IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. (PROF) JUSTICE ELIZABETH A OJI
DATE: FRIDAY 22ND JULY 2022 SUIT NO: NICN/LA/264/2020
BETWEEN:
MR UNANKA HENRY ONWUEGBUCHULAM CLAIMANT
AND
LAGOS STATE UNIVERSITY DEFENDANT
Representation:
Sunday Abumere for the Claimant
Adeleke O. Agboola SAN and Obiora Okenchi for the Defendant
Introduction and Claims:
1. On the 7th of August 2020, Claimant commenced this suit via the General Form of Complaint accompanied by the Statement of Facts, List of Witnesses, Witness Statement on Oath, List of Documents and Copies of the Documents. Claimant claims against the Defendant as follows:
a) A DECLARATION that the dismissal of the Claimant’s appointment by the Defendant via a letter dated the 14th day of August 2017, in default of serving the agreed three months prior written notice is in breach of the terms of engagement as contained in the letter of employment dated 8th August 2016.
b) A DECLARATION that the purported trial of the Claimant’s case by the Student Affairs Disciplinary Committee through the Examination Malpractices Investigation Committee wherein the Claimant was declared guilty without any cogent evidence offends the principle of natural justice and it gravely violated the Claimant’s fundamental right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended
c) A DECLARATION that the disciplinary procedure adopted by the Defendant upon which the Claimant was dismissed and/or removed is in total violation of the provision of Section 23, 24 and 25 of the Lagos State University Law CAP 105 of 1990 and Chapter III of the Conditions of Service Guiding Senior Staff of Lagos State University Law of June 2008.
d) A DECLARATION that the trial of the Claimant’s criminal act without first handing him over to the law enforcement agencies is ultra vires, null and void.
e) AN ORDER of court setting aside the Defendant’s wrongful letter of dismissal of the Claimant’s appointment, dated 14th of August 2017 for breach of the rules of natural justice and fair hearing and for breach of the provision of Section 23, 24 and 25 of the Lagos State University Law CAP 105 of 1990 and Chapter III of the Conditions of Service Guiding Senior Staff of Lagos State University Law June 2008.
f) AN ORDER of court directing the Defendant to immediately reinstate the Claimant back to his position prior to the 14th of August 2017
g) AN ORDER of court directing the Defendant to calculate the accrued salary of the Defendant from 14th August 2017 to the date of reinstatement and pay same to the Claimant forthwith.
h) AN ORDER of court awarding the sum of N12,000,000.00 (Twelve Million Naira) as general damages in favour of the Claimant against the Defendant.
i) AN ORDER of court for the sum of N1,000,000.00 (One Million Naira) being the cost of this action.
j) 10% post judgment interest until full and final liquidation of the judgment debt.
k) For such other ORDERS the Court may deem fit to make.
2. The Defendant upon being served with the originating processes accordingly filed its Statement of Defence and all other accompanying processes, all dated 2nd December, 2020. The Claimant later filed a Reply to the Defendant’s Statement of Defence dated 29th December, 2020. Trial commenced in this suit on the 30th of September, 2021 and was concluded on the 14th of December, 2021. The Court accordingly adjourned for the adoption of final written addresses. The final written addresses were adopted on 17th June 2022 and the Court adjourned the matter for judgment.
3. The Claimant gave evidence for himself on 30th September 2021 and was cross examined. The Claimant tendered the following documents in evidence:
1. The Guardian Newspaper Advertorials Exhibit C1
2. Letter Of Engagement As Tutor 111 Dated 8/8/2016 Exhibit C2
3. Identification Card Exhibit C3
4. Conditions of Service Guiding Senior Staff Exhibit C4
5. Time Table, JUPEB 2017 Exam Physics: Sci-Ji55 Exhibit C5
6. Instructions on Physics Practicals Exhibit C6
7. JUPEB Memorandum Dated 21st June 2017 Exhibit C7
8. Letter Of Dismissal Dated 14th August 2017 Exhibit C8
9. Lagos State University Lagos Staff Pay Slip For July 2017 Exhibit C9
10. Letter Of Appeal Dated 21st August 2017 Exhibit C10
11. Reply Letter Of Appeal Dated 7th September 2017 Exhibit C11
12. Letter Of Appeal Dated 20th June 2018 Exhibit C12
13. Reply to Letter Of Appeal Dated 27th June 2018 Exhibit C13
14. Law & Attorney’s Letter Dated 16th June 2020 Exhibit C14
15. Reply to Law & Attorney’s Letter Dated 9th July 2020 Exhibit C15
16. LASU Foundation JUPEB Internal Memo of 24/11/16 Exhibit C16
17. LASU Foundation JUPEB Internal Memo of 19/10/16 Exhibit C17
18. Letter Of Appeal Dated 21st February 2018 Exhibit C18
19. Reply Letter Of Appeal Dated 6th September 2017 Exhibit C19
20. Application for position of Physics teacher of 20/6/16 Exhibit C20
21. Acknowledgement Slip Exhibit C21
22. LASU Health Centre Card Exhibit C22
23. LASU Foundation Programme Students Handbook Exhibit C23
24. LASU Students’ Handbook Exhibit C24
25. Medical Certificate of Fitness Exhibit C25
4. The Defendant opened its case on the 14th of December 2021. Olutayo Micheal Hunpe (Principal Assistant Registrar) gave evidence on behalf of the Defendant. He was subsequently cross examined. He tendered nine documents which were admitted and marked as exhibits D1 – D9; as follows:
1. Letter of Engagement dated 8th of August, 2016 Exhibit D1
2. Defendant’s Letter to the Claimant of 30/5/2017 Exhibit D2
3. Electronic photos of the Claimant assisting a student Exhibit D3
4. Minutes of the first sitting of the Investigation Committee Exhibit D4
5. Minutes of the 2nd Sitting of the Committee Exhibit D5
6. Minutes of the 3rd Sitting of the Committee Exhibit D6
7. Report of the Committee Exhibit D7
8. JUBEB Manage Board Memo of 3/8/2017 Exhibit D8
9. Claimant’s Dismissal letter of 14/8/2017 Exhibit D9
CASE OF THE CLAIMANT
5. The case of the Claimant is that the Defendant published on the Guardian Newspaper on 16th June 2016 a vacancy advertorial seeking eligible persons to apply for lecturing appointment. He applied for the vacant position of a Physics Tutor and performed excellently well at the employment test and interview as a result he was engaged by the Defendant. He became an employee of the Defendant as a Tutor III (Physics) in the LASU Joint University Preliminary Examination Board on 8th August 2016 vide a letter of engagement signed by the Defendant’s Registrar, Mr Lewis Akinwumi Oladapo. He was placed on an annual salary of N1,112,607.36. The letter of engagement contained terms which include but not limited to “the contract of engagement may be terminated on either side by giving three (3) months’ notice of the intention to do so or tendering payment of three months’ salary in lieu of notice”. At resumption of duties, he was issued an IDENTIFICATION CARD and the hand book titled “CONDITIONS OF SERVICE GUIDING SENIOR STAFF OF LAGOS STATE UNIVERSITY JUNE 2008”. Upon resumption of duty, he was transferred to the Faculty of science, Lagos State University Foundation Programme, Badagry and was assigned to teach Physics; prepare students for examinations; invigilate examinations; set examination questions; mark answers sheets and collate results. At all material times in the course of his employment prior to the dismissal, he diligently and dutifully performed his duties meticulously and as directed by the Defendant. Consequent upon his diligence and performances, he was saddled with