter I, Clause 6(a) to (d), (f) and (g) of Chapter II, and Clause 3 of Chapter 3 of the Conditions of Service (exhibit C10) made pursuant to the Law, I find and hold that the Claimant’s contract of employment with the 1st Defendant has statutory flavour.
41. The main question under issue two; is whether the Claimant was validly retired from the service of the 1st Defendant in accordance with the statutory provisions setting up the 1st Defendant and the Conditions of Service. In asserting that he was not; the Claimant alleges breaches of:
(i) Chapter 3 of the Senior Staff Conditions of Service of the 1st Defendant.
(ii) Section 32 of Lagos State College of Education Law, Chapter L11, Laws of Lagos State 2003.
(iii) Lagos State Public Service Rules 2015.
(iv) Section 36(1) of the 1999 Constitution.
42. The Defendants, on the other hand, insists that they complied with the said Statutes in retiring the Claimant from their employment for gross misconduct under Chapter 4, Section 4, Rule 040502 of the Lagos State Government Public Service Rules and Chapter 3, Section 11 C, I (m) of the Conditions of Service of the College. The process of the Claimant’s retirement started with exhibit C12 wherein the Claimant was invited by the Committee set up by the Council to assess the Financial State of the College and other Related Issues to ‘seek clarifications from you on some issues pertaining to your activities during the period you served as the Registrar of the College. Evidence before this Court shows that the Claimant attended to the Committee’s invitation( whether in protest or not). Subsequently, the Claimant was issued a LETTER OF QUERY via Exhibit C13 in the following terms:
“The Governing Council at its first (1st) Regular Meeting held on Monday April 11, 2016 considered the report of the Implementation Committee of the report of the Committee that Assessed the Financial Status of the College and directed that a query be issued to you to explain within twenty-four (24) hours why disciplinary action should not be taken against you for:
(i) Your failure to present receipts and Certificates of attendance at Conferences purportedly attended by you in 2013 for which funds were collected;
(ii) Failure to appear before the Committee set up by the Council to investigate the financial status of the College.”
43. The Claimant responded by exhibits C14, C15 and C18 to the Committee set up by the Council to investigate the financial status of the College. The Claimant was later to be invited to appear before the special Ad-Hoc Disciplinary Committee of Council on Staff Matters via Exhibit C16. The purpose was to seek further clarification as well as his response to the query. The Committee later recommended in their first and second recommendations that the Claimant refunds the sum of N468,000.00 if he cannot provide evidence of attendance at the conference. (see Exhibit D6). The rest of the recommendations of the Committee to the Council read:
(iii) Barr. Bola Disu was charged for connivance as he claimed that he did not know the prime owner of Rinllandded Nigeria Limited and production of College Identity card as the immediate past Registrar of the College.
(iv) This is tantamount to Gross Misconduct under Chapter 3 section (I)(M) of the College Condition of Service.
(v) Barr. Bola Disu is recommended for immediate retirement from service.
44. The 2nd Defendant invited the Claimant for interaction in its 5th (2016) Emergency Meeting which held on 10th August 2016. The Minutes (exhibit D7) shows that the Council interacted with the Claimant on a wide range of issues concerning the College Administration; and pronounced that:
(i) He should refund the sum of Four Hundred and Sixty-Eight Thousand Naira (N468,000.00) which he claimed he spent on conferences but could not provide evidence of attendance;
(ii). Due to the on-going re-organization in the College, and other offences he committed, he should proceed on compulsory retirement with effect from Wednesday, August 10, 2016 as his service is no longer needed in the College.
(iii) He should hand over all College or Government’s properties in his possession appropriately within 48 hours on receipt of the letter of compulsory retirement.
45. The Claimant was thereafter issued with exhibit C19, the letter of retirement which reads as follows:
August 31, 2016
Mr. Bola Disu
Deputy Registrar
Adeniran Ogunsanya College of Education
Otto/Ijanikin
Lagos State
Usf: Provost
Adeniran Ogunsanya College of Education
Otto/Ijanikin
Lagos State
Dear Sir,
LETTER OF COMPULSORY RETIREMENT FROM SERVICE
The Governing Council at its Fifth (5th) 2016 Emergency meeting, held on Wednesday, August 10, 2016 considered the report of its Staff Disciplinary Committee and found you culpable of these offences:
(i). That you misappropriated the College fund to the tune of Four Hundred and Sixty-Eight Thousand Naira (N468,000.00) only;
(ii). That you claimed not to know that Mr. Anrinle, A. A., who is staff of the College was the prime owner of Rillandded Nigeria Ltd, and was involved in the production of College Identity Cards;
(iii). That you have served the College as Registrar for seventeen (17) years without mentoring a competent successor;
(iv). That you were receiving salary for doing nothing since your resumption from sabbatical; and
(v). That you signed an M.O.U. on behalf of the College without writing your name or that of the Provost.
