IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 28TH APRIL, 2022
SUIT NO: NICN/ABJ/06/2021
BETWEEN
YUSUF TIJJANI YUSUF………CLAIMANT
AND
CORPORATE AFFAIRS COMMISSION….……DEFENDANT
REPRESENTATION
Y.A. Alajo Esq with A. Muhammed Lawal Esq for the Claimant.
Prof A.I Chukwuemerie, SAN with E.K Olorunju Esq and F. Ogbu Esq. for the Defendant.
JUDGMENT
INTRODUCTION
1. It is the law that there are different types of employment relationship, this is deducible from the contract. The contract of service is the bedrock upon which an aggrieved employee found his suit for wrongful/unlawful determination of employment. His case succeeds or fails upon the terms or condition contained in his contract. Those provisions stipulated in the written contract of service are binding on the parties. It follows that in a written or documented contract of service a Court of law must not have resort to any other document outside the terms stipulated or mutually agreed in the contract in deciding the rights and obligations of the parties. It is apparent from the processes filed in this case that this action is declaratory in nature. There is therefore, no doubt that the burden placed on a claimant in this genre of action is higher where the action is declaratory in nature.
2. It is the claimant’s case that he was an employee of the defendant and rose through the ranks as Assistant Manager. Sometimes in the year 2019 a customer/agent came for the collection of the certificate of incorporation of a Company “Trankredit Finance Company Limited” and as the dispatching officer on duty he dispatched same to the customer in line with the acceptable practice and while he was assembling all treated files he discovered some discrepancies in the Company’s name and for which he put a call through to the agent who told him there was a change of name along the line of registration which must have occasioned the discrepancy. He then asked the agent to bring the correct documents that reflect the name change so same could be put in the file and while the customer was yet to bring the documents, he proceeded on leave and in line with the obtainable practice he kept the file of the said Company in a cabinet where problem /keep-in view files were kept and he informed the dispatch officer who took over from him. He averred further that while he was on leave, he received a call from an officer from his office inquiring as to the discrepancy in the Company’s name and the forms in the file after its retrieval from the cabinet where he had kept same. He had informed his immediate Senior one Aliu Kama and told him to check around his office to see if the customer had returned the documents which were found at Mr Aliu’s office. Subsequently after his resumption from his leave, he was summoned for questioning by the internal security Unit after which he was issued query alleging massive fraud perpetrated in the registration of the above Company. He responded to the said query and was again issued a letter of suspension and while he was on suspension, he was invited to appear before the Central Disciplinary Committee for the allegation of fraud and touting. He contended that he was not allowed to know the testimony of those that testified behind him before the Committee let alone being given an opportunity to cross examine them and he made it abundantly clear to the Committee that he had no prior knowledge of the registration but only received the necessary registration document from the ICT officer. He also contended that the Committee failed to substantiate the allegations against him. He was subsequently dismissed from the services of the defendant for touting and fraud. Pursuant to which he served the defendant with a pre-action notice in respect of the institution of this suit.
3. It is against this backdrop that the Claimant filed his General Form of Complaint together with the accompanying processes wherein he seeks the following reliefs against the defendant in this case;
i. A DECLARATION that the processes and procedure adopted by the Defendant leading to the dismissal of the Claimant as conveyed in the letter of Dismissal dated 31stAugust, 2020 are unconstitutional, ultra vires, null, void and in breach of the Claimant’s right to fair hearing.
ii. A DECLARATION that the letter of query dated 18th February, 2020, letter of suspension dated 25th February, 2020, and the Letter of Dismissal dated 31st August, 2020 were issued without justification against the Claimant by the Defendant, hence, null, void, of no effect whatsoever and amount to unfair labour practice, which ought to be retracted by the Defendant.
iii. AN ORDER compelling the Defendant to forthwith retract the letter of query, letter of suspension and letter of dismissal issued out against the Claimant.
iv. AN ORDER directing the Defendant to reinstate the Claimant forthwith and to pay him in full all his accrued income/salary arrears from the date of the purported suspension till the date of his reinstatement and thenceforth without loss of promotion.
v. AN ORDER directing the Defendant to pay the Claimant the total sum of ONE MILLION, FIFTY-ONE THOUSAND, TWO HUNDRED AND EIGHTY-ONE NAIRA (N1,051,281) being his unpaid salary arrears from February, 2020 when he was suspended to August, 2020 when he was unlawfully dismissed from service.
vi. AN ORDER directing the Defendant to pay to the Claimant the total sum of ONE HUNDRED AND FIFTY THOUSAND ONE HUNFRED AND EIGHTY-THREE NAIRA (N150,183) per month being his gross monthly salary from August, 2020 until his reinstatement and thenceforth.
vii. A sum of N5 million as damages for psychological trauma, career stagnation and financial inconvenience the Claimant was subjected to as a result of his unlawful dismissal by the Defendant.
viii. AN INTEREST of 25% per annum on the total judgment sum as may be awarded by this Court from the date of judgment until same is finally liquidated.
ix. Cost of this case as may be accessed by the Court.
4. The defendant in response vide its amended statement of defence averred that the claimant’s version of the story is untrue as there was no mix up in transaction as posited by the claimant. It went on that claimant colluded with one Mohammed Nuhu Abatcha to aid a customer/agent to pay for N1,000,000 share capital instead of N100,000.000 share capital. It equally averred that claimant dispatched the certificate of incorporation of the Company in question without due process as he delivered the certificate without the customer signing. That claimant hid the file of the said company in a cabinet and kept some documents relating to the file on hIs table which was what he told one Aliyu Khama to pick on his table. It was equally averred that the claimant was implicated by the agent/customer who confessed in his statement that claimant and the said Abatcha were his co-conspirators. It averred also that claimant was issued query and suspended when his reply to the query was unsatisfactory. It maintained that claimant was afforded an opportunity to be heard before the Central Disciplinary Committee and was given an opportunity to cross examine witnesses which he failed to utilize and claimant and other persons who were involved were fully aware of the allegations against them. It stated that the customer/agent equally mentioned the name of the claimant as one of his co-conspirators before the Committee just like in the statement. It averred that the claimant’s query, suspension and dismissal are all befitting of the claimant and he is thus not entitled to any payment whatsoever. It finally contended that the case of the claimant is frivolous, vexatious and gold digging liable to be dismissed.
5. On the 11th day of October 2021, Claimant opened his case and testified for himself by adopting his written statement on oath and additional statement on oath made on 12/1/2021 and 27/7/2021 respectively as his oral evidence in this case. Documents marked and admitted as Exhibits Y-Y8 were tendered through him without objection from the defendant. He was subsequently cross examined by the defendant without any re-examination after which he closed his case. On the 23rd day of November. 2021, one Hadiza Katagum-Tandja testified for the defendant as DW1 by adopting her written statement on oath dated 9/7/2021 as her oral evidence in this case. Documents marked and admitted as Exhibits H-H7 were tendered through her without objection. She was subsequently cross examined by counsel on behalf of the Claimant. There was no re-examination and she was subsequently discharged. Afterwards, DW2 one Aliyu Khama adopted his written statement on oath dated 22/11/2021. He was subsequently cross examined by learned counsel on behalf of the claimant. There was no re-examination and he was accordingly discharged. The defendant closed its case and the parties were ordered to file their final written address and at liberty to adopt same by letter.
6. The defendant filed its final written address on the 13th day of January, 2022 wherein learned counsel for the defendant formulated three issues for the determination of this case to wit;
a. Whether or not this Honourable Court has the jurisdiction to hear and determine this suit in view of this fact that it was filed against the Defendant (a Public Officer) outside the statutory period of three months allowed by the Public Officers Protection Act.
b. Whether or not the Claimant has exhausted the avenues provided for the extant rules and regulations of Public Service to which he belonged before approaching this Court for the settlement of grievances arising from employment.
c. Whether or not the Claimant, from the totality of evidence placed before the Honourable Court, has proved his claim against the Defendant so as to be entitled to the reliefs sought in this case?
7. On issue one, it is learned counsel’s submission that jurisdiction is the life wire that give Court competence to adjudicate over a matter and several preconditions are usually considered to determine the Court’s jurisdiction over a case. He relied on the following cases; Anyanwu v. Ogunlewe & Ors [2014]LPLER-22184(SC); Wubon v. Kakiey & Ors [2017]LPELR-42988(CA) and; Shell Petroleum Comapany of Nigeria Ltd & Ors v. Chief Isaac Osaro Agbara & Ors [2015]LPELR-25987(SC). He submitted that by the provisions of Section 2(a) of the Public Officers Protection Act the statutory period of limitation to institute an action against a Public officer one of which is the defendant is three months. He submitted that claimant’s action in this case is statute barred having been instituted outside the three months period. He relied on the case of Akinnawo v. National Board for Technical Education [2020]LPELR-51091(CA); Roe Ltd v. UNN [2006]LPELR-45735(CA);Alhaji (Dr) Ado Ibrahim v. Alhaji Maigida U. Lawal & Ors [2015]LPELR-24736(SC); Oyadare v. Adeyemi College of Education, Ondo, Ondo State [2017]LPELR-43219(CA). He submitted that the defendant as an artificial person is protected by the said provisions of Section 2(a) of the Public Officers Protection Act. He relied on the following cases; Attorney-General of Rivers State v. Attorney-General of Bayelsa State& Anor [2012]LPELR-9336(SC); Ibrahim v. Judicial Service Committee, Kaduna State [1998]14 NWLR (Pt 584)1; Dukoke v. IGP Nigeria Police Force & Ors [2011]LPELR-4287(CA); The University of Jos v. Kegwuoh [2013]9NWLR (Pt 1360)478; Kasandubu v. Ultimate Petroleum Ltd [2008]7NWLR (Pt 1086)274,303-304. He reiterated his submission that the action is statute barred having been filed five months after the accrual of cause of action.
8. On issue two, learned counsel submitted that the Public Service of the Federation to which the claimant belonged by virtue of his employment with the defendant is governed by circulars and regulations in addition to the Conditions of Service which bind both Claimant and defendant. He submitted that Circular No Ref HCSF/SPSD/ODD/649277/1 dated 15th May, 2017 by the Head of Service to all civil servants including staff of the Defendant herein and as such every Public or Civil Servant is bound to abide by the circular which is to the effect that every public servant must first explore the steps stated in it before approaching the Court. He submitted also that the defendant had no duty to bring the Circular to the attention of the claimant before the defendant can address the Court on it as he is presumed to know of its existence just as he is presumed to know of any law governing his employment. He cited in support the case of Tajudeen v. FIRS [2020]12NWLR (Pt 1739)459. He submitted further that the claimant having not done the needful as provide in the circular cannot rush to the Court as he who comes to equity must come with clean hands. Cited in support the case of Eke v. FRN [2013]All FWLR (Pt 702)1748. He submitted that claimant who is in breach of the Public Service Rules which governs his employment cannot turn around to claim the reliefs protected by the same Rules.
9. On issue three, Counsel submitted that on the totality of evidence, claimant has failed to prove his case against the defendant. He submitted that he who asserts must prove. He relied on Sections 131,132 and the following cases; Maihaja v. Gaida [2017]LPELR-42474(SC); Ashcroft v. Heritage Banking Co Ltd & Ors [2018]LPLER-44913(CA); CPC v. INEC [2011]18NWLR (Pt 1279)493; AG Anambra State v. AG Federation [2005]9NWLR (Pt 931)572; Organ v. NLNG Ltd [2013]16NWLR (Pt 1381)507,538-539; Muhammadu Buhari v. Olusegun Obasanjo [2005]13nwlr (Pt 941)1@122 and Ogwuche v. Benue State Civil Service Commission [2013]LPELR-22748(CA). He submitted therefore that the claimant has the burden to prove whether his employment was wrongfully or illegally terminated. He relied on the case of Anaja v. UBA Plc [2011]15NWLR(Pt 1270)377,394E-395A and Ibekwe v. ISEMB [2009]5NWLR(Pt 1134)234,252. According to him, the defendant has successfully proven through its pleadings that the claimant’s employment was terminated because he committed fraud which is contrary to the terms and conditions of service of the defendant. He submitted that the conditions of service constitute the binding terms between parties and the business of the Court is to interpret same giving the words used their ordinary grammatical meaning. He relied on the following cases; Akubiro v. Mobil Oil (Nig) Plc [2012]14NWLR (Pt 1319)42; Agbarah v. Mimira [2008]2NWLR (Pt 1071)378 and; Ogwuche v. Benue State Civil Service Commission & Ors, supra. He submitted by the provisions of the Conditions of Service that fraud is one of the reasons for which an employee in the defendant may be dismissed. It is his position that the said conditions of service being a document speaks for itself. He relied on the cases of Ikemefuna & Ors v. Ilondior & Ors [2018]LPELR-44840(CA). He argued that claimant during cross examination admitted that it is not in his duty to resolve any problem of certificate of registration. As such it is obvious that claimant received the file of the Company in question from the appropriate department or Section of the CAC but contrary to his call of duty kept same as he was not supposed to treat any difficulty in respect of a file. He contended that the allegation of claimant that what he was queried for differs from what he was tried with before the Committee and dismissed for is untrue as his query clearly shows that the query states fraud. He equally states that the allegation of dispatching certificate without due process is an aspect of fraud. He submitted that claimant was aware of the allegations against him and equally had an opportunity to defend himself and how he used the opportunity is not the business of the defendant. He relied on the following cases; CM &ES Ltd v. Pazan Services Nig. Ltd [2020]1NWLR (Pt1704)70, 95G-96A; Olasunkanmi Agbabiaka v. First Bank of Nigeria Plc [2020]6NWLR (Pt 1719)77,97A-B.