additional and privileged responsibilities which include but not limited to; Member, JUPEB Management Board; Member, Time Table Committee; Faculty Representative; and other Administrative responsibilities. Sometimes in June 2017, the Joint University Preliminary Examinations Board (JUPEB) released the Timetable and names of Invigilators for the 2017 JUPEB examinations.By the Time Table, Mr Adejo and the Claimant were to invigilate students sitting for Physics Practical on Thursday 15th June 2017 but due to the high numbers of students, the Defendant co-opted more Tutors, Mr Adeleye, Mr A. Bello, Mr S.S Bonu and Mr Olaolu to join and assist to invigilate the students. On Thursday 15th June 2017, eligible students for Physics Practical examination were arranged into the Physics Laboratory, Chemistry Laboratory and Biology Laboratory. Mr Adejo and the Claimant took care of invigilation at the Physics Laboratory, while Mr Adeleye, Mr A. Bello, Mr S.S Bonu and the JUPEB Supervisor, took care of the Chemistry Laboratory and Mr Olaolu invigilated students in the Biology Laboratory. Based on the instructions for Physics Practicals, the Claimant prepared the Laboratories, and arranged the students. About 30 minutes into the examination, while the Claimant was on duty invigilating students for Physics Practical on Thursday 15th, 2020, the Director, Professor A.A. Sobande came into the Physics Laboratory to inform him that he got a text message from an unidentified person claiming that some of his Tutors were assisting a female student whose name is Tina. The names of the Tutors assisting Tina was not mentioned in the text message. The Director thereafter asked the Claimant about the identity of ‘Tina’. The Claimant told the Director that there were two students bearing the name ‘Tina’ and that both of them were in the Chemistry Laboratory writing the Physics Practical examination. The Director immediately left the Physic Laboratory and went straight into the Chemistry Laboratory where Mrs Tina Nwanennaya was identified and shown to the Director. The Director, with the support of Mr Adeleye, Mr A. Bello, Mr S.S Bonu thoroughly searched Mrs Tina Nwanennaya but no incriminating material was found on her. The Director thereafter remained in the Chemistry Laboratory till the end of the examination, to monitor Mrs Tina Nwanennaya and to ensure that no suspected assistance or help got to her. About Fifteen (15) minutes after the examination, and well after the students have all left the examination hall and while the invigilators were sorting the examination scripts, the JUPEB supervisor raised an alarm that he suspected foul play. The JUPEB supervisor further stated that he noticed that about 15 minutes to the end of the examination, Mrs Tina Nwanennaya was only able to plot one of the two graphs to be plotted and wonder how she was able to plot the second graph within the last 15 minutes. Within a short while, the Director Professor A.A. Sobande came back with the Deputy Director Dr Segun Adeola and as they entered the Hall, they announced that since the examination paper for that day was Physics, the Physics Tutors, Mr Unanka Henry (the Claimant) and Mr Gabriel Adeleye are going to face a disciplinary panel.
6. About two weeks after the examination, the Student Affairs Disciplinary Committee set up an Examination Malpractices Committee and the Claimant was summoned to appear before it on Wednesday 28th June 2017 vide a letter dated 21st June 2017 and the Claimant promptly complied. No formal or official query in writing was issued to the Claimant prior to the panel sitting to enable him respond. The Claimant states that he was not informed of his alleged offence, of any evidence of any fraudulent/criminal activities against him; nor was he told the names of his accusers and the particulars of the allegations. The Examination Malpractices Committee was a 5 member Committee, headed by the Deputy Director, Dr Segun Adeola and the following Tutors Mr Bello Abdulganiu, Mr Ipadeola, Mr Olakanishe Obakanshe, Mr Eniafe S.O (Secretary). Several Tutors, Non-Academic staffs, and Mrs Tina Nwanennaya were also invited and interrogated. At the sitting of the panel, the Deputy Director Dr Segun Adeola was the Chairman and Prosecutor and as soon as I stepped into the hall his first statement to me was that he had made up his mind to dismiss the two Physic Tutors, the Claimant and Mr Gabriel Adeleye, notwithstanding the findings of the panel. The Deputy Director Dr Segun Adeola further said that cameral footing shows that the Claimant assisted Mrs Tina and thereafter accused the Claimant of plotting the second graph for Mrs Tina which the Claimant denied instantly and vehemently. The Claimant told the Deputy Director that he has never plotted graph for any student and demanded from the Deputy Director and the panel any evidence to show him the cameral footings or prove that he assisted any student to plot any graph sheet. He further told the panel that he was not the invigilator assigned to the Chemistry Laboratory where Mrs Tina Nwanennaya wrote her examination and it is absurd to link any malpractices to him. According to the Claimant, as he was about to mention the names of the invigilators in the Chemistry Laboratory where Mrs Tina wrote her examination, the Deputy Director shouted him down and subsequently refused him further opportunity to defend himself and to debunk the allegations levied against him. The Claimant further states that throughout the interrogation, he was not confronted with any incriminating evidence and none of the Tutors, Non-teaching staff brought in to confront him testified against him. Mrs Tina Nwanennaya also testified that nobody plotted any of the two graphs for her and that she was capable of plotting any physics graph without help or assistant. Mrs Tina Nwanennaya went further to state that she was not accused of examination malpractices right inside the examination hall, neither was she made to sign any document related to examination malpractices which was the usual practice or norms. The outcome of the panel sitting was not made available to the Claimant, but on the 16th August 2017 he was handed a letter of dismissal dated August 14th, 2017 on the sole ground that he was involved in examination malpractices.
7. The Claimant was not paid the August 2017 salary and when he made enquiry at the school Bursary, the school accountant Mr. Felix, told him that he can no longer be paid salary based on the August 14th, 2017 letter. The last salary the Claimant received was the July 2017 salary. The Claimant states that he did not engage in any examination malpractices and therefore was dissatisfied with the verdict and the dismissal. He therefore took steps when issued with the dismissal letter, by writing series of appeal letters seeking the setting up of an independent panel to review his case but none was considered positively till date. He wrote a letter against Miscarriage of Justice to the Director, JUPEB dated 21st August 2017 but was turned down by a letter dated 7th September 2017. He wrote another letter of Appeal against Miscarriage of Justice dated 20th June 2018 to the Vice Chancellor of Lagos State University Ojo, Lagos but his request was refused by a letter dated 27th June 2018. The Claimant states that as a result of the dismissal, no other institutions of learning are willing to employ him; While his friends, colleagues, and relatives now see him as a fraudulent person.