2. Council, upon an extensive deliberation, pronounced that:
(i). You should refund the sum of Four Hundred and Sixty-Eight Naira (N468,000.00) which you claimed you spent on conferences but could not provide evidence of attendance within a month from the date of receipt of this letter; and
(ii). Due to the on-going re-organization in the College, and other offences you committed, you should proceed on compulsory retirement with effect from Wednesday, August 10, 2016 as your service is no longer needed in the College.
You are hereby requested to hand over all College/Government’s properties in your possession appropriately within 48 hours on receipt of this letter.
Wishing you the best in your future endeavours.
S. A. O. Muhideen
Ag. Registrar”
46. Not a few questions have agitated my mind, after going through this letter of retirement and the processes for discipline provided in the Claimant’s contract of employment/1st Defendant’s Law:
(i) Was the Claimant investigated by a Committee recognised by his contract of employment?
(ii) Was there any formal allegations levied against the Claimant for the offences he was retired; and was opportunity given to him to defend these offences for which he was retired?
(iii) Were the offences for which he was retired such as are punishable by retirement?
(iv) Were the compositions of the various committees compliant with the principle of fair hearing?
47. The Lagos State College of Education Law and the Conditions of Service (Exhibits C10/D4) have the same provisions on termination and dismissal. The Conditions of Service at 3.3(vii)(2) provides that:
“3.3(vii)(2). PROCEDURES
The procedure for termination/dismissal shall be in accordance with Edict No. 20 of 1986 Section 31-33(1) which states as follows;
31. ..........
32. If it appears to the Council that there are reasons for believing that any senior staff besides the principal officers should be removed from his office or employment on grounds of misconduct or inability to perform the functions of his office or employment, the Council shall:
(a) give notice of those reasons to the person in question;
(b) set up a committee from among its members of the Council and the Academic Board to investigate the matter and to report on it to the Council, where the matter relates to the Deputy Provost, the Registrar or a head of department;
(c) direct the Provost to set up a Committee to investigate the matter and report to the Council, where the matter relates to any other member of the academic staff or senior administrative staff-
(i) who is appointed or allowed to continue in employment beyond retiring age prescribed by the Council;
(ii) whose appointment is not intended to continue until retiring age, and may be removed from office in accordance with the terms of his contract of service or in exercise of powers of disciplinary control conferred in that behalf in or by virtue of this Edict;
(a) make reasonable arrangements for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter and if he so desires to be accompanied by a representative; and
(b) if the council is satisfied that the person in question should be removed aforesaid, the Council may so remove him by an instrument in writing signed by the Chairman or any other officer of the Council.
(2) The Chairman or any other officer of the Council, shall cause a copy of the signed instrument of removal to be served as soon as possible on the person in question…”
48. At the point of the retirement, the Claimant was no longer a principal officer of the College. The post of Deputy Registrar is not mentioned in paragraph (b) contrary to the argument of the Defendants. It means that the provision that covers the Claimant, at the time of the retirement is paragraph (c). Paragraph C contemplates that the disciplinary committee that shall investigate the Claimant shall be a committee set up by the Provost; at the direction of the Council. This is as against the committee for principal officers of the College under paragraph (b). The Ad-hoc disciplinary Committee that invited the Claimant was a Committee set up by Council. This is clearly shown in exhibit C16 which invites the Claimant to APPEAR BEFORE THE SPECIAL AD-HOC DISCIPLINARY COMMITTEE OF COUNCIL ON STAFF MATTERS. This is not the Committee contemplated by both the Conditions of Service, and the Law to investigate the Claimant. I so find and hold.