10. Learned Counsel also submitted that claimant’s employment does not have statutory flavor. He relied on the following cases; Yahaya v. FRSC [2020] LPELR-52332(CA); Idoniboye-Obu v. NNPC [2003]LPELR-1426(SC). He submitted that the principle of fair hearing was observed in the dismissal of claimant. He relied on the following Tajudeen v. FIRS [2020]12NWLR (Pt 1739)459@466; Indorama v Eleme Pet Ltd v. Cutra Intl Ltd [2020]11NWLR (Pt 1735)302,310; C.M. &ES Ltd v. Pazan Services Nig. Ltd [2020]1NWLR (Pt 1704)70,78and Nika Fishing Co Ltd v. Lavina Corporation [2008] LPELR-2035(SC); BFI Group Corporation v. Bureau of Public Enterprises [2012] LPELR-9339(SC). He submitted further that claimant has failed to prove that he was wrongfully dismissed and so his case must fail.
11. Learned counsel on behalf of the claimant filed his written address on the 21st day of January, 2022. On the preliminary, learned counsel responded to the issue raised in the written address of the defendant as to whether the action of the claimant is statute barred. He submitted that any issue bordering on limitation law and limitation law being a special defence to a suit needs to be specifically pleaded in the Statement of Defence before same can be competently argued in the Final Address. He relied on Joel Okunrinboye Export Co Ltd & Anor v. Skye Bank Plc [2014] LPELR-24330(CA)34-36. Learned counsel submitted that assuming the Court is inclined towards allowing the said objection, the claimant’s case which bothers on contract of service is an exception to the limitation period in Section 2(a) of Public Officers Protection Act. He relied on an unreported judgment of this Court in Suit No.: - Dr. Ayotunde Alao v. Kwara State University Malete & Ors delivered on 21st May, 2019 at pages 16 – 17. Learned counsel submitted also that the claimant’s action is not even caught up by the period of limitation under the Public Officers Protection Act because the last relevant event or fact in this case which concluded or completed the cause of action occurred on 26th December, 2020 when the 30 days of pre-action notice expired not when claimant was dismissed as the cause of action was not maintainable then because by the provision of Section 17 of the Company’s and Allied Matters Act, 2020, no action is maintainable in Court against the Defendant unless and until after the expiration of 30 days of the service of a pre-action notice on the Defendant. He relied on the following cases; Adimora v. Ajufo [1988] 3 NWLR (Pt. 80)1; Shell Petroleum Dev. Co. v. Farah [1995] 3 NWLR (Pt. 382) 148@186 Para F; Ogundipe v. Nigeria Deposit Insurance Corporation [2008] FWLR(Pt.432) 1220 @1239 Para. A-B and; Military Administrator, Ekiti State v. Aladeyelu [2007] FWLR (Pt.369) 1195@ 1218, Paras G-H. He submitted also that Defendant’s objection on the grounds that the Claimant’s case is inchoate and premature on one hand and statute-barred on the other hand are mutually exclusive and self-defeating and is like blowing hot and cold at the same time. He relied on the cases of; Ajadi v. Ajibola [2004]16 NWLR (Pt. 898) 91@195; University of Ilorin v. Dunmade [2013] LPELR-21383 CA. He argued that the issue of whether the Claimant exhausted the internal mechanism for dispute resolution and whether the alleged Circular alluded to in paragraphs 4.2.1 and 4.2.3 respectively of the Defendant’s Final Address exist and applicable to the Claimant’s employment or not are all issues of fact which ought to be pleaded and evidence led to prop them before reference can be made to them in the Final Address. It is part of his submission that considering the content of the said Circular as referenced in the Defendant’s Final Written Address, the said Circular is over ambitious and can never be meant or applied to override the Claimant’s constitutional right to seek redress in Court. He submitted further that even if the Circular exists, such is not applicable to claimant who is a dismissed staff.
12. Learned Counsel subsequently formulated two issues for determination of the Court thus;
1. Considering the facts and circumstances of this case, whether the dismissal of the claimant by the defendant can be justified and not liable to be declared null and void.
2. Considering the fact and circumstances of this case, whether the claimant is not entitled to all the reliefs sought as per his claims.
13.On issue one above, learned counsel submitted that considering the facts and circumstances of this case, the dismissal of Claimant by the Defendant cannot in any way be justified and same is liable to be declared null and void. He submitted that the claimant was not given fair hearing in the procedure adopted leading to his dismissal. He submitted that the defendant took evidence on the allegation against him from witnesses behind him and without giving him the opportunity to cross examining them. Learned counsel submitted that from the pleadings and the evidence led in support, it is apparent that the Defendant’s Disciplinary Committee received damaging and implicating evidence and representations from different persons in respect of the allegation against the Claimant in his absence and without giving him the opportunity to cross examine them which violated his right to fair hearing. He submitted that the law is long settled that in a disciplinary proceeding where evidence against an employee is received by investigating committee behind or in the absence of the employee which led to the termination of his employment, the entire proceedings including the termination of employment will be nullified. He relied on the cases of Shell Petroleum Co. Ltd v. Olaranwaju [2008]12 SC. (Pt. III) 27@49 lines 5-10. He submitted also that the right of a party to cross examine a witness called to testify against him is so sacrosanct that such party must be informed of such right; and where he chooses not to cross examine the witness, the Court or the Tribunal must record it in the record of proceeding that he was informed of his right to cross examine the witness and his choice not to cross examine. He also submitted that there is nothing to show from the report (Exhibit H7) that the Claimant was confronted with the evidence and that he was given opportunity to cross examine Abubakar Salisu (Atikulate), Waziri Issa, Shamsudeen Umar Jogur and Aliyu Khama who all gave evidence earlier before the Claimant was called to testify before the Committee as seen in the report. He submitted that claimant’s right to cross examine is a constitutional right which cannot be denied. He relied on the case of Ali v. Nigeria Customs Service Board [2018]LPELR-44106(CA)13-14. He submitted that while testifying under cross examination, the DW1 admitted that Exhibit H5, the report of the Security Unit together with the Written Statement of the witnesses was given to the Disciplinary Committee as part of the evidence in the case and also that same was not given to the Claimant before and during his appearance before the Committee. Thus, that the processes leading to the termination of the Claimant’s appointment breached all the components and characteristics of fair hearing. He relied on Judicial Service Commission, Cross River State v. Young [2013] 5-7 M.J.S.C (Pt.II) 97@125 Paras A-C; Orugbo & Anor v. Una & Ors. [2002] 9-10 S.C. 61@69 lines 5-20; Thomas v. Federal Judicial Service Commission (2018) 2-3 S.C. (Pt. I) 79@100 lines 1-20
14. It is the position of learned claimant’s counsel that an employer has a duty, where termination of employment is based on misconduct, to prove to the Court that the misconduct was actually proved against the employee in order to justify the termination. He relied on Shell Petroleum Co. Ltd v. Olaranwaju, supra @ 43 lines 20-35. He submitted that it was clearly evident in the report of the Committee in Exhibit H7 that the Committee was just looking for evidence at all cost to nail the Claimant and to justify his dismissal. He submitted that where disciplinary process is abused to the prejudice of the employee, the Court is always enjoined to intervene and remedy the situation by declaring such process null and void. He relied on the case of Mariam v. University of Ilorin Teaching Hospital Management Board [2013]35 N.L.L.R. (Pt. 103)40@135 -136 Paras H-D.
15. On issue two, he submitted that the Claimant has shown in his arguments under issue one above how his constitutional right to fair hearing was violated in the procedures and processes adopted leading to his dismissal. He submitted further that the law is trite that where dismissal/termination of employment with statutory flavour is declared unlawful, null and void, the affected employee is reinstated back to his employment with all his entitlements and benefits. He relied on the following cases; Oloruntoba-Oju & 4 Ors v. Abdulraheem & 3 Ors [2009]5-6 S.C. (Pt. II) 57@111 Lines 10 - 20; Olufeagba & 43 Ors v. Abdulraheem & 3 Ors [2009]12 S.C. (Pt. II) 1@42 Lines 15-20; Nnoli v. UNTH Management Board [1994]10 SCNJ 71@75, 91-92. On the claimant’s claim for damages, he submitted that the Claimant has proved various facts that will ordinarily persuade the Court to grant the damages. It is submitted that when the conduct of a party which resulted to the injury suffered by another party is laced with oppression, insolence, spite and contempt for the rule of law, the Court would be right in granting damages against the erring party. He relied on the cases of Odiba v. Azege [1998]7 SCNJ 119@135 Lines 5-10 and; Dr. Kayode Niyi Afolayan & Anor v. University of Ilorin & 3 Ors, supra. He submitted further that since the claimant’s employment with the defendant is one that enjoys statutory flavour, the termination of same must be in strict compliance with the law to be valid. He relied on the following cases; Iderima v. R.S.C.S.C. [2005] FWLR (Pt. 285) 431@457; Nnoli v. UNTH Management Board & Anor. [1994]10 SCNJ 71@85 and; N.B.T.E v. Anyanwu [2005]FWLR (Pt. 256) 1266@1284 Paras. A-F. He urged the Court to grant all the reliefs of the Claimant in this case.
16. Learned counsel on behalf of the defendant filed a reply on points of law to the written address of the claimant on 31st day of January, 2022. He responded that Section 2 of the Public Officers Protection Act also applies to cases of contract. He relied on the case of AMCON v. Astone Quarries Ltd & Anor [2021] LPELR-54146. He submitted that the argument of learned counsel that the cause of action accrued after the pre action notice expired is misconceived and misleading. He relied on the case of Bello v. Yusuf & Ors [2019] LPELR-47918(SC)10F-11B; Exclusive Int’l Ltd & Ors v. Finbank & Ors [2021]LPELR-55818(CA)25D-26A. He submitted also that the claimant’s submission while relying on the case of University of Ilorin v. Dunmade, supra is unfounded and misplaced as that case is distinguishable from the one at hand. He submitted that the circular has the force of law and ought to be judicially noticed by the Court. He relied on Section 122 of the Evidence Act. He submitted that the cases relied on by claimant’s counsel as regards the breach of claimant’s right to fair hearing during the disciplinary proceedings are clearly distinguishable from the case at hand. He submitted that the Court in deciding whether the claimant’s right to fair hearing was breached is the conditions of service which speaks for itself. He relied on the cases of Ikemefuna & Ors v. Ilondior & Ors, supra and Womiloju v. Kiki, supra. He submitted that claimant approbated reprobated in his case. He relied on Nasko & Anor v. Bello & Ors [2020] LPELR-52530(SC); Mamuda v. State [2019]LPELR-46343(SC);Otsanya v. Ojelade & Anor [2021]LPELR-55584(CA). He argued that by the Conditions of service all that is required is issuance of query and in law the issuance of query satisfies the requirement of fair hearing. He relied on the cases of NIMASA v. Odey [2013] LPELR-21402(CA); Nigerian Telecommunication Ltd v. Awala [2001]45WRN@146. He submitted that all that is required of an employer to justify the dismissal of an employee is to show that he gave him an opportunity to be heard. He relied on University of Calabar v. Essien [1996]LPELR-3416(SC);Akpan v. University of Calabar [2016]LPELR-41242;Ntewo v. University of Calabar Teaching Hospital [2013]LPELR-202332 (CA). He submitted that a party who had the opportunity of being heard but refused or failed to utilize it cannot turn to complain of not being heard. He relied on the cases of J.O.E Ltd v. Skye Bank Plc [2009]6NWLR (Pt 1138) 518; Ordor & Anor v. Igwe [2017]LPELR-43609 (CA); Okafor & Ors v. Okafor & Ors [2016]LPELR-420192; Uhembe & Anor v. Parkes [2013]LPELR-20273 (CA). He submitted that for the claimant to succeed on his allegation of breach of right to fair hearing, he must specifically plead the particulars of such denial. He relied on ABU Zaria v. Ekundayo Ors [2021]LPELR-55240 (CA)47F-49D.
