IN THE NATIONAL INDUSTRIAL COURT NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: August 9, 2022 SUIT NO. NICN/ABJ/348/2016
BETWEEN
MR. IBRAHIM ALABI IS-HAQ - CLAIMANT
AND
COMPUTATER PROFESSIONAL - DEFENDANT
(REGISTRATION COUNCIL OF NIGERIA)
REPRESENTATION:
R.A. Sadiq Esq for the Claimant.
Layi Babatunde SAN for the Defendant, with Olabode D.Owoeye.
JUDGMENT
Introduction and claims
[1] The claimant filed this complaint against the defendants on 6th October, 2016 together with the accompanying processes, and is seeking the following reliefs:
1) A Declaration that the Defendant’s letter dated the 23rd May, 2016 although served and received on the 27th of July, 2016 by the Claimant which conveys the Claimant’s purported dismissal from service of the Council is null, void and of no effect whatsoever same having contradicted and for non-compliance with the provisions of part V and Schedule II of the Computer Professionals (Registration Council of Nigeria) Act and the Public Service Rules.
2) A Declaration that the purported dismissal of the Claimant by the Defendant’s letter dated the 23rd May, 2016 although served and received on 27th July, 2016 by the Claimant without giving him the requisites opportunity and materials to defend himself is contrary to the provision of part V and Schedule II of the Computer Professionals (Registration Council of Nigeria) Act and Rule 030302 – 030307 and 030406 of the public service Rules and therefore unlawful, ultra vires, null, void and of no effect whatsoever.
3) A Declaration that all and every act of Mr. Idowu Olusile as Acting Registrar/Secretary of the Council which led to the purported dismissal of the Claimant by virtue of the letter dated 23rd May, 2016 although served and received 27th of July, 2016 by the Claimant are unlawful, ultra vires, null, void and of no effect whatsoever by virtue of his non-qualification to act in such capacity pursuant to the mandatory provisions of Part III Section 6 (1) and (4) of the Computer Professionals (Registration Council of Nigeria) Act and other relevant provisions of the Act.
4) A Declaration that the Claimant’s purported dismissal is unlawful, illegal, null, void and of no effect whatsoever.
5) An Order of the Honourable Court directing the immediate reinstatement of the Claimant by the Defendant to his office and his position being the Director, Research and Strategy Department in the Defendant.
6) An Order of the Honourable Court compelling the Defendant to pay to the Claimant all his salaries, emoluments and allowances as a public servant from 1st November, 2015 till date.
7) An Order directing the Defendant to pay the sum of N125,000,000(one hundred and Twenty Five Million Naira Only) as general damages to the Claimant for the hardship, psychologically trauma and domestic instability the Claimant suffered for his unlawful and illegal dismissal from service.
8) Substantial cost of this action in the sum of N5,000,000 (Five Million Naira Only.
[2] The defendant filed an amended statement of defence, and a counter claim together with the accompanying processes on 7th July 2021. The defendant counter claimed as follows:
i. An Order of the Honourable Court compelling the Claimant to return the project car, Toyota Camry with plate number CPN 04 to the Defendant.
ii. General damages in the sum of N5,000,000 (Five Million Naira) for the unjust and/or unlawuful and continuing retention/detention of the counter-claimant’s project car thereby depriving the counter-claimant of the use of its project car since September, 2015.
The claimant filed a reply and a defence to the counterclaim on 19 June 2017. The Defendant filed a reply to the claimant’s defence to the counter claim on 27th November 2017.
Case of the Claimant
[3] The case of the claimant on the pleadings is that he is a staff of the defendant occupying the position of Director, Research and Strategy Department. The claimant averred that he resides at Block 6, San-Pedro Close, Wuse Abuja and has been in the service of the Defendant for more than seventeen (17) years of dedicated service and remained in the defendant’s employment until the letter dated 23rd May, 2016 dismissing him from service was received by him on 27th of July 2016. The claimant stated that in order to improve the quality of service to the defendant, he obtained an admission into a University in United States of America to pursue a Doctorate Degree in information Technology. That upon obtaining the admission by correspondence dated 15th May 2015 he wrote to the Chairman of the Council seeking for study leave with pay and it was approved by the Chairman on the 3rd June, 2015. The claimant averred that on 3rd September, 2015 he proceeded to the United States of America after perfecting all his travel documentations.