49. Was there any formal allegation levied against the Claimant for which he was required to defend himself? It is the case of the Claimant that he was not informed in writing of all the offences/misconducts listed in paragraph 1(ii) to (v) of exhibit C19 (letter of compulsory retirement) before his appearance before the Ad-Hoc Committee of the 1st Defendant. I have gone through the exhibits tendered in this matter to determine if any formal allegations were notified to the Claimant, as required by the Lagos State College of Education Law and the Conditions of Service. Both instruments require that:
If it appears to the Council that there are reasons for believing that any senior staff besides the principal officers should be removed from his office or employment on grounds of misconduct or inability to perform the functions of his office or employment, the Council shall:
(a) give notice of those reasons to the person in question;
(c) direct the Provost to set up a Committee to investigate the matter and report to the Council, where the matter relates to any other member of the academic staff or senior administrative staff.
(d) make reasonable arrangements for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter and if he so desires to be accompanied by a representative.
(e) if the council is satisfied that the person in question should be removed aforesaid, the Council may so remove him by an instrument in writing signed by the Chairman or any other officer of the Council.
50. By exhibit C13, the 1st Defendant issued a query to the Claimant for his failure to present receipts and certificates of attendance at conferences attended by him in 2013 for which funds were collected; and for failure to appear before the Committee set up by the Council to investigate the financial status of the College. The Claimant responded via exhibits C14, C15 and C18; attaching receipts and certificates. Exhibit C16 invited the Claimant to appear before a Special Ad-Hoc Disciplinary Committee of Council on Staff Matters. It is to be noted that I have already held that this is not the appropriate Committee to investigate the Claimant; since the Claimant was not a principal officer of the College, at that time. Exhibit C16 invited the Claimant to a sitting whose purpose was to “seek further clarification on the attached as well as your response to the query issued to you on Monday, April 13, 2016”. Nowhere in exhibit C16 or exhibit C13, was the Claimant notified of allegations levelled against him for any form of offence or misconduct for which he was required to defend himself or face the penalties provided by his contract/the law. Exhibit C12, another letter of invitation to the Claimant; was for the Claimant to appear before the Committee constituted to assess the financial state of the college and other related issues. That also did not make any allegations of misconduct or offence against the Claimant. Exhibit C17 was made further to the Claimants appearance at the Disciplinary Committee of the Council on Staff Matters and directed that Claimant should provide evidence of attendance at the listed conferences, which funds were released to the Claimant.
51. Thus, none of the communications (Exhibits C12, C13, C16, and C17) from the Committees of the Defendants notified the Claimant of any allegations of commission of the five (5) conducts for which the Claimant was compulsorily retired from the service of the 1st Defendant; as required by section 32 of the College Instrument, and the Conditions of Service of the Defendants. The Claimant was never informed via a written statement, at any time that fresh allegations apart from the ones over which he was queried, had been levelled against him. There is no other document before me that purports to give the required notification of the allegations for which the Claimant was retired, to the Claimant. It is my finding therefore, that the Claimant was not notified of any allegation for which he was invited to defend, before the Disciplinary Committee. That constitutes a breach of the procedure stipulated in Claimant’s contract of employment, as shown in the Law establishing the College, and the Conditions of Service; made pursuant to the said Law. It is also a breach of Claimant’s right to fair hearing, as he was not given the opportunity to defend the allegations for which he was retired. I so hold. How could he defend allegations not formally communicated to him?
52. Of the two conducts which appeared on the face of exhibit C13(the query), it can be seen that the second item for “failing to appear before the Committee set up by the Council to investigate the financial status of the College” had been abandoned as it was obvious that the Claimant appeared before the said Committee. The first for “failure to present receipts and Certificates of attendance at Conferences purportedly attended by you in 2013 for which funds were collected”, for which he was queried; was not stated as an allegation to be defended before the Disciplinary Committee. Exhibit C17 invited the Claimant to present specific receipts to the Committee within 7 days; failure at which the Claimant will have to refund to the college the sum stated in the letter. Out of this sum, the Claimant was eventually asked to refund the sum of Four Hundred and Sixty-Eight Thousand Naira (N468,000.00). This was also the recommendation in exhibits D6 and D7. It was never stated as a basis for the retirement of the Claimant. How could it even be, considering exhibit C34, page 20, paragraph 3.03 – the Lagos State Auditor-General’s Statutory Report on the Account of Lagos State (Education Sector) for the Year Ended 2014 which shows that the 1st Defendant had retired all monies given to it for conferences. The Report on the 1st Defendant is found at pages 14 to 27. At paragraph 3.03 is stated:
TRAININGS, CONFERENCES AND WORKSHOPS PURPORTEDLY ATTENDED WITHOUT EVIDENCE OF ATTENDANCE - N 13,028,000.00
It was gathered in the course of the audit that payment vouchers in respect of some trainings, conferences and workshops attended by nominees of the College were without proof of attendance. The certificates of attendance and other corroborative evidences (e.g. boarding pass etc) were neither attached to the vouchers nor presented to audit to substantiate the claims of nominees’ participation in the programmes. Management should therefore present to audit evidence to confirm that these programmes were actually held and attended by the nominees of the College. Appendix 1D.