17. Learned Counsel also submitted that claimant has not been able to prove his case to be entitled to the reliefs sought and in civil cases, the claimant has to prove his case or same will fail. He relied on Ogwuche v. Benue State Civil Service Commission & Ors [2013]LPELR-22748(CA) and Anaja v. UBA Bank Plc [2011]15NWLR (Pt 1270)377,394E-395A. He submitted that the dismissal of claimant is in line with the conditions of service and it is the duty of the Court in such instance to interpret the document forming the basis of the contract between parties. He relied on the cases of BFI Group Corporation v. Bureau of Public Enterprises [2012] LPELR-9339(SC); Nika Fishing Co. Ltd v. Lavina Corporation [2008] LPELR-2035(SC). He urged the Court to discountenance all the arguments proffered on behalf of the claimant and resolve the issue in favour of the defendant.
18. I have had an indepth consideration of the originating process, the statement of defence and documents tendered by parties as well as the final written addresses of parties in this case, I am of the humble view that the issues that will best determine this case are;
1. Whether or not this suit is statute bared and thus this Court is not seised of the requisite jurisdiction to entertain this case; and if this is answered in the negative;
2. Whether claimant’s employment is clothed with statutory flavour
3. Whether the claimant has proven his case to be entitled to the reliefs sought”.
19. Before I go on to address issues in this case, let me point out that learned Counsel for the Claimant in his final written address had submitted that claimant’s action is an exception to the limitation period in Section 2 (a) of POPA and in doing so he referred the Court to one unreported decision of this Court he captured as “Suit No.: - DR. AYOTUNDE ALAO vs. KWARA STATE UNIVERSITY MALETE & ORS delivered on 21st May, 2019 at pages 16 – 17” Learned Counsel did not even state the suit number of the said case since it is unreported. The said case was also cited in paragraph 5.14 of the address but now with a suit no. Learned counsel in paragraph 5.07 of the said written address also referred the Court to a case captured thus; “(Hon. A. A. Adewemimo) in Suit No.: NICN/IL/16/2017 – DR. KAYODE NIYI AFOLAYAN & ANOR vs. UNIVERSITY OF ILORIN & 3 ORS (unreported) page 21 delivered on 27th November, 2018.” It must be noted that learned Counsel Y.A. Alajo Esq. has the duty to furnish the Court with a certified true copy of the judgments since they are unreported. In the same vein learned Counsel vide paragraph 5.08 of his written address cited a case captured thus; “SHELL PETROLEUM CO. LTD vs. OLARANWAJU (2008) 12 SC. (PT.III) 27” and which authority he relied on in several other parts of the address. Let me point out to learned counsel that he has a duty to cite authorities correctly before this Court. The correct citation of that case is Shell Petroleum Dev. Co Ltd v. Olanrewaju [2008]12SC(Pt III)27 and not SHELL PETROLEUM CO. LTD vs. OLARANWAJU (2008) 12 SC. (PT.III) 27 which he cited. On the above issue of counsel citing authorities to the Court, the Apex Court in the case of Chidoka & Anor v. First City Finance Ltd [2012] LPELR-9343(SC) 13-14, Para D per Muntaka- Coomassie ,J.S.C. held thus; “A counsel who wants the Court to make use of the authorities cited must provide and cite the cases with clarity, i.e. the name of the parties, the year the case was delivered, if it is unreported a certified true copy, where the case has been reported, the name of the law report, the year, volume and the page. To dump authorities on the Court without clear reference, that would not be accepted by this Court... Cases are decided on the facts presented in Court and form the basis of the Court's decision. Where the facts of the case are not known, the Court would not be in the right position to know how the decisions were reached…” [Emphasis mine]. See also the decision of the Supreme Court per Galinje JSC in the case of Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)22, Para D. The unreported authority cited by learned counsel for claimant without furnishing the Court with a certified true copy of the judgment is not useful to the Court. Therefore, the Court cannot rely on same. I so hold.
20. On issue one, learned counsel for the defendant in his final written address submitted that the action of the claimant is statute barred having been filed outside the statutory period of three months provided in Section 2 (a) of the Public Officers Protection Act (POPA) and thus robs the Court of the requisite jurisdiction to entertain the matter. Jurisdiction is the authority of the Court to adjudicate over the questions which gave rise to the cause of action. Jurisdiction is the life blood and bedrock of all trials without which the trial will amount to a nullity. It is the foundation on which all trials thrive. See the following cases; Odom v. P.D.P [2015]6NWLR (Pt 1456)527@548, Paras C-D; Okolonwamu v. Okolonwamu [2019]9NWLR (Pt 1676)1@21, Para A and; GTB v. Toyed (Nig.) Ltd & Anor [2016] LPELR-4181 (CA.). I am mindful of the contention raised by learned counsel for Claimant Y.A Alajo Esq in his final written address that the question of limitation raised by the defendant in this suit is not competent having not been specifically pleaded. I agree with learned Counsel that any special defence including the defence of limitation that is any defence which makes an action unmaintainable ought to be specifically pleaded by virtue of Order 30 Rule 8(1) of the National Industrial Court (Civil Procedure) Rules, 2017. However, it must also be borne in mind that the issue of the claimant’s action being statute barred also touches on the jurisdictional competence of this Court to entertain claimant’s action. In essence, the question bothers on jurisdiction of the Court which is very fundamental. Thus, it can be raised at any stage of the proceedings including at the address stage as is done in this instant suit. See the case of Bajehson v. Otiko [2018]14NWLR (Pt 1638)138@151-152, Paras G-A; Alioke v. Oke [2018]18NWLR (Pt 1651)247@260,Paras B-C and; A.P.GA v. Oye [2019]2 NWLR (Pt 1657)472@490, Para G. Jurisdiction is a sine qua non in all legal proceedings so much that when raised, the Court has a duty to have it settled first one way or the other before the Court proceeds to the substance of the case. See Adama v. Maigari [2019]3NWLR (Pt 1658)26@46, Para A; AG Adamawa State v. AG. Federation [2014] 14 NWLR (Pt. 1428) 570.
21. In the instant case, for the Court to determine this fundamental issue, it has to consider the General Form of Complaint and statement of facts. The defendant contended that the suit of the Claimant is statute barred having been filed outside the three months as provided for by Section 2(a) of the POPA. As gleaned from the originating process in this case, claimant was dismissed vide a letter dated 31st August 2020 and he filed this suit on the 12th day of January, 2021. Y,A. Alajo of counsel has argued in his final written address on behalf of claimant that the cause of action in this case accrued or occurred on 26th December, 2020 when the 30 days of pre-action notice expired because by the provision of Section 17 of the Company and Allied Matters Act, 2020, no action is maintainable in Court against the Defendant unless and until after the expiration of 30 days of the service of a pre-action notice on the Defendant. The Court of Appeal per Adefope Okojie JCA in the case of Mohammed v. Gov of Kaduna State & Ors [2016]LPELR-41331(CA)1@3,Para B while considering when a cause of action accrues to determine whether an action is statute barred held while quoting Odili JSC thus; “... as held in the case of Attorney General Of Adamawa State & Ors V. Attorney General of the Federation (2014) LPELR-23221(SC) per Mary Peter-Odili JSC "..in the consideration of whether an action is caught by the statute of limitation, what is of paramount consideration is the determination of: (a) the cause of action;(b) when the cause of action accrued; and (c) when the action become statute-barred.
To determine the conditions above, what the Court would look at are the Writ of Summons and the Statement of Claim alleging when the wrong which gave the Plaintiff a cause of action was committed and by comparing that date with the date on which the Writ of Summons was filed” [Emphasis mine].In essence, the accrual of a cause of action is measured by when the wrong alleged was committed and it would be determined in this case by taking a look at the General Form of Complaint and Statement of Facts of the Claimant as reasoned supra.
22. Let me point out at this stage that it is settled that a cause of action accrues on the date on which the incident giving rise to the right of action occurs. See also the following cases; Tanko & Ors v. Kusherko [2018]LPELR-46965(CA)1@21, Paras B-B; Registrar, College of Education, Katsina Ala v. Gbande & Anor [2013]LPELR-22825(CA)1@13,Para B. In this case claimant is challenging his query, suspension and trial before the Disciplinary Committee and subsequent dismissal. Put differently, claimant’s cause of action in this case consists of series of several acts. In order to determine the effective date of accrual of cause of action in this case the decision of the Court of Appeal in the case of Shell Petroleum Dev. Co. v. Farah, supra, Per Edozie, J.C.A while relying on the dictum of Oputa J.S.C in Adimora v. Ajufo supra which learned counsel for claimant relied on is instructive and it is to the effect that the accrual of cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action. See also the cases of INEC v. Onowakpoko [2018]2NWLR (Pt 1602)134@163, Paras E-H and; Nweke v. UNIZIK Awka [2017]18NWLR (Pt. 1598)454@475, Paras F-G. In this case though claimant is also challenging his query, suspension and trial before the Disciplinary Committee, his cause of action has not fully accrued until he was served with the letter of dismissal and that was when his cause of action becomes complete and when he could successfully begin to maintain an action against the defendant. In essence, claimant’s cause of action was accruing overtime by the query, suspension and trial by the Central Disciplinary Committee but accrued fully with the dismissal of claimant. It is my humble view that the service of pre action notice is not part of when the cause of action accrued as it is not part of the acts of the defendant which claimant is complaining of in this case, rather it is part of the step or process the claimant has to take to maintain his action against the defendant. That is, the service of the pre-action notice is part of the steps claimant took in order to begin this action against the defendant for the wrongs committed against him which wrong became completed by his dismissal and as such cannot be considered in deciding the effective date of accrual of the cause of action. It then means that the cause of action would be said to have accrued when the letter of dismissal was served and same is to be compared with the date the General Form of Complaint was filed. In this case, claimant was dismissed from the service of the Defendant on the 31st day of August 2020 which dismissal he is challenging in this case. I agree with the position of learned counsel for the defendant F. Ogbu Esq in his submissions before this Court in the final written address and the reply on points of law that the cause of action accordingly accrued on the 31st day of August 2020.
23. It is now firmly settled that the terms “any person” used in Section 2 (a) of POPA includes both natural and artificial persons. In fact, it includes both Public officers and Public institutions. See the case of Ibrahim v. Judicial Service Committee, Kaduna State [1998] 14NWLR (Pt 584)1; University of Jos v. Ikegwuoh [2013] 9 NWLR (Pt 1360) 478. It then means that the defendant herein is a public officer under the provisions of the Section 2 (a) of the POPA. Be that as it may, I am of the view that the rule created by Section 2 of the POPA permits certain exceptions which are; cases of breach of contract; recovery of land; claims for work and labour done; claims on continued damage/injury amongst others. See Roe Limited v. University of Nigeria [2018] LPELR- 43855 (SC)1@21 Paras D-G and National Insurance Commission v. Shehu Aminu & Anor [2011] LPELR-19751(CA); Radiographers Reg. Board, Nig v. M.& H.W.U.N[2021]8NWLR (Pt 1777)149. Emphatically, the Supreme Court in the case of National Revenue Mobilization and Fiscal Commission &2 Ors v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 @ 269-271, Paras H-C per Ariwoola JSC reiterated the position of law thus; “Ordinarily, the purpose of the public officers protection law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of…There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construction General, Farsura Cagefar Spa & Anor [1974] All NLR (PT. 2) 463; Osun State Government v. Danlami Nig. Ltd [2007] 9 NWLR (PT. 1038) 66; [2007] 3 SC (PT. 1) 131; [2007] 6 SCM 145; [2007] LPELR-2817.”… I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred.
In sum, I hold that the learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents. The issue is accordingly resolved against the appellants” [Emphasis mine]. See also the cases of CIL Risk & Asset Mgt Ltd v. Ekiti State Govt [2020]12 NWLR (Pt 1738)203 and; Musa v. N.I.M.R. [2010]11NWLR (Pt 1205)271. The above case of National Revenue Mobilization and Fiscal Commission &2 Ors v. Ajibola Johnson & 10 Ors, supra is similar to this case in that it is on contract of service as in this instant. It is obvious that the claimant filed this suit outside of the 3 months limitation period, Adah JCA in Barrister Talib S. Raji v. Hon. Min, federal Ministry of Education & Ors Unreported Suit No. CA/A/CV/813/2020, judgment delivered on 30th September, 2021, whilst considering similar issue on limitation law POPA, held at page 26 thus “ It is well established that the purpose of statute of limitation as was held in the case of Abdulrahman v. NNPC (Supra), is not for witch-hunting and vendetta. It is a law that bars a claim after a specific period. It establishes a time limit for suing in a civil case based on the date the claim accrued. The purpose of such a statute is to require diligent prosecution of known claims thereby providing finality and predictability in legal affairs. The purpose of limitation like equitable doctrine of laches, in their conclusive effect is to promote justice by preventing surprises through the revival of claims that have been allowed to slumber. Sugrave Holdings Inc. v. FGN [2012] 17 NWLR (PT. 1329) 309” I find it obvious from the General Form of Complain and the Statement of facts of the claimant, that first, the claimant’s case falls under the exceptions created by case law authorities and secondly, he promptly approached this Court to ventilate his grievances. The purpose of the limitation law is to prevent the claimant from prosecuting stale demands where the defendant might have lost evidence to defend their case. This purpose has not been defeated in this instant, as the claimant promptly instituted this suit. Consequently, I find that claimant’s case is not caught up by the limitation period of POPA.