CASE OF THE DEFENDANT
8. The case of the Defendant is that the Claimant was not its employee; but was employed by the LASU Joint University Preliminary Examination Board (JUPEB) and was designated as a Tutor III (Physics) as stated in the letter of engagement dated 8th of August, 2016. That the Joint University Preliminary Examination Board (JUPEB) is a National Examinations body approved by the Federal Government of Nigeria in 2013, saddled with the responsibility of conducting a unified, common and standard examination for the candidates all over the federation where JUPEB is in operation. That the JUPEB Programme is run separately by its Foundation and their personnel are called Tutors and not members of Staff of the Defendant. The Defendant states that the Claimant was dismissed after being found guilty of criminal offence of examination malpractice which constitutes a gross misconduct. The Defendant states that the Claimant was never issued with any Conditions of Service Guiding Senior Staff of Lagos State University June 2008. That the Claimant had been earlier linked to examination malpractice in the same physics during the 2nd in-course examination, when his physics questions leaked and he was seriously warned through letter dated 30th May 2017 to desist from getting involved in examination malpractices after being exonerated from examination malpractice scandal. That the Claimant along with other staff were selected to invigilate the final JUPEB Physics (Practical) examination but while the examination was going on, the Claimant was caught on recordings by his colleague Mr. Bonu Solomon assisting a student by name Mrs. Tina Nwannenaya. During the examination the Claimant left his examination hall until 30 minutes to the end of the examination when he came back and walked towards where Mrs. Tina Nwannenaya was seated during the examination and dropped some papers for her. That immediately the Claimant left the hall, the supervisor went to Mrs. Tina Nwannenaya’s table and recovered a folded graph. The Claimant was confronted with these facts and he denied same. The Claimant also denied knowing that the said Mrs. Tina Nwannenaya left her assigned examination hall after some minutes into the exam to the other hall where the Claimant was the invigilator. That the Claimant is not a member of the Senior Staff of the Defendant University but was however duly informed of the allegation against him and the evidence therein. The Claimant was also present before the investigation committee while his accusers testified against him. The Defendant states that the Chairman of the Examination Malpractice Committee; Dr. Segun Adeola did not tell the Claimant as soon as stepped into the hall, that he had made up his mind to dismiss him and Mr. Adeleye, notwithstanding the finding of the panel. That the Claimant was shown photos of him plotting a graph for the student during the examination. The Defendant admits that the Claimant was not the invigilator assigned to the Chemistry Laboratory where Mrs. Tina Nwanennaya wrote her examination but states that the said Mrs. Tina Nwanennaya had maneuvered her way out of the examination hall assigned to her while the examination was going on, to the examination hall where the Claimant was assigned to invigilate. However, during investigation by the Examination Malpractice Committee she claimed that she changed her hall unknowingly. That Mr. Bonu Solomon who was co-opted to invigilate the physics practical examination was the person who took the pictures that revealed the Claimant assisting a student in the examination hall and Mr. Bonu Solomon gave this testimony before the Claimant during the sitting of the Investigation Committee on Examination Malpractice. The Defendant set up a disciplinary committee to investigate the allegation of Examination malpractice against the said Mrs. Rita Nwanennaya and upon being found guilty, Mrs. Rita Nwanennaya was thereafter expelled. That the Claimant was duly informed of the allegation of examination malpractice made against him and thereafter an Examination Malpractice Committee was set up to investigate the matter. The Investigation Committee had three (3) sittings on Examination Malpractices to which the Claimant was in attendance. The investigation committee having discovered the Claimant’s culpability in the case, concluded that the Claimant was guilty of examination malpractice which is a gross misconduct.
9. Consequent upon the findings of the Examination Malpractice Committee, the Vice-Chancellor on behalf of the Defendant approved the recommendation of JUPEB Management Board that the Claimant be dismissed from the services of JUPEB Programme with immediate effect. The Defendant states that it was clearly established before the Examination Malpractice Committee that due process was followed before the dismissal of the Claimant for gross misconduct. That Defendant could not change its position concerning the verdict of dismissal passed on the Claimant because the evidence against the Claimant was overwhelming and the Claimant had been involved in a similar case before then and was warned against its reoccurrence. That there was no miscarriage of justice in the way and manner the Claimant was dismissed from the Defendant University, and the Claimant was duly afforded fair hearing by the Examination Malpractice Committee. The Defendant further states that the Claimant is not entitled to any salary whatsoever after he was found guilty of examination malpractices and accordingly dismissed. The Defendant states that it need not wait for the law enforcement agencies before taking disciplinary measures against the Claimant.
CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE
10. The Claimant in Reply to the Defendant’s Statement of Defence states that he was not employed by the LASU Joint University Preliminary Examination Board (JUPEB); rather he was employed by the Defendant. That the Defendant has 11 Directorate, each headed by a Director. LASU Joint University Preliminary Examination Board (JUPEB) is a directorate of the Defendant and is headed by the Director LASU Foundation. That at all material times, activities with respect to his employment were conducted by the Defendant. That though the Joint University Preliminary Examination Board (JUPEB) is a National Examination body that conduct unified, common and standard examinations for candidates, Universities are at liberty to key into the program by preparing candidates for the exams. That it is the responsibility of such universities that key into the program to provide classrooms/campus and to also employ its own teaching staff, usually called Tutors. That the Defendant keyed into the program and provided the Topo Badagry campus for lectures and also employed its teaching staff including him. That the Joint University Preliminary Examination Board (JUPEB) is distinct, different and distinguishable from the Lagos State University JUPEB (LASU Foundation) Programme. That while the Joint University Preliminary Examination Board (JUPEB) was established by the Federal Government of Nigeria in 2013, the LASU FOUNDATION which metamorphosed into the Lagos State University JUPEB (LASU Foundation) Programe was established by the Defendant’s Senate on 24th April, 2008. That the Lagos State University JUPEB (LASU Foundation) Program:
a. Is not a juristic person
b. Was not established by an Act of Parliament or the National or State House of Assembly
c. Was not registered under the Corporate Affairs Commission.
d. Was established by SENATE of the Defendant.
e. Does not have power to employ any staff
f. Does not have power to dismiss any staff
g. Is not an autonomous or independent body but a directorate of the Defendant
h. The Defendant as its principal performs the task of employment, promotion, discipline, retirement and dismissal on its behalf.
i. The student information handbook 2015/2016 captures the status of LASU FOUNDATION.