MANAGEMENT RESPONSE
The evidence of attendance of these various trainings, conferences and workshops, has now been attached to the affected payment vouchers and hereby presented for audit verification.
AUDIT COMMENT
The affected payment vouchers were re-examined by audit now found to be in order.
This Audit Report did not make findings of outstanding liabilities in respect of trainings, conferences and workshops. The Defendants have not shown that the said Audit Report was not correct or rejected by any means or authority. The amount for which the Claimant was asked to refund was for 2013 conferences and workshops, which was before exhibit C34 was made. It would be safe to presume that the said amount was already retired by the College; as shown in the Report of 2014. According to the Claimant’s evidence:
The 1st Defendant, who without any basis, was raising issue via the query on non-retirement of monies given to me for the conferences, had by the Lagos State Sectoral Report published in 2014 pages 74 to 75 thereof admitted that I had retired all the monies given to me for the said conferences.
The Defendants’ response was that “in any case, the document referred to was allegedly published in 2014 before the present investigation and processes”. In my view, the fact that the document was published in 2014 implies that the Defendants cannot begin to raise issues of retirement of receipts for conferences which occurred in 2013, in a 2016 investigations, when it had itself represented and verified such expenditures in the 2014 Audit Report.
53. Another pertinent question to be asked is, assuming the Claimant was notified of the allegations for which he was retired; are they those recognised by the Law regulating the employment of the Claimant, as gross misconducts for which a staff can be retired? Exhibits D6 and D7 show that for the alleged unaccounted sum of Four Hundred and Sixty-Eight Thousand Naira (N468,000.00) only, the Claimant was to refund the said amount to the 1st Defendant(I have already faulted this on the ground that the Claimant cannot be asked to refund monies already retired by the 1st Defendantg). By Chapter 3 (p. 46) ‘Retirement from Service’ as a disciplinary measure may be invoked against an employee found guilty of gross misconduct. Offences constituting gross misconduct are listed as follows:
3.03(vi)(C)(i) Gross Misconduct
(a) Gross insubordination
(b) Falsification of Marks/Records/Accounts
(c) Conviction for a criminal offence
(d) Stealing, corruption and dishonesty
(e) Aiding and abetting examination malpractice or leaking examination questions and results
(f) Alteration of examination grades and results
(g) Abandonment of duty
(h) Forgery
(i) Sabotage against the College
(j) Disclosure of official secret
(k) Engagement in full time studies while employed in the College on full time roll
(i) Acting as an attorney or agent against the College in any matter whilst employed in the College on a full time or part time capacity
(m) Any other act which in the opinion of the College is a gross misconduct
54. The offences for which the Claimant was found culpable for; apart from the already faulted sum of Four Hundred and Sixty-Eight Thousand Naira (N468,000.00) are:
(ii). Claiming not to know that Mr. Anrinle, A. A., who is staff of the College was the prime owner of Rillandded Nigeria Ltd, and was involved in the production of College Identity Cards;
(iii). Serving the College as Registrar for seventeen (17) years without mentoring a competent successor;
(iv). Receiving salary for doing nothing since his resumption from sabbatical; and
(v). Signing an M.O.U. on behalf of the College without writing his name or that of the Provost.
55. None of these other grounds for which the Claimant was retired is listed as constituting gross misconduct in the Defendants’ Conditions of Service. If the Defendants wanted to rely on paragraph (m) for ‘any other act which in the opinion of the College is a gross misconduct, then, the procedure to make that finding must start with, first and foremost, confronting the Claimant with the allegations (or ‘charge’) as constituting a misconduct in the opinion of the College; to enable the Claimant defend himself of the charges. None of exhibits C12, C13, C16 and C17, did that in this case. This Court in Godwin Okosi Omoudu v. Prof. Aize Obayan & Anor Suit No: NICN/AB/03/2012 judgment of which was delivered on 2014-10-08, per B A Adejumo PNICN(as he then was) had occasion to consider a dismissal founded on the report of a panel that investigated another conduct different from the one for which the Claimant was dismissed. The facts in that case showed that the Defendant University had cause to issue a query to the Claimant for an alleged verbal assault on a senior officer. However, the reason given for the termination of Claimant’s appointment was the report of a panel that investigated the involvement of the Claimant in a shuttle service incident, which panel did not give the Claimant an opportunity to be heard. The Court found that the reason given by the Defendant University for the termination of the Claimant was not established and that there was non-compliance with the conditions of service contained in the staff handbook. See Mrs. Oluvbo Adenike Iweze v. Attorney General of Lagos State & 3 Ors NICN/LA/333/2017 judgment delivered on 1st April 2019.