24. I am mindful of the case of AMCON v. Astone Quaries Ltd & Anor,supra a 2021 case relied on by the defendant that POPA applies to cases of contract. It is worthy of note that the Court of Appeal in that case was relying on an earlier decision of Charles Ibekwe v. Nigeria National Petroleum Corporation [2011]6NWLR (Pt 1243)245 which was a case that was decided earlier before the case of National Revenue Mobilization and Fiscal Commission &2 Ors v. Ajibola Johnson & 10 Ors, supra which was Supreme Court case that was decided much later in 2019 and CIL Risk & Asset Mgt Ltd v. Ekiti State Govt, supra decided in 2020 which clearly held that POPA does not apply to cases of contract including contract of service as in this case. I find the case of Ajibola Johnson, supra and CIL Risk & Asset Mgt Ltd v. Ekiti State Govt, supra more apposite in this case and are thus relied on. In essence, the claimant’s right of action and access to relief cannot be extinguished by the limitation period in Section 2a of POPA as it does not apply to cases of contract. I so find and hold.
25. Let me equally address the contention raised by the defendant in its final written address in paragraphs 4.2.0 that the claimant ought to have exhausted avenues provided in the Public Service before approaching the Court. According to learned defence counsel, the claimant is bound by the provisions of the extant circulars, regulations and the Conditions of Service and specifically Circular No Ref HCSF/SPSD/ODD/649277/1 dated 15th May, 2017 issued by the Head of Service prohibits every P0ublic Civil Servant from going to Court without exhausting avenues provided in Circulars and Public Service Rules and as such Civil servants must seek and obtain the permission of the Head of Civil Service of the Federation before proceeding to Court. Let me first state that parties including their counsel are bound by their pleadings and as such a counsel cannot go outside the pleadings of a party to set up another case. The defendant throughout its pleadings did not plead facts to which the circular relate or the fact that claimant did not exhaust administrative remedies before instituting this action. The alleged circular was equally not tendered in evidence by the defendant. In the same vein, it is also settled law that a written address of counsel no matter how fanciful and brilliant cannot be a substitute for pleadings or evidence which the Court can act on. In other words, address of counsel cannot take the place of pleading by a party or its evidence where there is none. See Asalu & Ors v. Dosunmu [2019] LPELR-49113(CA)1@51, Para E; Angadi & Ors v. PDP [2018] LPELR-44375(SC)1@51, Para B and; Ayorinde v Sogunro [2012] 11 NWLR (Pt. 1312) 460 @ 501 Paras D-E. Thus, having not pleaded these facts or tendered the Circular in evidence, the said submission of learned defence counsel on the second issue formulated in the final written address is discountenanced.
26. Assuming the said circular was even pleaded and tendered in evidence, it must be borne in mind that the right to access the Court is a Constitutional right enshrined in Section 6 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) (hereafter referred to as Constitution) and which right can only be taken away by the Constitution itself. See the case of Global Excellence Communication Ltd & Ors v. Duke [2007]LPELR-1323(SC)1@26, Para A. The Constitution is the ground norm from which all the other laws of the country derive their validity. Each regulation, rule or any normative prescription in the society derives its validity from the Constitution and any laws, rules, regulations etc. that are in conflict with the provisions of the Constitution are to the extent of the inconsistency, null, void and of no effect. See Section 1 (3) of the Constitution and the case of Military Govt. of Ondo State v. Adewunmi [1988] 3 NWLR (Pt. 81) 280 where the Apex Court voided and nullified the provisions of Ondo State Edict No.11 of 1994 for being inconsistent with the unsuspended parts of the 1979 Constitution. See also the case of Marwa & Ors v. Nyako & Ors [2012]LPELR-7837(SC)1@76-77, Para C and INEC v. Musa [2003]LPELR-24927(SC)1@35-36,Para B. In my respectful view an unhindered and unfettered access to Courts of law by citizens of a country to vent their grievances against the government or individuals is the hallmark of rule of law, and democracy. Such right cannot be taken away by any one or any authority under any guise whatsoever. See the cases of Ikpeazu v. Ogah & Ors [2016] LPELR-40843(CA)1@36-37,Para F and Dagazau & Anor v. Borkir Int’l Co Ltd & Anor [1999]LPELR-13366(CA)13-14,Paras E-E. Section 6 (6) (b) of the Constitution guarantees access to the Superior Courts of record one of which is this Court in all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto for the determination of any questions as to the civil rights and obligations of that person. Section 36(1) of the Constitution equally provides for unlimited access to Court within reasonable time for determination of any civil rights and obligations. There is no doubt that this case is based on employment. It is germane for me to state here that this Court by virtue of Section 254C (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) is endowed with exclusive jurisdiction to adjudicate on civil causes and matters relating to or connected with any labor, employment, trade union, industrial relations and matters arising from workplace, the condition of service, including Health, safety, welfare of labour, employee, worker and matters incidental therewith. In other words this Court has the vires to determine cases relating to employment and other matters relating, or incidental to or arising from workplace. See the cases of CBN v. Oodo [2021]18NWLR (Pt 1809)461@512, Paras B-C; Omang v. NSA [2021]10NWLR (Pt 1783)55@84-85, Paras D-E; Cocacola Nig. Ltd v. Akinsanya [2017]17NWLR (Pt 1593)74@129-130, Paras F-F,132, Para D.
By the combined effect of Sections 6(6) (b), 31(1) and 254C(1)(a)of the Constitution, the right of a person in respect of causes or matters on employment, labour or industrial relations or any matter incidental thereto to approach this Court cannot be limited by any Circular or whatsoever issued by the Head of Service or whoever. The above cited Circular violently conflicts with several provisions of the Constitution because if it was to be applied it would stand in the way of an aggrieved party in his/her bid to take advantage of several clear provisions of the Constitution that guaranteed his/her unfettered access to the Courts for the determination of his/her civil rights or obligations. For the Head of Service to issue such a Circular which is in the realm of subsidiary legislation and subordinate in all fronts to the Constitution, stating that his permission must be first sought and obtained before an aggrieved Public or Civil Servant approaches the Court smacks of absolute power that could lead to dictatorship and totalitarian leadership because power corrupts and absolute power corrupts absolutely. Such Circular (even if in existence) should never be allowed to stand for being inconsistent with the Constitution and as such cannot limit the right of the Claimant to access the Court. Accordingly, the said circular is null and void to the extent of its inconsistency to the 1999 Constitution as amended. In view of the foregoing, question one is resolved in favour of the claimant against the defendant. I so find and hold.
27. Now to issue two, it is well settled in our labour jurisprudence that there are basically three types of employment relationships. They are; a). Purely master- servant relationship; b) where servants hold the office at the pleasure of the master and; c) employment with statutory flavour. See the case of Comptroller General of Customs v. Gusau [2017] LPELR- 42081(SC)1@30-31, Para F; CBN v. Igwillo [2007] LPELR-835 (SC)1@20, Para B. Exhibit Y which is the claimant’s employment letter and what I can call the initiator of the employment relationship clearly provides for the terms and conditions which will govern the employment relationship of the parties in this case. It is well settled in law that document legally speaking speaks for itself. See the case of Asuquo &Anor v. Omole & Anor [2019] LPELR-47867 (CA)41, Para A. Exhibit Y clearly states that the appointment shall be subject to the terms and conditions laid down by the Commission. It equally states that the entitlements and allowances of the claimant are as per the Commissions’ Conditions of Service. Thus, there is no doubt from the facts of the case that the claimant’s employment was governed by the conditions of service herein as Exhibit Y8 (also Exhibit H6).The Apex Court in the case of Oforishe v. Nigerian Gas Company Ltd [2018]2 NWLR (Pt 1602)35 @60-61, Paras G-A; held that conditions of service are said to have statutory flavour where they are expressly set out by statute or statutory regulations made under a statute, such as Civil Service Rules, which must be enacted by the Parliament or any law making body as a Schedule to the Act or law as subsidiary Legislation. Now it is expedient at this stage to consider the question of the applicable law to the case of the claimant. In the case of SPDC v. Anaro [2016]LPELR-24750(SC)1@29, Para A, the apex Court held that the law applicable to a case is the law in force when the cause of action accrued/arose. See also the case of Zubair v. Kolawole [2019] LPELR-46928(SC)1@19, Para A. The law applicable at the time of determination of an action may however be different. See the case of Chevron Nig Ltd v. Nwuche & Ors [2014] LPELR-24291-(CA). As reasoned supra in this case, the cause of action accrued in this case on the 31st day of August, 2020. The Companies and Allied Matters Act, 2020 (hereafter referred to as new CAMA) was signed into law on the 7th day of August, 2020. Consequently, it is my candid view which is rooted in law, that the law applicable to Claimant’s case is the extant Company and Allied Matters Act 2020; which was the law in force when the cause of action accrued. I so find and hold.
28. Now, judicial authorities are all in agreement on the following; that the fact that an employer is the creation of statute does not elevate its employment to the status of employment with statutory flavor; there must be some preconditions on which a valid appointment or determination must be predicted for the employment to have statutory flavor. See for instance, the cases of PHCN v. Offoelo [2012] LPELR-19717 (SC)25-26, Para E; Nigerian Gas Co. Ltd. v. Dudusola [2005] 18 NWLR (Pt. 957) 292 and; Fakuade v. OAUTH [1993] 5 NWLR (Pt. 291) 47. The fact that the employer is a Federal Government agency or a statutory body does not automatically mean that the conditions of service of its employees must be of special character ruling out the relationship of mere master and servant. See the case of FMC, Ido Ekiti v. Alabi [2912]2NWLR (Pt 1285)411 and Shuaibu v. UBN Plc [1995]4NWLR (Pt 388)173. It is only when the employment is protected by statute which makes the provisions for the procedure for the employment and termination of such employment that it can be said that the employment is clothed with statutory flavor. In fact, the Court in the case of Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303 held that the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See also the cases of NEPA v. Adesaaji [2002] 17 NWLR (Pt. 797) 578 and; Iloabachie v. Philips [2002] 14 NWLR (Pt 787) 264, CA. It is clear that Section 2 of the CAMA 2020 established the Board and in Section 4(e) gives the Board the power to determine the Conditions of Service of the employees of the defendant. It is clear on the face of Exhibit Y8 which the claimant is relying on that it is not the Conditions of service made by the Board pursuant to the new CAMA 2020. It is clear on the face of Exhibit Y8 that it was made in June 2011. Apparently, Exhibit Y8 was made prior to the coming into force of CAMA 2020 and there is no evidence before this Court that the Board has adopted it as its Conditions of Service pursuant to its statutory power in new CAMA 2020 in which case it would have qualified as a regulation made pursuant to statutory provision capable of clothing the employment with statutory flavor. In fact, there is no evidence before this Court that the Board has even exercised its power under Section 4(e) of CAMA, 2020 by making a Condition of service and that same was given to the claimant or incorporated to his employment prior to his dismissal on the 31st day of August 2020.
29. Assuming that it is even the old CAMA 2004 that is applicable in this case, which fact is not conceded, I have read through the whole of the repealed CAMA and I cannot find any provision in it that clothes the employment of claimant with statutory flavor. I say so in view of the fact that in the recent decision of the Supreme Court in Kwara State Judicial Service Commission &Ors v. Tolani[2019]LPELR-47539(SC)20-26,Paras C-C, the Court clearly reiterates the criteria that will make an employee's appointment statutory or with elements of statutory flavour and conditions. The Court per Odili, JSC stated thus; “On the question whether or not the employment in issue enjoys statutory flavour, I need to state very humbly too, that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are: -(i) The employer must be a body set up by the Constitution or statute and;(ii) The statute or regulations made pursuant to the Constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline…”[Emphasis mine]. The repealed CAMA did not empower the Board to make Exhibit Y8 which claimant is relying on in this case. Thus, it cannot be said that the said Exhibit Y8 was made pursuant to the old CAMA in which case it can be regarded as a regulation for it to give the claimant’s employment statutory flavor. I have taken a closer look at Sections 9 and 11 of the old CAMA and I cannot find anywhere in those Sections where it could be inferred that the employment of the claimant had statutory flavor. The fact that Section 11 provided that employment in the defendant is pensionable does not automatically clothe the employment with statutory flavor. See the case of Imoloame v. WAEC, supra.