11. The Claimant states further that the Joint University Preliminary Examination Board (JUPEB) as a body that conducts examinations, is not empowered to employ teaching staff, but is empowered to employ administrative staff in its offices and also uses the administrative staff in the conduct of its exams. That he was not involved in any examination malpractices and was never found guilty of any criminal offence or misconduct. That in the 2nd in-course exams, four students were caught cheating during the Physics examination, two of which were caught personally by the Claimant. That he was never linked to the malpractices. That he was invited to appear before the examination malpractices committee not because he was indicted but to testify as the Tutor in charge of the subject after which he was exonerated of any wrongdoing or malpractices but was advised to be more careful in future. That he was not caught on recordings by his colleague Mr Bonu Solomon assisting a student by name Mrs Tina Nwannenaya. That the electronic photos attached to the Statement of Defence showing him and his co-Physic Tutor Mr Gabriel Adeleye assisting students are photos taken in normal Physics lecture classes but not in JUPEB Physics Practical Examination. That Mr. Gabriel Adeleye and him did not invigilate in the same hall/laboratory. That there was no time during the examination that he left the examination hall until 30 minutes to the end of the examination, neither did he walk towards where Mrs Tina Nwannenaya was seated during the examination and dropped some papers for her. That Mrs Tina Nwannenaya did not leave her assigned hall into the hall where he was invigilating. That he was not challenged nor confronted with these facts during the course of the examination or shortly after the examination but he was confronted for the first time with the allegations at the sittings of the Examination Malpractices Committee. That he was employed as a master degree holder and placed on TSS 07/1, which indicates that he is a senior staff according to the Condition of Service Guiding Senior Staff of Lagos State University. That he was never shown photos of himself plotting a graph for the students during the examinations at the Examination Malpractices Committee sitting but he got to see the photocopies of the electronic photos for the first time when he received the Defendant’s Statement of Defence. That Mrs Tina Nwanennaya did not maneuver her way into the Physics Laboratory where he was invigilating. That though Mrs Tina Nwanennaya was made to face the Examination malpractices committee but she was not expelled. Mrs Tina Nwannennaya (JUPEB) NO-70570105ZL with subject combination PHYSICS/CHEMISTRY/BIOLOGY got all her results released. That he was not given enough time to prepare his defence before appearing at the Examination Malpractices Committee sitting and he was not allowed into the Examination Malpractices Committee sittings while hisd accusers gave evidence at the Examination Malpractice Committee sitting. The report and verdict of the committee was not made open to him and he was not given the opportunity to appeal against the verdict of the committee.
ARGUMENTS IN FAVOUR OF THE DEFENDANT
12. In their final written address, the Defendant set out two issues for determination; to wit:
a) Whether the applicable law for the termination of the engagement between the Claimant and Defendant is the Condition of Service Guiding the Senior Staff of Lagos State University or the Letter of Engagement dated 8th August, 2016?
b) Whether the Claimant has established his case against the Defendant as to entitle him to the reliefs sought?
13. In arguing issue one, the Defendant referred to the cases of REGD TRUSTEES OF IKOYI CLUB 1938 v. AYODEJI (2020) LPELR-51633(CA) and UBN PLC v. SOARES (2012) LPELR-8018(CA), cases bordering on the application of collective agreements, and submit that in order for parties to take benefit of a Condition of Service, it has to be shown that it was incorporated in the letter of employment issued to the employee by the employer. They Defendant argues that if an agreement is not incorporated into a contract of service, it cannot be binding on any of the parties for any reason and therefore not a basis for the activation of the jurisdiction of a Court. The Defendant submits that the only contract of employment between the Claimant and Defendant is the Letter of Engagement dated 8th of August, 2016 - Exhibit D1 and that exhibit D1 shows that no other contract of agreement whatsoever was incorporated therein. That, therefore, the Condition of Service guiding the Senior Staff of Lagos State University is not applicable to parties in this case. The Defendant argues that in this case, the only contract of service between the Claimant and the Defendant is Exhibit D1 (Letter of Engagement) tendered by both the Claimant and Defendant. That the 5th paragraph of Exhibit D1 clearly and unambiguously provides that; “The contract of engagement may be terminated on either side by giving three (3) months’ notice of the intention to do so or tendering payment of three months’ salary in lieu of notice”. The Defendant submits that this Court has no option but to give effect to the agreement entered by both parties in this suit as contained in Exhibit D1 (Letter of Engagement). Referred to Intercontinental Bank Plc v. Hilman & Bros Water Eng. Services Nig. Ltd (2013) LPELR-20670(CA). The Defendant further argues that
14. On issue two, “whether the Claimant has established his case against the Defendant as to entitle him to the reliefs sought; the Defendant noted that the Letter of Engagement accepted by the Claimant is to the effect that either the Claimant or the Defendant can terminate the contract of engagement entered by parties by giving three months’ notice of the intention to do so or in the alternative by tendering payment of three months’ salary in lieu of notice. The Defendant then argues that the Claimant has failed to lead facts to show how this agreement was breached.
15. On whether the Claimant was afforded fair hearing before his dismissal, the Defendant states that it is clearly in evidence that the Claimant was duly invited and he appeared before all the sittings of the Investigation Committee to answer to the allegation leveled against him. That the Claimant admitted at paragraph 25 of his Witness Statement on Oath that he was duly invited to appear before the Examination Malpractice Committee by a letter dated 21st June, 2017(Exhibit C7). That, during the cross-examination of the Claimant by the Defendant’s Counsel, the Claimant admitted that he was duly invited by the Examination Malpractice Committee, he was confronted with the allegation leveled against him and that he was given opportunity to defend himself. According to the Defendant, the admission of the Claimant the he attended the Committees Proceedings and that he was given opportunity to explain for himself the allegations made against him, presupposes that he was given fair hearing by the Committees’ panel. The Defendant submits that there should be a presumption of regularity. The Defendant, referring to the case of UBN Plc v. Musa (2012) LPELR-9855(CA), argues that what constitutes opportunity to defend oneself simply connotes appearing before an investigative panel or tribunal and nothing more. According to the Court of Appeal in UBN Plc v. Musa(Supra):
In cases of misconduct bordering on criminality, what is required of an employer before summarily dismissing an employee is to give him a fair hearing by confronting him with the accusation made against him and calling upon him to defend himself. See Francis Arinze v. FBN 5 SCNJ 183 at193; Olatunbosun V NISER (1988) 3 NWLR (Pt. 80) 25 at 56-57, 59. The phrase, "opportunity of defending oneself "means "appearing before an investigative panel or Tribunal" as has been held in a plethora of cases, such as: Union Bank of Nigeria V Ogbo (1991) 1 NWLR (Pt.167) 369 and Tunji B. Bankole V NBC (1958) All NLR 736…
See Fakuade v OAU Teaching Hospital Complex (1993) 6 SCNJ 35. I too endorse the submissions of learned Counsel for the Respondent that the failure to invite the Respondent to appear before an investigative panel or Tribunal, goes against the rules of natural justice, equity and good conscience, as well as one of the twin pillars of justice, audi alteram partem."