56. The Claimant gave evidence that it is his candid view that the Defendants were ill-motivated and acted in bad faith in the issuance and service of the compulsory letter of retirement on him. I am inclined to agree with the Claimant after considering the composition of the various Committees of the Defendants before whom he appeared.
A. Exhbit D1 shows the REPORT OF THE COMMIITEE TO ASSESS THE FINANCIAL STATUS OF THE COLLEGE AND OTHER RELATED ISSUES which was set up after the inauguration of the new Governing Council of the College on Monday, October 5, 2015. The composition of the committee as set up on 17th December 2015 was as follows:
MEMBERSHIP
Alhaji W. Ade.Lawal - Chairman
Dr. (Mrs.) R. O. Olatunji - Member
Mr. S.B.Sutton - Member
Mrs. R. O. Ayinde - Member
Mr. M.S. Avosetinyen (Chairman, COEASU) - Member
Mrs Ombugadu, Wunmi (Chairman, SSUCOEN) - Member
Mr. F. Adebayo (Chairman, NASU) - Member
Mrs,Osinaiwo,A.O. - Secretary
B. Exhibit D2 (Set up on 4th February 2016) - REPORT OF AUDIT REVIEW OF THE FINANCIAL OPERATIONS OF ADENIRAN OGUNSANYA COLLEGE OF EDUCATION, AOCOED shows its members as:
Dr.(Mrs) R.O Olatunji - (Chairman)
Dr.(Mrs.) O.A Ladele
Prof.(Mrs.) F.AOsanyin
Mr. S.B Sutton
Mr. W. Ade LawaI
Mrs. F.M Awobiyi
Mrs. M.I. Ogunkoya - (LASU)
Mr. Salawu Saidi -(LASU)
Mrs. 0.I. Obata - Secretary
I note that the first three persons in the Committee to Assess the Financial Status of the College and other Related Issues are repeated in the Audit Review Committee. The other members (except one) are representatives of trade unions in the 1st Defendant. Therefore, the Audit Committee presented its report to a body, substantially comprising the same members; i.e. to itself.
C. Exhibit D3 (set up 4th March 2016) is the Report of the Implementation Committee constituted by the Council to implement the Report of the Audit Review. The Committee is made up of the following:
1. Dr (Mrs) R. O Olatunji chairman
2. Dr (Mrs.) O A Ladele member
3. Prof (Mrs) F A Osanyin Member
4. Mr. S B Sutton Member
5. Alhaji W. Ade Lawal Co-opted Member
6. Mrs FM Awobiyi Member
7. Mrs. O. I. Obata Secretary
The Council apparently adopted its initial Committee which conducted the Audit Review, to implement its own recommendations as the members of the committee in exhibit D3 are exactly the same, save for the two members representing their unions. The three committees were essentially thus constituted by the same persons.
D. Exhibit D13, is the Query to the Claimant, written by the Provost, Dr. (Mrs.) O. A. Ladele, who was a member of both the Audit Committee and the Implementation Committee. Later, the Claimant was invited to appear before the Ad-Hoc Disciplinary Committee of the Council composed as shown in exhibit D6 below:
E. Exhibit D6 – Report of the Special Ad-Hoc Disciplinary Committee of Council constituted on 11th April, 2016 with membership as follows:
1. Prof. (Mrs.) Osanyin, F. A. - Chairman
2. Dr. (Mrs.) Ladele, O. A. - Member
3. Alhaji Lawal, W. A. - Member
4. Dr. (Mrs.) Olatunji, R. 0. - Member
5. Mr. Sutton, S. B. - Member
6. Mr. Adesanya, A. T. - Member
7. Dr. (Mrs.) Odigie, J. 1. - Co-opted
8. Mrs. Awobiyi, F. M. - In attendance
9. Muhideen, S. A. O. - Ag. Registrar/Secretary
Again, the exact persons who constituted the Assessment Committee, the Audit Committee, the Implementation Committee, became automatically the Ad-Hoc Disciplinary Committee; including the issuer of the query. By this, the members of the Assessment Committee, Audit Committee, Implementation Committee, also sat in the Disciplinary Committee, to try the Claimant of offences they had themselves already established prima facie case of, against the Claimant. The Issuer of the Query was also in the Committee. It was little wonder that the Disciplinary Committee boycotted the procedures laid out in the 1st Defendant’s Instruments that regulated the Claimant’s employment and rubber stamped their opinions contained in their various reports.