30. The import of the above decision is that where the employer is a creation of the Constitution or any other statute and the Constitution or the statute or regulations/subsidiary legislation made pursuant to the Constitution or statute spells out the conditions regulating the employment of staff of the category of the employee concerned especially in matters of discipline, then such employment is clothed with statutory flavour. One of such regulations is the Public Service Rules which governs employment in the public service of the Federation part of which is an agency of Federal Government like the defendant. However, the claimant did not plead that the Public Service Rules was applicable to his employment as a public servant in which case the Court would have held that by virtue of the Constitution pursuant to which the Public Service Rules were made, the employment would be statutory on the authority of Comptroller General of Customs v. Gusau, supra. It is a well settled principle of our law that parties and the Court are bound by the pleadings of the parties and the Court cannot go outside the pleadings of parties or make a case for parties different from the ones they have made in their pleadings. See the cases of APC & Ors v. Aguele [2020]LPELR-51029(CA)1@71, Para D;Garba v. Garba & Ors[2017]LPELR-43154(CA)1@15,Para A and; Dada v. Dosunmu [2006]LPELR-909(SC)1@17,Paras C-C. The pleading of the claimant is clear in that it is the Conditions of Service of the Defendant that binds his employment. On the basis of the pleadings before the Court, I am of the respectful view that there is nothing before the Court to justify that the employment of the claimant herein is one clothed with statutory flavor. Besides, the letter of employment of claimant which is herein as Exhibit Y clearly provides for the terms and conditions of the employment including the length of notice in the event of termination. In fact it states specifically in item ‘6’ that other entitlements and allowances of Claimant are as per the Commission’s (defendant’s) Conditions of service. It is thus clear that it is the Conditions of service of the defendant that governs the employment. Thus, there is no statutory protection for the employment of the claimant. See also the decision of the Court of appeal in the case of Kulu v. CAC &Anor [2020]LPELR-50466(CA)1@28-48,Paras B-B. Consequently, this Court finds that the employment of the claimant on the basis of his pleadings is not one clothed with statutory flavor.
31. Before drawing the curtain on issue two, it is important I state here that the parties including their counsel are not permitted to approbate and reprobate at the same time. They are to be consistent in the presentation of their cases. See the case of Mujaid v. IBEDC Ltd [2020] LPELR-49740(CA)1@32-33, Para C and FRB v. Iweka [2011] LPELR-9350(SC)1@56-57, Para F. In fact, a counsel owes it a duty to be consistent in his submissions on legal issues in the presentation of his case. See the cases of Owoeye & Ors v. Isiyemi & Ors [2019]LPELR-48067(CA)1@34-35, Para A and Adamu v. Leedo Presidential Motels Ltd & Anor [2015]LPELR-25918(CA)1@15-17, Para A. Learned counsel for the defendant, F. Ogbu Esq in one breathe in his final written address vehemently argued as to the applicability of the Public Service Rules to the claimant’s employment and argued also that claimant was a Public Servant governed by the Rules and regulations of the Public service and in another breathe was arguing and urging the Court to hold that claimant’s employment was not statutory. Let me point out to learned counsel for the defendant that the mere fact that he argued that claimant is bound by the provisions of the PSR or that PSR governs his employment is a clear indication that the employment would be statutory. See the cases of Oforishe v. Nigeria Gas Co. Ltd, supra and; Comptroller General of Customs v. Gusau,supra. In which case, the Constitution would be the enabling statute from which the power of the Federal Civil Service Commission to make the PSR is derived and the PSR has been written into the contract of employment of all public servants in Nigeria by virtue of the Constitution. Thus, if PSR applies to claimant’s employment as learned counsel argued, then his employment would be statutory. Learned counsel cannot in one breathe urge the Court to hold that the provisions of the PSR binds Claimant’s employment when seeking to enjoy the benefits of the said PSR against the claimant and in another breathe urged the Court to hold that claimant’s employment does not have statutory flavor. He is not allowed to say one thing and then summersault in another breathe. Learned counsel for the defendant therefore, seems to lack knowledge of the type of employment relationship that regulates the relationship of his client and the claimant. This is most unfortunate. Be that as it may, it is evident from the foregoing and all reasoned earlier in this judgment, that the employment of the claimant with the defendant is not statutory. Issue two is thus resolved against the Claimant.
32. On issue three, the claimant herein is alleging an unlawful termination of his employment. The law is on a firma terra that in cases for claims based on alleged wrongful or unlawful termination of employment, the burden is on the claimant to satisfactorily prove that: - (a) He was an employee of the defendant; (b) The terms and conditions of the employment and; (c) That the employer in fact breached the terms and conditions of the employment and the manner in which the breach occurred in the termination of the employment. See the following cases; Oak Pensions Ltd & Ors v. Olayinka [2017]LPELR-43207(CA)1@19,Para C; Ogumka v. CAC[2010]LPELR-4891(CA)1@17-18,Para F; ldoniboye-Obu v. NNPC [2003] 2 NWLR (Pt 805) 589 ; Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt 622) 290 and Katto v. CBN [1999]LPELR-1677(SC)1@9-10,Para D. The claimant herein pleaded that he was an employee of the Corporate Affairs Commission having been employed vide his letter of employment dated 25th January, 2012. In support of this assertion, he tendered Exhibits Y, Y1 and Y2. Claimant herein pleads vide paragraph 30 of the statement of facts that the issuance and service of query, suspension letter and subsequent letter of dismissal on him were unjustified and in breach of the Conditions of Service. It is trite that where an employee alleges wrongful termination or dismissal, the onus will usually be on him to prove wrongful termination or dismissal as the case may be. To do this, the apex Court in the case of Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 @370, per Agbaje, JSC (Retired) had this to say: “Since it is the Plaintiff's case, that his dismissal by the Defendants is not in accordance with the terms and conditions of the contract of service, between them it is for the Plaintiff to plead and prove the conditions of service regulating the contract of service in question. It is also for the Plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him. [Emphasis mine]. In essence, Claimant in the instant case have the onus to plead the terms and conditions governing the employment and plead in what way the conditions has been breached by the employer who is the defendant herein. See the cases of Oak Pensions Ltd & Ors v. Olayinka [2017]LPELR-43207(CA)1@19, Para C; Onyeukwu v. First Bank of Nigeria Plc [2015]LPELR-24672(CA)1@16-17, Para D; Katto v. CBN [1999]LPELR-1677(SC)1@9-10, Para D and; Olanlege v. Afro Continental (Nig)Ltd [1996]LPELR-2568(SC)1@26,Para E. Claimant accordingly pleaded the conditions of service of the defendant which governs the employment and tendered same which is marked as Exhibit Y8 (also H6). However, he did not plead or prove the way and manner in which the conditions of service were breached by the defendant. He merely pleaded vide paragraph 30 of his statement of fact that the query, suspension and dismissal were in breach of the conditions of service neither did he plead the particular term and conditions of employment that was breached by the issuance of query, suspension and dismissal.
33. Albeit, in this case, claimant did not complain of breach of any specific conditions of his service or any part of the Conditions of service, which the defendant failed to observe, or to comply with in dismissing him. Claimant was, actually, complaining about being denied fair hearing in the processes which led to his dismissal. It is the contention of the claimant vide paragraph 23 of his statement of facts that while before the Disciplinary committee, he was not given opportunity to know the evidence the other persons invited by the Committee gave behind him let alone being given the opportunity to cross examine them. In cases of this nature where an employee complains to the Court that his dismissal on grounds of misconduct was done without fair hearing, what the Court is expected to look out for first, is whether the dismissal was in accordance with the terms of the employment and secondly whether the principles of audi alteram patem which imposes a duty upon the employer to act fairly has been observed. It is trite that he who has a right to hire has a corresponding right to fire. However, the employer in exercising his right of summary dismissal over an employee must first afford the employee a right to be heard fairly before his dismissal. In most cases, employers and employees have the responsibility of drawing up disciplinary procedures which shall ensure that the employee has enjoyed the Constitutional right to fair hearing before any action which could lead to the determination of his employment is resorted to by the employer. Accordingly, where the disciplinary procedure is incorporated into a contract of employment, failure to follow that procedure may give rise to an action for breach of contract against the employer. I have gone through the whole of the provisions of Exhibit Y8 which is the Conditions of service and I find clearly in Chapter Four the disciplinary procedure of any employee of the defendant. It is hornbook law that parties are bound by the terms of contract and the duty of the Court is to interpret the terms of the contract to reflect the intention of the parties. See the following case; Keystone Bank Ltd v. Clarke [2020] LPELR-49732 (CA) 24, Para A; Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt) Board & Anor [2019] LPELR-47355 (CA) 25-27, Para E; Adejumo v. Agumagu [2015] 12 NWLR (Pt 1472) 1 and; Omega Bank (Nig.) Plc v. O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547.
34. For clarity’s sake, let me reproduce the provision of Chapter four of the disciplinary procedure thus.
DISCIPLINARY PROCEDURE
4.01QUERY
(a) Where a staff commits an act of misconduct or offence which constitutes a breach of this Conditions of service, he/she shall be queried and required to make written representations within 24 hours or 5 working days as the case may be.
(b) If the employee fails to comply with the request within the time given or refuses to receive the query, he/she shall be deemed to have admitted guilt and summary disciplinary action may be instituted against him as appropriate.
(c) Where in the opinion of Management, it is considered that the presence of the employee will jeopardize investigations or where the offence is considered serious in nature, the staff shall be immediately suspended without pay.
4.02 RESPONSE TO QUERY
The written representation shall be channeled through the Heads of Department/State Office to Personnel Department for appropriate action.
4.03 IMPLEMENTATION
(a) Where the response to a query is found to be satisfactory, such officer shall be exonerated and a letter to that effect shall be written to the officer by the Personnel Department.
(b) Where the response to a query is found to be unsatisfactory, the appropriate punishment shall be applied as stipulated in this Conditions of Service or refer the matter to the Central Disciplinary Committee as the case may be.
35. The provisions of the disciplinary procedure are easy to comprehend and they do not require any special aid to understand and the said provision is binding on both claimant and defendant. The provision is to the effect that an accused employee of the defendant may be queried and suspended without pay where in the opinion of the management the offence is of a serious nature. It equally provides that the employee would be allowed to respond to the query but where his or her response is found to be unsatisfactory, he or she shall be referred to the Central Disciplinary Committee. For a start, the disciplinary procedure did not make provisions for the procedure to be adopted by the Central Disciplinary Committee neither is there any provision in the whole of Exhibit Y8 that made provisions for the procedure to be adopted by the Central Disciplinary Committee. Thus, it means that the disciplinary Committee may adopt any procedure whether by written representations of by physical appearance provided fair hearing is observed. From the facts reviewed above, it is clear that the disciplinary committee deployed several methods in the process that led to the dismissal of the Claimant. They adopted the procedure of issuance of query and reply to same, while the other procedure evinced on record was by way of sitting of a Disciplinary Committee. While conceding in this case that Exhibit H7 the Report of the Central Disciplinary Committee which investigated Claimant, was not a decision of a Court and not binding on this Court, this Court has a duty to consider whether or not the said Committee accorded the Claimant fair hearing while he stood trial before it. This is because administrative bodies when considering cases of misconduct are equally to obey the principle of fair hearing as the principle binds both administrative and judicial bodies. In the case of Judicial Service Commission of Cross-River State & Anor v. Young [2013]LPELR-20592(SC)1@19-20, Para E, the Supreme Court per Odili JSC held thus; “...when an administrative or domestic tribunal is to determine whether an officer is guilty of misconduct or of a breach of the regulations, then a "lis inter partes" arises and so thrown up the necessity for a hearing before deciding and in such a case, the administrative body is acting judicially and the principles of fair hearing binding on judicial bodies would by the same token bind such administrative bodies. I place reliance on District Officer v. Queen (1961) SCNLR 83; Hart v. Military Governor of Rivers State (1971) 11 S.C. 211; Legal Practitioner Disciplinary Tribunal v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt.7) 300 at 347; Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt.192) 388 at 414.” [Emphasis Mine]. See also the following cases; Boko v. Nungwa & Ors [2018]LPELR-45890(CA)1@46-48,Para E; Gyang & Anor v. COP Lagos State & Ors [2013]LPELR-21893(SC)1@12-13, Paras A-A and; Adeniyi v. Governing Council of Yabatech [1993]LPELR-128(SC)1@30,Para B. Now, did the defendant follow the fair hearing procedure at the disciplinary committee?