16. The Defendant further submits that the Claimant has failed to prove the allegation of wrongful dismissal against the Defendant. That, the Claimant in this case has failed to specifically prove the particular procedures that were not observed by the Defendant before his dismissal from the University. That the Claimant has the duty to put forth verifiable evidence to show that one or more of the procedures for discipline of staff was not observed. The Defendant argues that, assuming but not conceding, that the Claimant is entitled to a relief, it would have been an order for the payment of the three months’ salary in lieu of notice as contained in the Letter of Engagement agreed by parties; but the Claimant in his reliefs failed to ask for the payment of the three months’ salary in lieu of notice and the Court, not being a Father Christmas cannot give to a party what he has not asked for. Referring to Ativie v. Kabelmetal (Nig) Ltd (2008) LPELR-591(SC) (Pp 28 - 28 Paras E - F) where the Supreme Court stated that:- "...it is settled law that parties and the Court are bound by the pleadings of the parties and that the Court, not being a Father Christmas cannot give to a party what he has not asked for."
17. The Defendant also argued that the offence of the Claimant being a gross misconduct, it is not necessary that before he is summarily dismissed, he must be tried before a court of law; and that the Claimant is also not entitled to any notice or wages. Defendant referred to the case of Yusuf v. UBN Ltd (1996) LPELR-3537(SC) where it was held that, “There can be no doubt that where an employee is guilty of gross misconduct, he can be dismissed summarily without notice and without wages.
ARGUMENTS IN FAVOUR OF THE CLAIMANT
18. The Claimant, in his final written address, set down four issues for determination:
1. Whether the Defendant is the employer of the Claimant.
2. Whether the Claimant is a public servant whose employment is clothe with statutory flavour.
3. Whether the Claimant was wrongfully and unlawfully dismissed.
4. Whether the Claimant is entitled to reinstatement, arrears of salaries and award of damages.
19. On issue one, “Whether the Defendant is the employer of the Claimant”, the Claimant argues that on the face of his Letter of Engagement are the names of the Defendant (LAGOS STATE UNIVERSITY) and JUPEB (LASU FOUNDATION) PROGRAMME. The Claimant argues that he successfully gave evidence that he addressed his Application Letter (Exhibit C-20) to the Defendant, the Defendant in turn issued an Acknowledged Slip (Exhibit C-21) The Claimant further stated that the Defendant directed him to teach Physics at its Jupep Programme. Above all, his Employment Letter (Exhibit C-2) and Dismissal Letter (Exhibit C-8) was signed by the Registrar of the Defendant. The Claimant argues that assuming while not conceding that the LASU JUPEB Foundation Programme is the employer of the Claimant; that LASU JUPEB Foundation Programme is an integral part of the Defendant and an agent of the Defendant.
20. On issue two, “whether the Claimant is a public servant whose employment is clothed with statutory flavour. According to the Claimant, “a Public Servant is one who works in the service of the Federation, State or Local Government. It also covers staff of government agencies established by Statutes. These categories of workers have their employment clothed with statutory flavor.” He argues that by section 318 of the Constitution of the Federal Republic of Nigeria, a staff of a State owned University is a public servant. He further argues that in determining whether his employment is clothed with statutory flavour, recourse should be made to the three documents that bind the parties (1) the Letter of Engagement dated 8th August 2016 (2) the Lagos State University Law 1990 CAP.105 (3) the Condition of Service Guiding Senior Staff of Lagos State University 2008.
21. On issue three; “whether the Claimant was wrongfully and unlawfully dismissed”, the Claimant argues that employment with statutory backing must as necessity be terminated in the manner prescribed by that statute and any other manner of termination inconsistent with the relevant provisions of the statute is null and void. That in determining whether the Claimant was wrongfully and unlawfully dismissed, recourse should be made to the following three relevant documents (1) Letter of Engagement dated 8th August 2016 (2) Lagos State University Law CAP 105, 1990 (2) Condition of Service Guiding Senior Staff of LASU 2008. The Claimant submits that the three months’ notice or salary in lieu of notice provided at paragraph 5 of the letter of engagement was not complied with. The Claimant also submits that at the investigation committee sittings, the allegation leveled against the Claimant was not proved, no witness gave an eye witness testimony against him, no documentary evidence was tendered against him, Miss Tina denied that she was helped, he denied all the allegations; yet the Committee still found him guilty. The Claimant submits that he was thus denied fair hearing and the wrongful procedure and conclusion shows that he was wrongfully dismissed. The Claimant argues that paragraph 3 of the letter of dismissal no law empowers the Vice Chancellor to dismiss or to give final approval for the dismissal of any teaching staff of the Defendant.
On issue four, “whether the Claimant is entitled to reinstatement, arrears of salaries and award of damages”, the Claimant argues that it is trite law that where it is established that a public servant has been wrongly or unlawfully dismissed from office such an employee is entitled to reinstatement in addition to salary arrears and damages. He refers to the case of GEIDAM v. NEPA (2001) 2 NWLR (PT. 696) 45 CA where the Court held that; ”where an employment protected by statute is terminated unlawfully, the remedy is to declare such termination null and void and to reinstate the employee so affected to his former position” and the cases of Nigerian Gas Co Ltd v. Dudusola (2006) 18 NWLR (PT. 957) 292 CA, and Idoniboye-Obu v. NNPC (2003) 2 NWLR (PT.805) 589 SC. He further argues that assuming but not conceding that his employment is a master and servant employment, he will be entitled to the three month salary in lieu of notice.
22. In response to the issue of collective agreement referred to by the Defendant, the Claimant argues that in so far as the parties herein are not trade unions, the collective agreement canvassed by the Defendant in its final written address has no bearings to the issues between the parties. on the issue of fair hearing, the Claimant argues that the right to fair hearing is a fundamental constitutional right guaranteed by the Constitution and a breach of it vitiates such proceedings and renders same null and void - Kotoye v. CBN (1989) 1 NWLR (PT. 98) 419. He argues that since the allegation against him was not established, his dismissal was contrary to the principle of fair hearing.
DECISION
17. I have considered the processes filed in this matter, the evidence led, the exhibits tendered and the arguments of Counsel. I adopt the following issues, which in my view incorporates the issues identified by the parties, for determination:
1. Who is the Claimant’s employer?
2. Whether the Claimant’s employment has statutory flavour.
3. Whether the determination of the Claimant’s employment complied with the Claimant’s contract of employment/ with Law.
4. Whether the Claimant is entitled to the reliefs he seeks in this suit.
Issue One
18. The case of the Claimant is that he was employed by the Defendant. To prove this fact, the Claimant tendered exhibits C1, C2, C3, C8 and C9. Exhibit C1; an advertorial for employment placed on the Guardian of June 14. 2016 by the Defendant and signed by the Registrar of the Defendant. It invited applications from qualified candidates into the Defendant’s JUPEB Foundation Programme. Applications for the advertised positions were to be addressed to the Registrar of the Defendant. It was the Defendant who received and acknowledged receipt of the application letter and also issued its acknowledgement slip to him (exhibit C21). Sequel to the Claimant’s success at the interview, the Claimant was issued a letter of engagement as a Tutor in the JUPEB Foundation Programme of the Defendant via exhibit C2. The Defendant subjected the Claimant to a health check and issued him exhibit C22; its Health Centre Senior Staff personal card. The Defendant issued the Claimant an Identification Card (exhibit C22) after employing him. The Defendant paid the Claimant his salaries and it was the Defendant who dismissed the Claimant. Though the Defendant denied employing the Claimant, and pointed at the JUPEB Foundation Programme, as the employer, the Defendant did not show to this Court that the JUPEB Programme had the capacity to so employ the Claimant. In the absence of any proof to the contrary, I am convinced that the Defendant was the Claimant’s employer. I so hold.