F. Finally, Exhibit D7 - Minutes of the Fifth (5th) 2016 Emergency Meeting of the Governing Council held on Wednesday, 10th August, 2016 in the Council Chamber of the College, had the following members:
1. Prof. Tunde Samuel - Chairman
2. Dr. (Mrs.) O. A. Ladele (Provost) - Member
3. Dr. (Mrs.) Rafiat O. Olatunji - Member
4. Mrs. Iyabo F. Osifeso - Member
5. Alhaji W. Ade-Lawal - Member
6. Mr. S.B. Sutton .' - Member
7. Prof. (Mrs) F.A. Osanyin - Member
8. Mrs. O. O. Lawson - Member
9. Mrs. Rhoda O. Ayinde - Member
10. Dr. Femi Adedina - Member
11. Adesanya Adeyemi - Member
12. O.B. Bello (Ag. Bursari) - Co-opted
13. S.A.O. Muhideen (Ag. Registrar) - Secretary
57. As can be observed from the list of the members of Council, the five consistent members of the previous Committees were sitting over their recommendations concerning the Claimant. It is little wonder again that the entire process sailed through, despite not complying with all the Rules on discipline of its Staff as provided in its Rules; starting from the very power to constitute the body that will discipline the Claimant. The Members of the Committee that sat over the case of the Claimant were definitely the accusers, prosecutors and judges, in their own course. There is no way justice can be imagined to have been done, in the circumstance. The two aspects of fair hearing and natural justice audi alterem partem, and nemo judex in causa sua were clearly violated in this case.
58. I find on issue two; whether the Claimant was validly retired from the service of the 1st Defendant in accordance with the statutory provisions setting up the 1st Defendant and the conditions of service; that the Claimant was not validly retired from the service of the Defendants on account of none compliance with Chapter 3 of the Senior Staff Conditions of Service of the 1st Defendant; and Section 32 of Lagos State College of Education Law, Chapter L11, Laws of Lagos State 2003. The procedure adopted was also in breach of Section 36(1) of the 1999 Constitution requiring fair hearing. The Committee that investigated the Claimant was not the one contemplated by the aforementioned instruments regulating employment in the 1st Defendant. There were no formal allegations levied against the Claimant for the offences he was retired for. Whereas he was queried for a different offence, he was retired for very different reasons, for which he was not afforded the opportunity to know that he was facing gross misconduct charges. Additionally, the conducts for which he was retired do not constitute gross misconduct, under the relevant instruments. The composition of the Committees that investigated, tried and found the Claimant guilty of gross misconduct is such as violates the principle of nemo judex in causa sua. All these added together invalidates the entire process leading to the retirement of the Claimant. I so hold.
59. Having so held, I must record my disagreement with Claimant’s submission that neither the Disciplinary Committee of the 1st Defendant nor the 2nd Defendant had powers to try him for an alleged offence of misappropriation of funds and other offences except he had been tried by the regular Courts for such offences before the Defendants can take any disciplinary actions against him. He contended that the 1st and 2nd Defendants and their Staff Disciplinary Committee, not being a Court established under the law to try offences, would act ultra vires their powers if they so do. In the case of FBN v. Akanji (2017) LPELR-43555(CA), the Court of Appeal referred to several Supreme Court decisions on the issue of fair hearing and whether there is need for criminal conviction before an employer can terminate an employee for allegations bordering on crime. The Court held that:
The position taken by the learned trial Judge and the eventual decision of the lower Court is contrary to the established principle of law set out in this Judgment. In exercising the powers of summary dismissal, it is sufficient if the employee is issued a query and allowed to willingly respond to same, by so doing the Constitutional right to fair hearing would have been observed. As already established by this Court in AVRE vs. NIPOST (supra), "...whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defense."