36. It is worthy of note that an employer needs to justify the termination of its employee by showing that the tenet of fair hearing was observed before the dismissal of such an employee. In the case of University of Calabar v. Essien [1996] 10 NWLR (Pt.447)225 @262, the Supreme Court per Iguh JSC held thus; “Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer needs establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation.” The apex Court has long before now in the case of Olatunbosun v. Nigerian Institute for Social and Economic Research [1988]3 NWLR (Pt. 80)25@52 explained what fair hearing means in respect of discipline of an employee, therein Oputa, JSC (of blessed memory) emphatically stated thus: “The right to fair hearing arises where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the appellant. In every case of dismissal or termination of appointment which may vitally affect a man's career or his pension in such a case it is equally vitally important that the appellant is afforded ample opportunity to defend himself.”[Emphasis mine] What will amount to denial of fair hearing depends on the facts of each case but it must be borne in mind that perversity is not an accepted attribute of any judicial or quasi-Judicial body. I have gone through the evidence on record from both parties and it is clear that claimant was first issued a query herein as Exhibit Y3 in compliance with the provision of Chapter Four of Exhibit Y8 which he responded to after which he was issued a suspension letter in Exhibit Y4. After about 5 months on suspension claimant was invited to appear before a disciplinary committee by Exhibit Y5 due to the recommendations in Exhibit H5. As stated earlier claimant’s major contention in this case is that he was not afforded fair hearing by the Disciplinary Committee in that he was not allowed to know the testimony of those who testified behind him let alone cross examine them. The defendant in response vide its amended statement of defence stated that the claimant was aware of the allegations against him and every other person was allowed to ask question but he decided not to ask any question of any other person and it was his election. The report of the Disciplinary Committee Exhibit H7 is documentary evidence which is to give a detailed account of the disciplinary proceeding. It is worthy of note that DW1 stated under cross examination that the Secretary took down all that transpired at the Proceedings and it was from the Minutes that the report was written. However, he admitted that the minutes is not before the Court, but the report. As stated supra, document legally speaks for itself. I have gone through the whole of Exhibit H7 and there is nowhere in it where it was indicated that Claimant was the one that elected not to ask questions as posited by the defendant. I have in mind the answer of the claimant under cross examination in this case that there was a time he was brought together with the accuser and the agent. Let me point out that the fact that claimant was at some point brought together with his accuser does not mean he had an opportunity to cross examine him or any other person for that matter. As such, the testimony of the DW1 that claimant was given opportunity which he failed to use is of no evidential value. In the absence of any credible evidence that the Claimant knew the testimony of those who testified behind him or that he was given opportunity to cross examine them but he failed to explore, the ipse dixit of the DW1 in his written statement on oath that the Claimant failed to cross examine the witnesses will not exculpate the defendant from non- compliance with the rule of natural justice and fair hearing.
37. It is equally clear from the facts of this case and the testimony of witnesses that the alleged statement which formed the basis and major part of defendant’s allegation of fraud against claimant was not given or shown to the Claimant. DW1 conceded this much under cross examination that the Statements of the customer were forwarded to the Committee and same were relied on by the Committee and none of these statements was availed the Claimant. I find this to be in clear breach of the twin pillars of natural justice. Which is the essence of setting up the disciplinary committee, id est to hear from all parties especially the claimant for the alleged fraud. Except if the defendant had a different aim at setting up the disciplinary committee. It is trite that every employer has a right to dismiss its employee and the defendant herein is not an exception even where same is not specifically provided for in the contract between parties especially for gross misconduct. See case of Simon Ansambe v. Bank of the North Ltd [2005]8NWLR (Pt 928)650. In fact the Supreme Court was quite emphatic in the case Ziideeh v. RSCSC [2007]LPELR-3544(SC), [2007]3 NWLR (Pt 1022)554 when it held thus; “It is now firmly settled that in statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided in the course, the employee is given the opportunity of fair hearing.” The defendant in this case through the instrumentality of the Committee has by itself adopted the oral and physical representation mode of proceeding and in doing same they should have complied with the principle of fair hearing by allowing claimant to cross examine his accusers and should have also availed him copies of the documents used against him especially the alleged “confession” which in the view of the Committee incriminated claimant. The law is that any proceedings conducted in breach of a right to fair hearing is a complete nullity.
38. Allied to the above is the well settled principle of our employment law that an employer in an employment not clothed with statutory flavor can terminate the employment of its employee for good or bad reasons. I must point out here that the state of our labour law as it is today is that it is no longer fashionable for an employer to determine its relationship with an employee without a reason and where an employer gives reason for the termination of employment/dismissal of an employee, he must justify or prove that the reason is true to the satisfaction of the Court, as the onus is on him to prove what he has asserted otherwise the dismissal may constitute a wrongful dismissal. See Nwechi v. Union Bank [2018] LPELR-47074(CA)1@13-14, Paras A-A; I.H.A.B.U.H.M.B v. Anyip [2013]12NWLR(Pt 1260)1@19, Paras E-F (SC).
39. It is effulgent on Exhibit Y6 that the reason claimant was dismissed from the services of the defendant is for touting and fraud. From the report that is Exhibit H7 it is clear claimant never at any point admitted the allegation against him. The report also shows that the agent who is named as Abubakar Salisu (Atikulate) who filed for the Company registration when appearing before the Committee mentioned only the name of one Abatcha who is a co-accused of the Claimant as the person who lured him into the whole thing and handled the entire registration process from the beginning. It is clear from Exhibit H7 that the agent never indicted the Claimant herein through-out his testimony before the Committee. The only officer of the defendant indicted was Abatcha. I have equally gone through the testimonies of others before the Committee, it is clear from the testimonies of all those who appeared before the Committee that only three persons testified as to the alleged or perceived involvement of the Claimant. In fact the testimonies of the two witnesses that is one Waziri Isa, Shamsudeen Umar Jongur and Aliyu Khama who mentioned the claimant only testified to the extent that the Claimant kept the file in a cabinet and asked one Aliyu Khama to pick some documents on his table and give to one Shamsudeen to insert. There was no other testimony that indicted the claimant as being directly involved except for keeping the file elsewhere and asking Aliyu Khama to give Shamsudeen some documents to put in the file. Abatcha who was the only one mentioned by Agent/lawyer for whom the registration was done even denied being contacted by Tijani Yusuf (the claimant) as claimed in the findings of the Committee against the Claimant. By the provisions of Chapter One, paragraph 2.12 of Exhibit Y8, the misconduct of touting is defined as follows: “Touting: This shall mean going out of ones schedule to accept, receive any incorporation documents, fees, or doing any other thing for monetary consideration or benefits for the purpose of facilitating the services rendered by the Commission.” Based on that definition, and in view of the circumstances of this case coupled with the testimony of the lawyer in Exhibit H7, I do not find how Claimant can be found culpable by the Committee of touting when the Agent clearly stated in his testimony that Abatcha was the one who met him some time ago and said whenever he has big briefs, he should let him know, so when he got the brief he told him and Abatcha approached him again with the idea of short changing the defendant. How then did the Committee find Claimant culpable of touting when it is clear from the testimony of the agent that it was Abatcha who was indicted for touting by approaching the counsel to lobby for big briefs?
40. I am not unmindful of the averment of defendant in paragraphs 17 and 26 of the amended statement of defence that the lawyer who is co-culprit stated that claimant and Abatcha Nuhu connived with him and mentioned claimant’s name in his written statement before the Central Disciplinary Committee. This fact was reiterated in paragraphs 17 and 26 of the written statement on oath of DW1 which has already been adopted in this case. First, as stated earlier in this judgment there was nowhere in the report where the lawyer/agent in his testimony before the Committee mentioned the name of the claimant as one of his co-conspirators as the defendant would want this Court to believe by its amended statement of defence and the written statement on oath. It is trite that oral evidence will not be allowed to discredit or contradict clear contents of a document. See the cases of Ashakacem Plc v. Asaratul Mubashshurun Invetsment Ltd [2019]LPELR-46541(SC)1@14-16, Paras D-D and; Ogbe v. Kogi State Govt & Ors [2018]LPELR-44796(CA)1@46-47, Para B. The rationale for this rule is because a document cannot lie unless by direct human intervention. A human being is more prone to telling lies in Court, especially as he sees the trend of evidence in order to favour himself. See the dictum of case of Niki Tobi, JCA (later JSC, now of blessed memory) in the case of Michael Dan Udo v. Chief C. Udom Eshiet [1994] 8 NWLR (Pt. 363) 482@503, Paras. B-D. Thus, the report of the committee containing the testimony of the lawyer, Exhibit H7 speaks for itself. It cannot speak through the pleadings of the defendant or through the testimony of its witness. The report has clearly spoken for itself that the lawyer never mentioned claimant’s name in his testimony before the Central Disciplinary Committee. Thus, the testimony of DW1 that the said lawyer mentioned claimant’s name as one of his co-conspirators before the Committee is without evidential weight. I so find and hold.
41. I also bear in mind the contention of claimant vides paragraph 27 of the statement of facts that he was only questioned by the Committee on allegation of calling his colleague in the office to assist him in looking for the file different from what is contained in the query. In essence claimant is contending that allegation he was tried for before the Committee is different from what is contained in the query issued to him. As stated supra I have gone through the query and I must say that the query was on an allegation of fraud. Claimant was not queried on the allegation of touting in addition to the fraud in the said query. The query specifically reads thus;
Recall the registration of “Trankredit Finance Company Limited” RC 16429960.
A massive fraud was perpetrated in the registration of the above named company and the customer/agent has named you as one of his accomplices that aided him to pay for N1,000,000 share capital instead of N100,000,000.
It was also discovered that you dispatched the certificate/documents of the said company to the customer without due process after the company registration and also accused of hiding the company file in a cabinet in the dispatch unit of the office.
Your actions are tantamount to Fraud as stated in clause 2.09 of the Commission’s Conditions of Service.
In view of the foregoing, you are requested to explain within 24 hours why disciplinary action should not be taken against you for ‘Fraud’
Note that, failure to respond within the stipulated period will attract further disciplinary action.
It is clear from the content of the query above that the claimant was only queried on an allegation of fraud and which fraud was viewed in the light of the alleged confession of the of the customer and the way and manner in which claimant dealt with the file in question. In fact, the allegation of touting was not equally mentioned in Exhibit Y4 which is the letter of suspension. I find the issue of touting was mentioned for the first time in Exhibit Y5 which is the invitation to the Disciplinary Committee. It is clear from the query that the act of claimant in dealing with the file was seen as an act of fraud and which were the same thing he was asked questions on as seen at page 10 of the Report that is Exhibit H7 when he was asked how the alleged documents ended up on his table.
42. Now to the issue of fraud, DW1 who was a member of the Committee also stated under cross examination that in course of investigation it was discovered that the access of one Adamu was used to change the share capital of the said Company and it was printed at the FCT Office. He also admitted that the Claimant is not an approving officer and every approving officer has a password to access the platform. DW1 also admitted under cross examination that a software developer told the Committee that it was the access of one Aminu Adamu that hacked into the system to print the certificate. There is nothing in the report of the Committee that linked Claimant to the Adamu or that the Claimant had access to the password of the said Adamu and or not he was the one that hacked into the system to print the certificate. The said Aminu Adamu also testified before the Committee wherein he stated that he was on leave when the issue happened and he never shared his password with anyone. That one Waziri had told him that Abatcha had requested for 24 hours to sort the issue out when the file was discovered and that from investigations, he feels Abatcha and Tijanni are the ones behind the whole thing and he believed Abatcha logged into his profile to perpetrate the fraud using the availability code. It is obvious from the factson record that throughout the proceedings the Committee never cleared the grey area as to who in fact used the password of the said Adamu whom the software developer had alleged was the one whose account was used to perpetrate the fraud. There was no clear or cogent evidence linking the claimant to the said account. In fact, at page 14 of its report Exhibit H7 confirmed as stated by one of the witnesses Malami Muhammed Bello who is the Manager ICT that the alterations can be done through Virtual Private Network (VPN) outside the Commission. The Committee stated further on that page that the alterations to the name and increase in share capital in question were done over a VPN which could be done anywhere. There was nothing before the Committee linking the Claimant to the said VPN and there is equally nothing before the Committee that shows that it could not have been the said Adamu whose account was used who did it even while on leave since it was done over a VPN which could be used outside the Commission and the ICT Manager had stated that being on leave does not stop access. More so, from the report of the Committee wherein the lawyer stated that Abatcha had told him that the original certificate can be edited to reflect one hundred million share capital which he actually did clearly shows that the said Abatcha who is not an ICT officer to have access to certificate has someone within the ICT office as an accomplice. Claimant herein is not an ICT or access officer.
43. Worthy of note is the fact that DW1 who was a member of the Committee while under cross examination, admitted that Claimant was only found to have kept the file, removed the document and kept it somewhere he could not explain how the document he thoroughly dispatched as the documents were found on his table. That was the only involvement of claimant as stated earlier in this judgment. Thus, it was the overt acts of the claimant that informed the decision of the Committee that the claimant was guilty of fraud and touting. The question that agitates my mind at this stage is whether such over act is enough to substantiate the allegation of fraud and touting against the claimant? I do not know how the defendant came to the conclusion that the claimant was the one that perpetrated the fraud. As gleaned from the findings of the Committee against Claimant at page 11 of Exhibit H7 it was stated that the lawyer confessed in his written statement to the in house Security Unit that the claimant and Abatcha Mohammed were his co-conspirators in perpetrating fraud. The Report of the Security Unit is herein as Exhibit H5. I have read through the whole of the Exhibit. Of specific importance at this stage are the contents of Exhibit H5 at pages 533 and 534 of the Record of Court where the Agent/Lawyer who was also one of the persons who testified before the Committee was alleged to have come back on 4th February to the Unit after his invitation to write a statement and further confessed that two staff of Wuse Zone 5 Office who are the Claimant and Abatcha Mohammed lured him into believing that he can pay one Million Naira share capital and they will edit it and get certificate of One hundred Million Naira share capital. I noted that the confession in a statement that was allegedly credited to the lawyer/Agent who was involved is contrary to his testimony before the Committee wherein he testified that it was Abatcha who approached him with the idea of short-changing the Commission. In fact, two statements of the said lawyer Salisu Abubakar was tendered in this Court and they are both marked as Exhibit H4. I also bear in mind the testimony of DW1 in her written statement on oath that the said lawyer mentioned claimant’s name as his co-conspirator in his written statement. It is trite that a person is not allowed to give oral testimony of the contents of a document. See the following cases; Davies v. Rahman-Davies & Anor [2018]LPELR-46557(CA)1@13, Para B; Gudusu v. Abubakar[2017]LPELR-43007(CA)1@15-16, Para E; and; Olawoye v. Bello [2015]LPELR-24475(CA) 1@27, Para D . See also Section 128(1) of the Evidence Act, 2011. This is because as reasoned supra document legally peaking speaks for itself. The defendant in this case has not stated that the said statement is missing or has been destroyed to have enabled DW1 to give oral testimony of its content. In fact, the said alleged confession is here before this Court as Exhibit H4, should speak for itself, there is no such statement in exhibit H4. Thus, the evidence of DW1 in her written statement on oath that the claimant’s name was mentioned by the lawyer as his co- conspirator is of no evidential value. I find that Exhibit H4 being a document cannot speak through the pleadings of the defendant or through the testimony of its witness that is DW1.