Issue Two
19. Issue two is “whether the Claimant’s employment has statutory flavour”. The Claimant’s argument on this issue is that since the Defendant is a creation of statute, his employment, by necessary implication, has statutory backing. He referred to Part IV, section 318 (F) of the 1999 Constitution as amended, on public service of a state meaning “the service of the State in any capacity in respect of the Government of the State and includes service as staff of any educational institution established or financed principally by a government of a State” He argued that the Defendant is a Lagos State government public institution established by statute, the Lagos State University Law of 1990 CAP 105; that by implication, its staff including the Claimant are public servants. The Claimant copiously referred to sections of the Lagos State University Law on the composition of the University. The Defendant, on the other hand, argues that the applicable law for the termination of the engagement of the Claimant is his Letter of Engagement dated 8th August 2016, and not the Condition of Service Guiding the Senior Staff of Lagos State University. They argued that the Condition of Service, having not been incorporated into the letter of engagement, does not apply to the Claimant. In making this argument, the Defendant erroneously attributed the nature of a collective bargain agreement to the Conditions of Service, by the cases it cited.
20. Though I have already found that the Defendant is the Claimant’s employer, it remains to establish if that fact alone, makes the Claimant’s employment one backed by statute. The document that brought the Claimant’s employment into existence is exhibit C2 – the letter of engagement. It is the law that the fact that the Defendant is a federal government agency does not automatically translate its employees to public servants, subject to the Public/Civil Service Rules, without more. See Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660. There has to be proof that the contract of employment intended, and did create an employment governed by statute. The case of Ogunke v. National Steel Development Authority (1974) NMLR 128 is regarded as a locus classicus on when employment is said to have statutory flavour and when it is governed by the terms under which parties agree to be employed. The case states that:
An employment is said to have statutory flavour when the appointment is protected by statute or laid down by regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside the category is governed by the terms under which the parties agreed to be master and servant.
An employment is thus said to have statutory flavour if it is backed by statute. On this issue, the Supreme Court in the case of Comptroller General of Customs & Ors v. Gusau (2017) LPELR-42081(SC) held that:
An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame Vs W.A.E.C. (1992) NWLR (Pt.265) 303; Olaniyan vs University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the respondent’s employment was governed by the Civil Service Rules 2008. In other words, his employment enjoyed statutory flavour.” Per KEKERE-EKUN, JSC. (P. 31, Paras. B-E)
21. In determining whether the Claimants’ employment is statutorily flavoured or not, the Courts have held that recourse should be had to the contents of the letter of appointment. See FMC, Ido Ekiti & Ors. v. Kolawole(2011) LPELR-4149(CA). In the case of NIMASA V. ODEY (2013) LPELR-21402(CA) CA the Court stated the ingredients of a contract with statutory flavour as;
Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavor include the following:
a. The employer must be a body set up by statute; and
b. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.
The above position was restated by the Supreme Court in the case of Kwara State Judicial Service Commission & Ors v. Tolani (2019) LPELR-47539(SC). There, the Court restated per PETER-ODILI JSC as follows:
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:-
(1) 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.
The Court went further that:
I cannot resist the position of this Court in the case of Imoloame v West African Examinations Council (1999) 9 NWLR (Pt.265) 303 per Karibi-Whyte JSC thus:- “There is an employment with statutory flavour when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”.
21. In this case, I find that condition (a) has been met, as there is no contention on the status of the Defendant being set up by a statute. I have considered exhibit C2; the letter of engagement. It is written on a headed paper of the Defendant’s JUPEB (LASU FOUNDATION) PROGRAMME. It is headed “Engagement as Tutor III in the Joint University Preliminary Examination Board, Lagos State University Foundation Programme”. It is clear from exhibit C2 that the Claimant was employed by the Defendant for its JUPEB Programme. Thereafter, the Claimant functioned as a Tutor in the Programme. Exhibit C2 informed the Claimant that, inter alia:
…I am pleased to INFORM you that the Board of the Programme has APPROVED your engagement as Tutor III (PHYSICS) on Teachers Salary Scale (TSS)07/1…
…Your contract of engagement may be terminated on either side by giving three (3) months’ notice of the intention to do so or tendering payment of three months’ salary in lieu of notice.
… You are NOT to embark on any industrial action or picketing while your contract of engagement subsists with the University (JUPEB) Programme.
… On arrival at the Lagos State University Foundation, Badagry Campus, please report to the Programme Secretary, to complete your assumption of duty formalities.
22. There is no place in exhibit C2 that the Statute establishing the Defendant is referred to, or any instrument made pursuant to the said Law. The Claimant made arguments to the effect that exhibit C2 contained provisions which are also contained in exhibit C4, the Conditions of Service Guiding Senior Staff of the Defendant and the Constitution of the Federal Republic of Nigeria(as amended). Those provisions in the letter of engagement were: the requirement of being declared medically fit, verification of claims for indigeneship and requirement not to be engaged in any other paid work. These, in my view, does not in any way infer the incorporation of the provisions of exhibit C4 into the Claimant’s employment. If the Defendant intended that exhibit C4 should apply to the Claimant, then it would have stated so expressly; instead of picking off items there and stating them in the Claimant’s contract. The decision of the Supreme Court in Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt.805)589 is very instructive on when a contract of employment and conditions of service can impute statutory flavour to an employment. It states that:
Conditions of service which will give a statutory flavour to a contract of service cannot be a matter of inference. They must be conditions which are expressly set out by statute such as S.17(1) of the University of Lagos Act, 1967 or statutory regulations made under subsidiary legislation, such as the Civil Service Rules. Thus, a regulation with statutory flavour must be enacted by the Parliament or any Law making body as a schedule to an Act or Law or as a Subsidiary Legislation. In the instant case, the conditions of service under which the Appellant was employed were drawn up by the Board of Directors of the Nigerian National Petroleum Corporation. They therefore have no statutory flavour like S. 17 of the University of Lagos Act and Public Service Commission Regulations which governed the employment of Olaniyan and Shitta-Bey respectively.