In ARINZE Vs. F.B.N. LTD (2004) 12 NWLR (pt. 888) 663; (2004) LPELR-551 (SC) pg. 11, the Supreme Court of Nigeria per ONU, JSC held that:
"As Wali, JSC pointed out at pages 214 - 215 in the latter case: 'It is not necessary, nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality ... to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defense. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him."
ONU, JSC further held in ARINZE Vs. FBN LTD (supra) at pg. 16, Paras. E-F that "...in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself." This position of the law remains unassailable, and let me state that an employer has powers subject to the terms of the agreement with the employee to dismiss for gross, grave and grievous misconduct where the employee is given opportunity to be heard.
On whether the criminal allegation against an employee ought to be proved by the Court before the employer can dismiss on grounds of misconduct which borders on criminality, the law is well settled and has been restated by this Court that it is not an essential requirement that before an employer can summarily dismiss his employee, he must have been tried by a Court of law. See: AJUZIE vs. FBN PLC (2016) LPELR-40459 (CA) Pg. 36, and OBIANWUNA vs. NEPA (2016) LPELR-40935 (CA) Pg. 21-23, where this Court held that:
"...However, where fraud is alleged in a general sense such as in a contract of employment as in the instant case, it is not the same as fraud understood and cognizable under criminal law, therefore the employee need not be prosecuted in a criminal Court and found guilty before he can be dismissed by his employer..."
In the circumstance therefore, the Appellant having served the Respondent a Query dated 11th January, 1999, and the Respondent having voluntarily replied on the 11th day of January, 1999 complied fully with the provisions in Clause 6 of the Employee Code of Conduct and Ethical Standard Guidelines. The Appellant in my view gave the Respondent in the instant appeal an opportunity to be heard. Upon being called upon to respond to allegations of gross, grave and grievous misconduct, the employer is entitled to dismiss if the reasons furnished by the employee in his response to the query are not concrete, cogent and convincing. In this case, I hold the view that the Respondent was given fair hearing and that the Appellant exercised its power to summarily dismiss the Respondent in line with Clause 4 of the Employee Code of Conduct and Ethical Standard Guide Lines." Per ABUBAKAR, J.C.A. (Pp. 36-47, Paras.
60. The essence of the dictum quoted above is to show that had the Defendants complied with its Laws on the disciplinary procedure, then the fact that no Court had convicted the Claimant of the offences would not have applied to invalidate their decision. Again, it must be noted that the case cited above was one not regulated by statute for which stringent measures do not lie; such that a query and opportunity to respond to the query satisfied the requirement for fair hearing. In employments regulated by statute as this case, the statutory provisions must necessarily be complied with; which I have already found was not complied with in this case.
61. Both parties had made allusions to the application of the Lagos Public Service Rules to the employment of the Claimant. The Defendants particularly asserted that the Claimant’s actions constituted gross misconduct under Chapter 4, Section 4, Rule 040502 of the Lagos State Government Public Service Rules. I have gone through the provisions of Rule 040502 which is on acts that constitute serious misconduct. I have gone through the list, and I do not find any of the acts for which the Claimant was supposedly retired, listed there. Rule 040402 – 040406 states the procedure for determining such acts of serious misconduct. From the earlier findings in this case; that procedure was not complied with, before the Claimant was retired. Majorly, the letter of query and the letter of invitation both did not call on the Claimant to respond to the allegations for which he was retired as required by Rule O4O4O6. Rule 040406 provides that:
040406: Unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Public Service may be dismissed by the State Civil Service Commission or any other such body only in accordance with these Rules:
(i) the officer shall be notified in writing of the grounds on which he is proposed to be disciplined. The query should be precise and to the point and must relate the circumstances of the offence, the rule(s) and regulation(s) which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report (s) likely to be used against him and he should be asked to state in his defence that he has been given access to such document(s).
From the findings already made in this case, the above procedure was not adopted in the retirement of the Claimant. The decision of the Court of Appeal in NIMASA v. ODEY (2013) LPELR-21402(CA) captures the cloak that the PSR puts on public officers; per NDUKWE-ANYANWU, J.C.A. (Pp. 22-24, paras. F-D) that:
"The Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. What this means is that a public servant cannot be removed without strictly complying with CSR Okocha vs. CSC Edo State (2004) 3 NWLR Pt.861 page 494, which states: thus, a public officer can be dismissed only if the following Procedure is followed: (a) the officer shall be notified in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing, before a day to be specified, which day must allow a reasonable interval for the purpose, any ground upon which he relies to exculpate himself; (b) the matter shall be investigated by the appropriate authority with the aid of the head of the officer's department, and such other officer or officers as the appropriate authority may appoint; (c) if any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses; (d) no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;…”
Rule 040406(viii) of the PSR allows for the leveling of further grounds for dismissal. It states,
If, during the course of the inquiry, further grounds of dismissal are disclosed and the State Civil Service Commission or any other such body thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission or any other such body, be furnished with a written statement of it and the same steps shall be taken as prescribed above in respect of the original grounds.