[4] The claimant stated that not long after he left the country, he received an e-mail dated 10th September, 2015 notifying him of the withdrawal of his official vehicle; and a few weeks after, he received another mail from the defendant and attached to it was the letter dated the 21st October, 2015 where he was requested to explain his proceeding on two (2) years study leave without authorization. The claimant stated that he also received another mail wherein the letter dated 30th October, 2015 reminding him of the notification of the withdrawal of his official vehicle was attached. He averred that he responded to all the letters by his letter dated 24th November, 2015 and explained as required of him. The claimant stated that few days later, he received a mail from the defendant requesting him to appear before an investigative panel constituted by Mr. Idowu Olusile as the Acting Registrar/Secretary to the Council.
[5] Thee claimant stated that he knows that as a matter of law and fact Mr. Idowu Olusile is not qualified to act as the Secretary/Secretary to the Council by virtue of his qualification as a holder of degree in English Language and therefore not a member of profession. That by the provision of Section 6(1) and (4) of the Computer Professionals (Registration Council of Nigeria) Act, the Registrar/Secretary to the Council or whoever will act as Acting Registrar/Secretary of the Council must be a registered member with not less than 10 years post call experience. The claimant stated that to show the malicious intention of the defendant, the letter requesting him to appear before the investigative panel on Friday the 27th of November, 2015 by 10.00am at the Council Secretariat was e-mailed and received by him on 26th of November, 2015 when the defendant knew he was far in the USA studying and it was impossible for him to appear before the panel. The claimant stated that the defendant maliciously published a notice in the Guardian Newspaper of 11th October, 2015 notifying the general public of his sack alongside two other directors without following any due process of law long before the letter of 21st November, 2015 requesting him to appear before the investigation panel.
[6] The claimant averred that the defendant without any prior notice stopped payment of his monthly salaries and perquisites of office from November, 2015 till date, and that he did not hear from the defendant again until when he received an email on 27th of July, 2016 where the official letter notifying him of his dismissal from service was attached. The claimant averred that he was never given the requisite fair hearing before the decision to dismiss him from service as required by the Computer professionals (Registration Council of Nigeria) Act and the Public Service Rules.
[7] In reply to the defence and defence to the counter claim, the claimant stated that he wrote the letter dated 22nd August, 2015 to the Head Admin and HR of the Defendant notifying him of the fact that he was relocating to the USA and will no longer be available at his residential address No. 16 Bamgboye Street, Ilasamaja, Mushin Lagos, or his e-mail address and phone number because he was relocating to another place within the USA. And he also notified them in that he would forward his new contact and information immediately he has settled down in his new location within the United States of America. The claimant averred that the receipt of this letter was acknowledged by the Head Admin and HR on the 23rd of August 2015; and that by his mail 23rd October, 2015 to the Head HR, he notified the defendant of his new email address and pleaded to be given him adequate time to respond because he was always busy with work over there and hardly checks his mail on daily bases.
[8] The Claimant stated that the email of 15th May 2015, 10th Sept 2015; 21st October 2015; 30th October 2015; 21st Nov. 2015; 24th Nov 2015; 27th Nov. 2015 and 23rd May 2015 were through the new e-mail address. That it was mischievous and malicious for the defendant to have sent the said correspondence of 30th October 2015, January 2016 and all other correspondences meant for him to his previous residential address in Lagos. The claimant averred that the then Chairman of the defendant, Mrs. Sekinatu Yusuf duly approved his study leave to the United States of America on the 3rd June, 2015 after the Registrar approved it on the 18th May, 2015. The claimant further averred that the decision of the Council at its 75th regular meeting of the Council held on the 9/10/2015 was illegally arrived at without fair hearing and was contrary to the provision of Personnel Policy/Staff Handbook duly approved at the 49th Regular meeting of the Council held on Thursday May 17, May 2007, and the Public Service Rules. He stated that he did not receive any letter querying his proceeding on study leave or any letter notifying him of the decision to constitute investigative panel to probe him. The claimant stated that he was wrongly dismissed and that at no time was a disciplinary committee constituted to hear his case and if any, he was not invited to appear before it.