44. I have read the two statements credited to Salisu Abubakar and I can categorically say that there was nothing in the two statements that says the claimant and Abatcha were his co-conspirators. For clarity’s sake let me quote verbatim the content of Exhibit H4 the alleged confession/statement dated 4/2/2020 which the defendants in this case alleged to be the confession incriminating the claimant;
That I am familiar with transcredit Finance Company Limited. I was lured by Nuh Mohammed Abacha (staff) to the above mentioned company with 1m shares instead of 100m shares with the intention that it will be doctored to read 100m. In view of the above facts, I thereafter paid for the 1m share in the name of Trancredit Finace Company limited and was despatched by Tijjani Yusuf of the Customer Services, I am no privy to any name as transcredit limited, transcredit Business dimension limited., I have never been privy to any change in name or therein on the documents throughout the period in view I didn’t visit Zone 5 and don’t have any knowledge about how the names and shares was doctored”
The above statement is clear and it is not ambiguous in any way. The lawyer clearly stated that claimant dispatched the certificate which to me is his normal schedule of duty. The claimant herein is a dispatch officer and which dispatch of certificate is his responsibility. I do not see how the above statement in any way incriminated the claimant as a co-conspirator. The lawyer in this statement just like in his testimony before the Committee clearly stated who lured him (as Nuh Mohammed Abatcha) with the intention of doctoring the certificate which is the alleged fraudulent act. I must equally point out here that the statement clearly shows as maintained by the Claimant that he dispatched the certificate. Learned counsel for the defendant in paragraph 4.3.10 of his final written address agreed that there is no doubt that claimant duly received the document from the appropriate department or section of CAC. His only contention was that claimant kept the file contrary to his call of duty. It is equally clear from this case that claimant has not been alleged to have illegally been in possession of the certificate which he dispatched which means that he duly received same from the appropriate department as agreed by learned defence counsel above.
45. Claimant in this case right from his response to query down to Security Unit has maintained the circumstances that led to his keeping the file where it was found and that such files with problems were usually kept in the said cabinet as problem files/keep-in-view. This fact has not been successfully dislodged by the defendant in this case whether through documentary evidence or credible oral evidence. It is well settled that the Court is bound to act on an uncontroverted and unchallenged evidence which is not inadmissible in law except it patently incredible. See the cases of Boye Ind. Ltd v. Sowemimo [2022]3 NWLR (Pt 1817)195@219, Paras C-F; Obineche v. Akusobi [2010]12 NWLR (Pt 1205)383 and; Ojo v. Gharoro [2006]10NWLR (Pt 878)173. In fact the testimony of claimant to this effect was never dislodged by any of the witnesses before the Disciplinary Committee. Claimant clearly stated that there was mix up with the name of the document which is the certificate of registration. In my view the names of both Companies “Transkredit Finance Company Limited” and “Transkredit Digital Invest” are closely similar that even the most careful could have mixed them up at the point of dispatch of the certificate so the testimony of claimant as such is not patently unreliable. The defendant through-out before the Committee and before this Court did not rule out or contradict claimant’s evidence that there was a mix up. The evidence of claimant is not a hearsay and as such not rendered inadmissible. Thus, this Court is bound to accept same.
46. The defendant as seen vide Exhibit Y6 stated that the claimant was dismissed for touting and fraud. As regards the allegation of touting, I must say that I am yet to see how the allegation of touting has been proven against the claimant. As stated severally in this judgment, the alleged written confession of the lawyer has not in any way shown that the claimant engaged in touting. The statement as reasoned supra clearly stated that it was Abatcha who engaged in the touting by going to meet the lawyer to patronize him and all that the claimant did was to dispatch the said certificate which is necessarily part of his schedule of duties. The report of the committee in Exhibit H7 is equally not helpful to the defendant’s case as there is nothing in the said report that shows that the claimant engaged in touting. The ipse dixit of the DW1 and DW2 alleging that claimant committed touting is equally of no evidential value as there is no credible evidence to back same up. The defendant has not substantially proven the allegation of touting against the claimant before this Court. It is plain on record that the allegation of touting included in the earlier allegation of fraud leveled against the claimant was an afterthought. I say this in view of the fact that the only allegation leveled against the claimant in the query issued to him is fraud and nothing of touting mentioned therein. Also going by all that has been said earlier in this judgment, I do not equally see how the defendant has proven the allegation of fraud and touting against the claimant.
47. A decision is said to be perverse when the trial body, as the Central Disciplinary Committee herein, takes into account matters which it ought not to take into account in its decision, or where its decision is against the weight and trend of evidence, or when the decision taken is spurious and unreasonable. See the cases of Kwara State Judicial Service Commission &Ors v. Tolani, supra @35-38, Para A and; Atolagbe v. Shorun [1985] LPELR - 592(SC). It is most preposterous and very perverse for the defendant through the instrumentality of the Central Disciplinary Committee in their recommendation at page 11 of Exhibit H7 to have recommended the dismissal of claimant from the services of the defendant while placing reliance on an unsubstantiated purported confession by the lawyer which allegation was not reiterated or substantiated before it by the lawyer when he came to testify before the Committee. That is what made their decision very unreasonable, particularly in the face of the unimpeached and cogent evidence marshaled by the Claimant in his defence before the Committee, even though he was under no obligation to rebut what had not been proved or substantiated against him in the light of the fact that it was the defendant that has the burden to prove the allegation of fraud which is criminal against him beyond reasonable doubt. In view of the above, this Court is of the view that the decision of the Central Disciplinary Committee against the claimant is very perverse. I am of the humble view that the Committee should have confronted the lawyer with his said “confession” and allow him confirm that he made such confession that claimant was one of his co-conspirators since he never stated such in his testimony before the alleged “confession” can be relied on by the Committee. That was the most reasonable thing to do since the purported confession contradicts his subsequent testimony before the Committee. The decision of the Committee was equally perverse in the sense that its decision was against the weight of evidence as the claimant was not in any way linked to the account which was used in perpetrating the fraud neither was it shown who exactly logged into the said account using a VPN address nor did the lawyer incriminate the claimant in his testimony before the Committee. The Committee was perverse in its decision when it relied on the fact that claimant kept the files in a cabinet in proof of the allegation of fraud. I am of the view that even if claimant was wrong to have kept those files in the wrong place, this is not enough to substantiate the allegation of touting or fraud for which he was investigated by the Committee.
48. It is my observation that the defendant in its amended statement of defence avoided the use of the word ‘fraud’ in describing what the claimant was alleged to have done. It kept using the word ‘cheat’ in place of ‘fraud’. However, in paragraph 19 of the amended statement of defence, defendant pleaded inter alia specifically in the last sentence thus;
The Defendant cannot be expected to keep and condone such wrongdoing, such fraud, such extreme negligence
The effect of the above averment is that the defendant despite its reluctance in the preceding paragraphs in using the word ‘fraud’ nonetheless by the above averment has pleaded fraud in its pleadings in which case the allegation of fraud must be specifically pleaded with particulars. In the case of Obitunde v. Onyesom Community Bank Ltd [2014] LPELR-22693 (SC) 44 Para. A, the Apex Court per Fabiyi JSC had this to say; “... fraud must be pleaded with particulars supplied and evidence must be led on same. See: George v. Dominion Flour Mills Ltd. (1963) All NLR 70 at 77 and Aina v. Jinadu (1992) 4 NWLR (pt. 233) 91 at 106. Apart from the above, since fraud is a crime, it must be proved beyond reasonable doubt.” [Emphasis mine]. See also, the cases of Taylek Drugs Co Ltd v. Onankpa [2018] LPELR-45882 (CA) 35-36, Para D and; Bico Nig Ltd &Anor v. Electronic Connections Ltd [2016] LPELR- 41318 (CA) 22-23, Para. F. The defendant as such must give particulars of the fraud and prove same beyond reasonable doubt which they failed to do. This is because allegation of crime is to be proven beyond reasonable doubt and the defendant in this case has the burden to do so. To my mind in proving fraud beyond reasonable doubt, fraud goes wider than impugning on the wrongness of a document or an act. It carries much wider implication of which an intention to defraud must be imputed to the claimant. In this instant case it carries much wider implication than just saying the claimant did wrong by placing the files in a cabinet elsewhere or that he left some documents on his table. This is because in common law Courts, no rule was more settled than that fraud must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts. The defendant has to be able to link claimant with the printing of the alleged certificates and they have to do this by showing he had a link with Adamu’s account which was used to print the certificates or that he knew the passwords of the account. They failed to trace the VPN from whence Adamu’s account was accessed in printing the document to the claimant. The defendant in this case has not been able to link the claimant with the printing of the document or with the lawyer except by the unsubstantiated confession allegedly made by the lawyer before the Security Unit which alleged confession this Court has found not to be incriminating against claimant. In view of this, I belief the claim of the claimant and I find that the allegations against him were not substantiated.
49. In tandem with the above is the principle enunciate in the case of CBN v. Dinneh [2021]15NWLR (Pt 1798)91@118, Paras B-E that where there is an allegation of criminal wrongs against a person, the jurisdiction to determine the allegation is vested in the Courts and the exercise of such jurisdiction cannot be usurped by any administrative tribunal. The Supreme Court went further that the reason is simple, where there are serious allegations of fraud and forgery, the matter is beyond the power of an administrative panel. It has to be pronounced upon by the Courts of law, as the allegations are of serious requiring proper judicial process in all their ramifications. The Court held in that case that the respondent should have been tried by the ordinary Court before his dismissal. In this case, the Claimant was not just alleged of touting but also of a serious criminal wrong of fraud which is of a serious nature requiring proper judicial process. The Central Disciplinary Committee is not the appropriate body to try claimant for fraud, even if they did try him they lack the capacity to find him guilty of fraud. This is not to say claimant could not be tried by the Committee for touting, but the Committee lacks the power to pronounce on the other offence of fraud. I find wrong on the part of the Committee to have found the Claimant culpable/guilty of the allegation of fraud which is a criminal offence. The report at page 11 particularly item ‘q’ clearly stated that the charge of touting and fraud has been established against Claimant which findings formed the basis of the recommendation of dismissal made against him. The Claimant should have been tried by the ordinary Court for fraud before his dismissal from the defendant.
50. The Claimant vide relief ‘i’ in the General Form of Complaint seeks a declaration that the procedures adopted by the defendant leading to his dismissal as conveyed in the letter of dismissal are unconstitutional, null and void and breach of his right to fair hearing. It must be borne in mind that part of the processes and procedures adopted by the defendant which led to the dismissal of claimant is the issuance of query, subsequent suspension and the trial before the Central Disciplinary Committee as identified supra. I have held supra that the issuance of query and suspension of the claimant are within the powers of the defendant to so act. However, it is only the procedures adopted by the defendant in the investigation of the claimant before the central Disciplinary Committee that is in breach of claimant’s right to fair hearing as reasoned supra. In the case of Obanye v. U.B.N. Plc [2018]17NWLR (Pt 1648)375@390, Paras A-B, 392, Paras G-H held that even where the employer has acted in a manner contrary as in this case, termination or dismissal of employment of master-servant devoid of statutory flavor cannot be declared null and void as the Claimant would want this Court to pronounce by his relief ‘i’, the Court can only declare such termination or dismissal wrongful. See also the case of UBN Ltd v. Ogboh [1995]2 NWLR (Pt 380)647. Accordingly, relief ‘i’ succeeds only to the extent that the dismissal of claimant is wrongful for being in breach of claimant’s right to fair hearing and for failure to justify the reasons for his dismissal in this Court. I so find and hold.