Paragraph (vi) of the same Rule 040406 provides that:
(vi) The officer shall be informed that, on a specified day, the subject of his dismissal shall be brought before the Board and he shall be required to appear before it to defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Board;
62. My findings, applying the Lagos State College Law, and the 1st Defendant’s Conditions of Service, show that the above standards were never met, before the Claimant was retired. It is well-settled that the consequence of the breach of the right to fair hearing in an employment governed by statute is that such an employee is entitled to be reinstated. In University of Maiduguri Teaching Hospital Management Board v Dawa (2001) 16 NWLR (pt. 739) 424, it was found that the removal of the plaintiff/respondent violated his right to fair hearing; the Court declared that; “where the provisions of a statute govern the conditions of an employee, the courts regard the employee as having secured a special legal status, other than the ordinary master and servant relationship, with his employer. The employer is bound to comply with those conditions otherwise his act of termination would be declared null and void and any other act based thereon will also be void – per Per NWEZE, J.C.A.in Federal Polytechnic, Ede &Ors v. Alhaji Lukman Ademola Oyebanji (Supra).
Issue Three - Whether the Claimant is entitled to his reliefs.
63. It is the claim of the Claimant and the reliefs sought that a Court must be concerned with. This is the decision in Society Bic S.A &Ors v Charzin Industries Ltd (2014) 4 NWLR [Pt. 1398] 497 at 551-552 where the Supreme Court held that:
To expatiate, it can safely be said that jurisdiction is determined by what the Plaintiff is demanding and cannot be determined by a situation where the response that is anticipated, if I may say so would be decider. Going contrary to using the Claim as a determinant is like begging the question, allowing the cart before the horse or a possible journey into speculation in getting into materials outside what the initiator of the Court process has put forward.
A. Based on my findings under issue two, I find and hold that the Claimant is entitled to his first relief. I therefore DECLARE that the purported compulsory retirement of the Claimant vide letter dated 31st August 2016 by the Defendants is in breach of the Provisions of Chapter 3 of the Senior Staff Conditions of Service of the 1st Defendant, section 32 of Lagos State College of Education Law, Chapter L11, Laws of Lagos State 2003, Lagos State Public Service Rules 2015 and the Claimant’s constitutional right of fair hearing enshrined in section 36(1) of the 1999 Constitution and, therefore, unlawful, null and void.
B. Also based on my findings on issue two, I DECLARE that the purported compulsory retirement of the Claimant vide letter dated 31st August 2016 without affording the Claimant the opportunity of fair hearing on the alleged offences is a violation of the Claimant’s constitutional right to fair hearing enshrined in section 36(1) of the 1999 Constitution and therefore unconstitutional, null and void.
C. I find no need to make any declaration on the retroactive nature of the purported compulsory retirement of the Claimant vide letter dated 31st August 2016, as I have already found that the retirement simpliciter is ultra vires the powers of the Defendants and therefore unlawful, null and void.
D. The purported retirement having been found unlawful, null and void, I ORDER that the Claimant be immediately reinstated to his duty post as a Deputy Registrar of the 1st Defendant.
E. As a consequence of the above, I ORDER for the immediate payment of all salaries and allowances due to the Claimant with any increment thereon from the date of COMPULSORY retirement of the Claimant (31st August 2016) up to the date of reinstatement.
F. Having granted the main reliefs sought in this suit, I find no need to make any Orders with respect to the alternative reliefs. All other rights and benefits accruing to the Claimant in his reinstated status are to be restored to him and paid accordingly.
64. Issue four is whether the Defendants are entitled to their counter claim. The Defendants’ counterclaim is founded on their perceived entitlement to be refunded the sum of N468, 000.00 allegedly misappropriated by the Claimant. I have already found that they are not so entitled, among other reasons, for having already officially represented it as duly retired. The Counterclaim therefore fails, and is dismissed.
Judgment is entered accordingly. I make no Order as to cost.
………………….…………………………………….
Hon. Justice (Prof) Elizabeth A. Oji