The Supreme Court continued that:
The assertion in submission (1) that the terms and conditions contained in exhibit B have the status of statutory provisions is most astonishing. It may well be true that those terms and conditions were made because of section 4 subsection (1) of the Act which set up the Respondent but there is nothing to justify their being regarded as statutory provisions, nor can it be argued that they could not have been made even in the absence of that sub-section at least in regard to termination of appointment.(Emphasis mine)
23. The Claimant referred to the provisions of sections 11(1) empowering the Defendant to make statutes, but did not show which statute was made pursuant to it; and how it applies to him. I have already stated that Claimant’s letter of engagement has no reference to any of the Defendants statutes or instruments made pursuant to it. Claimant has relied on the Conditions of Service of the Defendant’s Senior Staff but did not point to the section that applies to him, apart from the general reference to the document. I have gone through this Condition of Service (exhibit C4). In its appendix I, it lists the CAREER STRUCTURE FOR ACADEMIC STAFF of the Defendant; the Claimant’s position is not listed there. I have also gone through Appendix II of exhibit C4 – CAREER STRUCTURE FOR SENIOR NONE TEACHING STAFF of the Defendant; the Claimant’s position is not listed there. There is TEACHERS CADRE for the Defendant’s International School; which is not the Claimant’s position. The salary structure prevalent in exhibit C4, does not include the Claimant’s. Thus, considering and applying Claimant’s letter of engagement, and in fact, the PRIMACY OF FACTS available in evidence, I do not find any facts suggestive of the Claimant’s employment having statutory flavour. Neither the LASU Law, nor the Conditions of Service (exhibit C4) is shown to be applicable to the Claimant. The Claimant has not shown that he enjoys the same conditions of service, in practice, with the other staffs of the Defendant; to apply the primacy of facts, in his favour. In fact, the Claimant had submitted that “For instance, Paragraph 1 of the Letter of Engagement which placed the Claimant on Teachers Salary Scale (TSS) 07/1, was extracted from page 185 of the Condition of Service for Senior Staff of LASU under the TEACHERS CADRE”; yet, page 185 refers to Teachers Cadre, LASU International School and not to the JUPEB Programme. The salary for the Teachers Cadre at page 185 is Hatiss, as against the TSS 07/1 of the Claimant. Exhibit C4 P. 185 does not have Tutor III, Claimant’s position. I therefore hold that the Claimant’s employment does not have statutory flavour. The Claimant’s employment is regulated by exhibit C2 – his letter of engagement.
Issue Three
24. Issue three is “whether the determination of the Claimant’s employment complied with the Claimant’s contract of employment”. The Claimant’s case is that he was not given fair hearing before the termination of his employment on the grounds of examination malpractice. The Claimant relying on the premise that his employment has statutory flavour, alleged that the examination malpractices investigation committee, did not give him fair hearing. He argued that the Committee was not the proper committee to try him. He relied on the provisions of the Conditions of Service Guiding Senior Staff of the Defendant. I have already found that the Claimant’s employment is not statutorily flavoured, and that the Conditions of Service does not apply to the Claimant. Having thus found, it means that to determine if the Claimant was given fair hearing, neither the Defendant’s Law; nor its Conditions of Service is applicable.
25. I have considered the issue of lack of fair hearing raised by the Claimant, with respect to the procedure before the investigative committee, in view of the fact that the employment relationship between the parties was devoid of statutory flavour. It is the law that for employment without statutory flavour, the dictates of fair hearing is met upon opportunity given to the employee to state his case; even by the issuance of a query. In the case of FBN
v. Akanji (2017) LPELR-43555(CA), the Court of Appeal held on the issue of fair hearing that:
In the circumstance therefore, the Appellant having served the Respondent a Query dated 11th January, 1999, and the Respondent having voluntarily replied on the 11th day of January, 1999 complied fully with the provisions in Clause 6 of the Employee Code of Conduct and Ethical Standard Guidelines. The Appellant in my view gave the Respondent in the instant appeal an opportunity to be heard. Upon being called upon to respond to allegations of gross, grave and grievous misconduct, the employer is entitled to dismiss if the reasons furnished by the employee in his response to the query are not concrete, cogent and convincing. In this case, I hold the view that the Respondent was given fair hearing and that the Appellant exercised its power to summarily dismiss the Respondent in line with Clause 4 of the Employee Code of Conduct and Ethical Standard Guide Lines.” Per ABUBAKAR, J.C.A. (Pp. 36-47, Paras. C-B)
See also the case of Monikhe v. Unity Bank PLC (2011) LPELR-1503(SC where the apex Court held that:
Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice.”per RHODES-VIVOUR, JSC. (P. 31, Paras. F-G).
26. Exhibit C8; dismissal letter dated 14th August 2017, informed the Claimant that; “the investigation committee having established your culpability in the case concluded that you were guilty of the examination malpractice which is a gross misconduct”. It was consequent upon the finding that the Defendant approved the recommendation of the JUPEB Management Board and dismissed the Claimant. The issue of fair hearing brought before this Court is to determine if in the process of dismissing the Claimant for misconduct, he was given the opportunity to state his case. So, was the Claimant given the opportunity to be heard in the case of examination malpractice leveled against him? Exhibit C7 tendered by the Claimant is an invitation to appear before the Committee on the subject matter of examination malpractice. Exhibits D4 – D6 are Minutes of various sittings of the Investigation Committee on Examination Malpractice during the final JUPEB Physics practicals held 21st June 2017. Exhibit D6 shows the interaction between the Claimant and the Committee. Exhibit D7 is the report of the Committee and Exhibit D8; the Committees recommendation advising the dismissal of the Claimant. The Claimant during cross examination stated that:
(Looks at Exhibit C7) It is an invitation to appear before the Committee. I was not confronted with any allegation. I was invited to say what I knew about the incident just like others. I attended only one day just like other teachers because it concerned my subject physics. (Reads para (ii) of P. 2 of exhibit C10) . There was allegation against me. Others were also alleged. I got to the panel and I said what I knew. Yes, the Committee listened to me but it was the Student Disciplinary Committee. I was not a student. I was invited before the Examination Malpractice Committee instituted by the Students’ Disciplinary Committee. Yes, I was invited and I explained myself. It is true that it is the recommendation of the Committee that I am not happy with.
27. The above evidence of the Claimant shows that he was given opportunity to defend himself before his dismissal. There is no evidence that the Claimant challenged the composition of the Committee in the course of the investigation. In the case of Raji v. UniIlorin (2007) 15 NWLR (Pt.1057) pg. 259, the Court of Appeal stated that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation. See Edet v. Chief of Air Staff (1994) 2 NWLR (Pt.324) 41 at 59; Saba v. NC.A.T.C. Zaria (1991) 5 NWLR (Pt.192) 388 at 418. In the case of Arinze v. F.B.N. Ltd (2004) 12 NWLR (Pt.888) P.663 the Supreme Court held that in case of misconduct bordering on criminality all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. The decision of the Court of Appeal, in Venn v. Access Bank Plc & Ors Suit No: CA/L/134/2012( 2015) All FWLR (Pt. 772) 1765 @ 1786, 1796 CA) is instructive on this. In following the position of the Supreme Court, the Court of Appeal held that:
I agree with the finding of the learned trial judge that the Appellant was duly confronted with the accusation made against him and given the opportunity to explain by telling his own side of the story but his explanation was not considered satisfactory by the Disciplinary Committee who recommended his dismissal to the 1st Respondent, hence his complaint that he was given fair hearing cannot stand. In the case of Arinze v. First Bank of Nigeria Ltd (2004) 12 NWLR (Pt.888) 663. It was held by the Supreme Court that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.