51. Claimant in his relief ‘ii’ seeks a declaration that the letter of query, suspension and dismissal were issued without justification against the claimant. I have held supra that the query and suspension are in order for the reasons earlier given. I am equally of the firm view that there was reasonable justification for the issuance of the query in view of the report of the Security Unit. I have also held that the procedure adopted before the Central Disciplinary Committee is in breach of claimant’s right to fair hearing. I have also held herein that decision of the Central Disciplinary Committee is perverse because the allegations against claimant was not substantiated before the Committee. It means that the Committee that recommended the dismissal of the claimant and which recommendation led to the dismissal of claimant vide Exhibit Y6 reached its decision without justification. It follows therefrom that the letter of dismissal of claimant that is Exhibit Y6 which was based on the recommendation of the Committee was issued without justification. Thus relief ‘ii’ succeed only to the extent that the letter of dismissal was issued without justification. I so hold.
52. It is the law that Courts are empowered to make consequential order flowing from the declaration made even where not sought by a claimant as the power is inherent in its jurisdiction to try the case. See the cases of DEC Oil & Gas Ltd v. Shell Nig. Gas Ltd [2019] LPELR-49347(SC)1@30-31, Para D; APC v. John & Ors [2019] LPELR-47003(CA)1@63-67, Para E and; A.P.C. & Ors v. Karfi & Ors [2017] LPELR-47024(SC)1@15-17, Para F. Claimant here has challenged his dismissal and this Court in reliefs ‘i’ and ‘ii’ has declared that the dismissal of the claimant is wrongful and that the letter of dismissal was issued without justification. Dismissal carries with it a greater effect than termination and in which case the employee will lose his benefits and will not be able to claim any. This Court in the case of Mr Ganiyu Rasak v. Liquid Bulk Limited, unreported Suit No NICN/PHC/103/2020 delivered on the 9th day of February, 2022 in paragraph 36 made a consequential order commuting the dismissal to termination. Following the decision in the case of the Mr Ganiyu Rasak v. Liquid Bulk Limited, supra, and coupled with absence/lack of justification for claimant’s dismissal in this case, that I make a consequential order commuting the dismissal of claimant to termination to enable him get all his terminal benefits. I so hold.
53. Claimant by relief ‘iii’ seeks an order of the Court asking the defendant to retract the letters of query, suspension and dismissal. There is no doubt that relief ‘iii’ is based on reliefs ‘i’ and ‘ii’. Thus, relief ‘iii’ takes its life from the declarations in reliefs ‘i’ and ‘ii’. I have held earlier that the letters of query and suspension are in order. Thus, there is no basis for their retraction. I have also held that the dismissal of claimant was wrongful and that the letter of dismissal of the claimant was issued without justification. However, this employment as reasoned and stated severally in this judgment is master-servant and even where the letter was issued without justification, the defendant cannot be asked to retract same as a willing employee cannot be foisted on an unwilling employer. See the case of Agwu & Ors v. Julius Berger (Nig) Plc [2019]LPELR-47625(SC)1@18-20, Para D; Obaje v. Nigerian Airspace Management Agency [2013]LPELR-19958(SC)1@26, Para C and; Emenite Ltd v. Oleka [2004]LPELR-(CA)1@9,Para E. Equally the Court cannot interfere with the right of a master in an ordinary master-servant relationship to relieve its employee from its employment.. However, the Court earlier has made a consequential order commuting the dismissal to termination. This Court hereby orders the defendant to convert the letter of dismissal of claimant to termination. In essence relief ‘iii’ succeeds only to the extent that the letter of dismissal is to be retrieved by the defendant and converted to termination. I so find and hold.
54. I will take relief ‘iv’ and ‘vi’ together because they are closely related. Claimant vide relief ‘iv’ seeks an order of this Court reinstating him and pay him his accrued salaries while in relief ‘vi’, the claimant seeks an order directing the defendant to pay his salary from August 2020 until reinstatement. The law is settled that in a master and servant relationship devoid of any statutory flavour, as in this present, a termination or dismissal of the employee by the employer cannot be declared null and void. The employee's remedy is in damages where the termination of the appointment is held to be wrongful. Such appointment cannot be said to be subsisting because a master cannot be compelled to retain the services of his servant. This is based on the common law principle that a willing employee cannot be foisted on an unwilling employer. See the following cases; CCG (Nig) Ltd v. Bakare [2018]LPELR-46810(CA)1@18, Para A and; Iderima v. Rivers State Civil Service Commission [2005] LPELR-1420 (SC)1@17. Thus the Court cannot order specific performance of such a contract by way of reinstatement. For the wrongful act of the defendant in this case, claimant is only entitled to damages and nothing more. Specifically the Court of Appeal per Ogunwumiju JCA (now JSC) in the case of SPDC (Nig) Ltd & Anor v. Addico & Anor [2015]LPELR-25785(SC)1@9-10, Para E held thus; “…However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer, such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt. 1 Pg. 173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt. 983 Pg. 585.” Thus, where the Court finds that an employment is devoid of statutory flavor, the employee is even where termination is wrongful cannot be entitled to either reinstatement or payment of his arrears of salaries from the period of the termination except of course salaries or entitlements that have accrued prior to termination and has remained unpaid. In view of the above, the Court in this case cannot order the reinstatement of claimant or direct the payment of his arrears of salary from August 2020 when his employment was terminated as this Court has held earlier that the employment is not that with statutory employment but that of a master servant. Accordingly, reliefs ‘iv’ and ‘vi’ fail.
55. Claimant vide relief ‘v’ sought an order directing the defendant to pay him his unpaid salary arrears from February, 2020 when he was suspended to August, 2020 when he was unlawfully dismissed. I have earlier found that the letter of suspension is in order. Exhibit Y4 which is the letter of suspension of claimant states that claimant was suspended pursuant to the defendant’s Conditions of Service. Paragraph 4.07 of Exhibit Y8 which is the provisions of the Conditions of service is instructive and it states that a staff may be suspended without pay for a period not exceeding six months. It is clear from the provisions of Exhibit Y8 particularly paragraph 4.07 that suspension contemplated therein is suspension without pay and which suspension is not to exceed six months. Claimant herein was suspended on the 25th day February 2020 with immediate effect and was subsequently dismissed without being called back to work. It is clear that the suspension of claimant having been done pursuant to Exhibit Y8 is one that is without pay. Paragraph 4.07 (c) clearly states that a staff on suspension who is not found guilty and is reinstated shall be paid his entitlement for the period of suspension in full. As such, payment of entitlements during the period of suspension is dependent upon not being found guilty and reinstatement. Even though the defendant has not proven the allegation against claimant as reasoned supra, claimant cannot be ordered to be reinstated as reasoned earlier in this judgement. In view of the above reasoning I do not find any reason to grant claimant’s relief ‘v’ for payment of his salaries during the period of suspension. Thus relief ‘v’ also fails.
56. Claimant vide reliefs ‘vii’ seeks an order of this Court for the sum of N5 million as general damages. I have held supra that the claimant herein is not entitled to reinstatement but his only remedy is in damages for the wrongful act of the defendant. Before now the position has been that such an aggrieved employee is only entitled to damages for wrongful termination which is one month salary in lieu of notice and which is the equivalent of claimant’s one month salary. However, this is no longer the position in the current regime of labour jurisprudence. First, this Court is empowered by Section 254C 1(f) of the 1999 Constitution (as amended), in exercise of its jurisdiction to have regards to good and international best practices in labour. The current position is that in deserving cases an employee would be entitled to substantial damages beyond the common law orthodox principle of salary in lieu of notice. It should be borne in mind that even before now the appellate Court in British Airways v. Makanjuola [1993]8 NWLR (Pt. 311)276@288 per Ubaezonu, JCA, affirmed the award of two years’ salary as damages by the trial court. In the said case, it was held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice( and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice. This view was equally expressed by the same Court of Appeal in the case of Sahara Energy Ltd v. Oyebola, supra, per Ogakwu JCA. In the same vein, the Court of Appeal in the most recent case of Ecobank (Nig) Plc v. Monye [2021]12NWLR (Pt 1789)1@25, Paras B-E, held that by the provisions of Section 19(d) of the NICA, this Court may in all other cases and where necessary make any appropriate order including an award of compensation or damages in any circumstance contemplated by the Act or any Act of National Assembly dealing with any matter that the Court has jurisdiction to hear. The Court went further that the effect of the provision is that this Court could make an order for compensation in the amount it did as it was a situation contemplated by the NICA 2006, being an employer-employee situation. The claimant in the instant suit was alleged of committing fraud and touting which are stigma on the character of the claimant. The defendant as stated severally in this judgment has not been able to substantiate or justify the allegation. Claimant vide paragraph 31 of his statement of facts pleaded his monthly salary as N150, 183. The defendant vide paragraph 29 of the amended statement of defence did not specifically deny that the said sum is not claimant’s monthly salary. It merely averred that it strongly denies paragraph 30-33 of the statement of facts and puts the claimant to the strictest proof of the averments and stated further that the claimant is not entitled to any payment let alone N150,183.00 for any period whatsoever because his dismissal was caused and occasioned by himself which averment this Court believes was specifically in response to paragraph 32 of the claimant’s statement of facts that he is entitled to be paid his monthly salary from the period of suspension till reinstatement. Defendant’s averment in paragraph 29 of the statement of defence does not amount to specific denial of the said sum as claimant’s monthly salary. It is trite that facts not specifically denied or by implication having regard to other facts averred are deemed admitted. See Odede & Anor v. Jonah & Anor [2019]LPELR-49040(CA)1@25-26, Para F; UNIC Insurance Plc v. Fadayi & Ors [2018]LPELR-45571(CA)1@10-11,ParaB. Thus, the averment of claimant that his monthly salary is N150,183.00 is deemed admitted and therefore requires no further proof. Accordingly, in line with the power conferred on me by Section 19(d) of the NICA 2006 and reliance on the case law authorities of Oyebola and Monye Supra, that I award the sum of N3,600,000 which is claimant’s 2 years’ salary as damages/compensation to the claimant against the defendant for wrongful termination. Claimant is equally to be paid his terminal benefits which include his gratuity and pension.
57. In relief viii claimant claims 25% per annum on total judgment sum as may be awarded by the Court until total judgment sum is finally liquidated. There is no doubt that what claimant seeks by this relief is post judgment interest. The position of the law is clear as regard the award of post judgment interest by this Court. It is trite that post judgment interest may be awarded even where it was not pleaded because it is statutory and is at the discretion of the Court. See the case of Ifemesia v. Ecobank [2018] LPELR-46589 (CA)1@60-61, Para A-A. However, the Rules of Court regulates the discretion of the Court by setting the rate or percentage at which such post judgment interest may be awarded. In the case of Bolanle v. Access Bank [2015] LPELR-40994(CA)1@26-28, Para B, the Court of Appeal held that the power of this Court to grant post judgment interest is statutory as it derives its root from the Rules of the Court 2017. This Court is empowered by the provisions of Order 47 Rule 7 of the Rules of this Court as captured in Bolanle v. Access Bank, supra to grant post judgment interest at a rate not less than 10% per annum. I therefore exercise my discretion in favour of the claimant by awarding 10% interest on the judgment sum. Relief ‘viii’ thus succeeds. I so hold.
58. The claimant vide relief ‘ix’ is asking for the cost of action. He however did not access the cost but passed the burden of its assessment to the Court. In the case of Cappa and Dalberto (Nig) Plc v. NDIC [2021]9 NWLR (Pt. 1780)1@ 14, Paras G-H the Apex Court held that a successful party is entitled to cost which he should not be denied except for good reasons. See also these cases; First Bank v. Orosanye [2019] LPELR-47205(CA)1@22-29, Para F; Aircom(Nig) Ltd v. Shobanjo & Anor [2019] LPELR-49252(CA)1@30, Para A. This Court has copious provisions as regards award of cost. Specifically Order 55 empowers the Court to grant costs of action at its own discretion. The discretionary power of the Court is to be exercised judicially and judiciously. Claimant in this case including his Counsel were in Court most times of the Court’s sitting neither did he misbehave nor misconduct himself throughout the trial. He has also succeeded in most part of his claim, I therefore find it just and lawful to exercise my discretion in his favour in awarding cost. Accordingly, I find that relief ‘ix’ succeeds. I award the sum of N100,000 as cost of action in favour of the claimant.
59. For the avoidance of doubt and for the reasons earlier given, I declare and order as follows;
1. That the dismissal of claimant is wrongful.
2. That the letter of dismissal was issued without justification.
3. That the dismissal of claimant is commuted to termination.
4. That the letter of dismissal is to be retrieved by the defendant and converted to termination.
5. That I award the sum of N3,600,000 damages as claimant’s 2 years’ salary to the claimant as well as his terminal benefits.
6. I award the sum of N100,000 as cost of litigation in this suit.
7. Judgment is to be complied with within 30 days failing which 10% interest is to be paid on the judgment sum.
Judgment is accordingly entered.
Hon. Justice Oyebiola Oyewumi
Presiding Judge