28. Following the decision above, I am of the opinion that the Claimant was given fair hearing before the Defendant dismissed him. Claimant also asserts that having been alleged of committing examination malpractice, he ought to have been prosecuted for it before he could be dismissed by the Defendant. In the case of Eze v. Spring Bank Plc (2011) LPELR-2892(SC), MAHMUD MOHAMMED, JSC at (Pp 15 – 16 Paras B – A) held that:
In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch. D339; Babatunde Ajayi v. Texaco Nigeria Ltd. & Ors. (1987) 3 N.W.L.R. (Pt. 62) 577. And gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss of the employee. See Ridge v. Baldwin (1953) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599. €‹To warrant a summary dismissal, it suffices that the conduct of the employee, as in the present case, is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee as found by the trial Court and affirmed by the Court below. See Teliat Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. (Pt. 5) 17
29. In the case of FBN v. Akanji (2017) LPELR-43555(CA), the Court of Appeal referred to several Supreme Court decisions on the issue of fair hearing and whether there is need for criminal conviction before an employer can terminate an employee for allegations bordering on crime. The Court held that:
The position taken by the learned trial Judge and the eventual decision of the lower Court is contrary to the established principle of law set out in this Judgment. In exercising the powers of summary dismissal, it is sufficient if the employee is issued a query and allowed to willingly respond to same, by so doing the Constitutional right to fair hearing would have been observed. As already established by this Court in AVRE vs. NIPOST (supra), “...whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defense.”
In ARINZE Vs. F.B.N. LTD (2004) 12 NWLR (pt. 888) 663; (2004) LPELR-551 (SC) pg. 11, the Supreme Court of Nigeria per ONU, JSC held that:
“As Wali, JSC pointed out at pages 214 – 215 in the latter case: ‘It is not necessary, nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality ... to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defense. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.”
ONU, JSC further held in ARINZE Vs. FBN LTD (supra) at pg. 16, Paras. E-F that “...in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.” This position of the law remains unassailable, and let me state that an employer has powers subject to the terms of the agreement with the employee to dismiss for gross, grave and grievous misconduct where the employee is given opportunity to be heard.
On whether the criminal allegation against an employee ought to be proved by the Court before the employer can dismiss on grounds of misconduct which borders on criminality, the law is well settled and has been restated by this Court that it is not an essential requirement that before an employer can summarily dismiss his employee, he must have been tried by a Court of law. See: AJUZIE vs. FBN PLC (2016) LPELR-40459 (CA) Pg. 36, and OBIANWUNA vs. NEPA (2016) LPELR-40935 (CA) Pg. 21-23, where this Court held that:
“...However, where fraud is alleged in a general sense such as in a contract of employment as in the instant case, it is not the same as fraud understood and cognizable under criminal law, therefore the employee need not be prosecuted in a criminal Court and found guilty before he can be dismissed by his employer...”
In the circumstance therefore, the Appellant having served the Respondent a Query dated 11th January, 1999, and the Respondent having voluntarily replied on the 11th day of January, 1999 complied fully with the provisions in Clause 6 of the Employee Code of Conduct and Ethical Standard Guidelines. The Appellant in my view gave the Respondent in the instant appeal an opportunity to be heard. Upon being called upon to respond to allegations of gross, grave and grievous misconduct, the employer is entitled to dismiss if the reasons furnished by the employee in his response to the query are not concrete, cogent and convincing. In this case, I hold the view that the Respondent was given fair hearing and that the Appellant exercised its power to summarily dismiss the Respondent in line with Clause 4 of the Employee Code of Conduct and Ethical Standard Guide Lines.” Per ABUBAKAR, J.C.A. (Pp. 36-47, Paras.
30. The essence of the dictum quoted above is to show that the fact that no Court had convicted the Claimant of the allegations does not preclude the Defendant from taking steps to enforce its disciplinary powers, as an employer.
Issue Four
31. Issue four is “whether the Claimant is entitled to the reliefs he seeks in this suit”. Now to issue three, which is whether the Claimant is entitled to her claims? I shall take the reliefs sought in this suit seriatim.
A) Relief ‘A’ is for “A DECLARATION that the dismissal of the Claimant’s appointment by the Defendant via a letter dated the 14th day of August 2017, in default of serving the agreed three months prior written notice is in breach of the terms of engagement as contained in the letter of employment dated 8th August 2016”. It is true that the Claimant’s employment instrument provides for the issuance of three months’ notice; however, it is trite that where an employer is found guilty of misconduct, as in this case, such an employee is no longer entitled to the notice. In Union Bank of Nigeria Plc v. Soares (2012) LPELR-8018(CA), the Court held that the conduct of an employee which constitutes gross misconduct, without much ado, attracts summarily dismissal. Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.5) 17. This relief can therefore not be granted, due to the circumstances of the Claimant’s dismissal.
B) Relief ‘B’ is for “A DECLARATION that the purported trial of the Claimant’s case by the Student Affairs Disciplinary Committee through the Examination Malpractices Investigation Committee wherein the Claimant was declared guilty without any cogent evidence offends the principle of natural justice and it gravely violated the Claimant’s fundamental right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. I have found under issue three that the Claimant’s right to fair hearing was not breached, in the circumstances of this case, as he was given opportunity to state his case.
C) Relief ‘C’ for “A DECLARATION that the disciplinary procedure adopted by the Defendant upon which the Claimant was dismissed and/or removed is in total violation of the provision of Section 23, 24 and 25 of the Lagos State University Law CAP 105 of 1990 and Chapter III of the Conditions of Service Guiding Senior Staff of Lagos State University Law of June 2008” fails as I have found that the Lagos State University Law Cap 105 of 1990, and the Conditions of Service Guiding Senior Staff of Lagos State University, are not applicable to the employment of the Claimant.
D) Relief ‘D’ for “A DECLARATION that the trial of the Claimant’s criminal act without first handing him over to the law enforcement agencies is ultra vires, null and void” fails in view of the finding in paragraphs 28 and 29 of this judgment.
E) Relief ‘E’ for “ AN ORDER of Court setting aside the Defendant’s wrongful letter of dismissal of the Claimant’s appointment, dated 14th of August 2017 for breach of the rules of natural justice and fair hearing and for breach of the provision of Section 23, 24 and 25 of the Lagos State University Law CAP 105 of 1990 and Chapter III of the Conditions of Service Guiding Senior Staff of Lagos State University Law June 2008”, fails based on the finding in issue two.
F) Reliefs F – K fail; in view of the failure of reliefs A – E.
For the avoidance of doubt; this suit fails in its entirety, and is hereby dismissed.
Judgment is entered accordingly. I make no Order as to cost.
…………………………………….
Hon. Justice Elizabeth A. Oji PhD