[9] The claimant/defendant to counter claim stated that an official car was given to him as a Director and that it is not a project car; and that the car is still in his possession having approached the court to challenge his dismissal. He stated that the defendant/counter claimant has no right to demand for a return of the car on grounds that his dismissal is unlawful.
[10] The claimant testified in support of his case. He adopted his statements on oath. They were in the exact terms of the pleadings and he relied on his admitted documents. The claimant told the court that his current address is 3928, Noyes Circle MD 21133 USA. Under cross-examination he told the court that his wife and children live at 16, Bamigboye Street Ilasamaja, Mushin Lagos. The claimant confirmed that apart from exhibit C1 he has no other employment letter from the defendant. He confirmed that he was living at 16, Bamigboye Street when he applied for 5 days casual leave in August 2015 and he received the approval to proceed on leave by email. The claimant told the court that after the casual leave expired he was at his address 16, Bamigboye Street and reported to his office everyday between August 24, 2015, and September 2015. Upon being shown exhibit IA2, he confirmed that he was expected to resume at work on Monday 24th August 2015 but he did not go back to work.
[11] The claimant told the court that he got an admission to a University in the USA to pursue a doctorate degree; and he admitted that the letter of admission into the University is not before the court. He said he was familiar with the Public Service Rules on study leave abroad; and was aware that under Rule10224 he is to provide his letter of admission, and the details of where he is going. The claimant stated that he submitted all the necessary documents along with his application for study leave but he could not recollect what the documents were. He said he got the defendant’s approval to go to the USA, and he confirmed that the letter of approval was not before the court. The claimant stated that he travelled to the USA but said he could not remember the date he travelled in September. The claimant told the court that exhibit IA1 was sent to him by email when he was in the USA. He said he replied the letter but he did not comply with the directives to come for documentation; that he relocated to America when he began his programme.
[12] The claimant said his last position was Director of Research. He confirmed that a Toyota Camry car with registration number CPN 04 was attached to his office; and he admitted that the vehicle was still with him. The claimant told the court that he was not using the vehicle in the USA; and he identified the letters written to him to return the vehicle. The claimant told the court that he was asked to return the vehicle on Thursday 10th September, 2015 but he had travelled then so he ignored the letter (exhibit IA3) and kept the vehicle. The claimant identified exhibit C6 as the reply to the query (exhibit C5) written to him by Mr Idowu Olushile; and stated that he received another letter with the same contents written by Mr Okonkwo and he replied Mr Okonkwo and copied Mr Olushile. The claimant stated that exhibit IA5 directed him on how and whom to reply, but he did not carry out the instruction.
Case of the Defendant
[13] The case of the defendant on the pleadings is that the claimant was its staff and that his last known address whilst under the employment of the Council, at its Secretariat, No. 110 Norman Williams, Ikoyi Lagos resided at No. 16 Bamgboye Street, Ilasamaja, Mushin Lagos. The defendant stated that all correspondence to the claimant were sent to this address. The defendant averred that the claimant’s self-acclaimed adventure at pursuing a Degree course in Information Technology in an undisclosed University in the United States was never made known to it. The defendant stated that when it later learned that the claimant absconded from his duty because of the alleged pursuit of a Doctorate Degree in USA, it requested for the admission letter pursuant to which the claimant claimed he was admitted to the said institution in compliance with the mandatory guideline in Chapter 10 Rule 100224 of the public service rules (PSR) 2009 which requires a public officer to tender evidence of letter of admission before proceeding on study leave; evidence of duration of the course of study leave; evidence that the course of study is necessary to enhance the performance of duty of the officer, and that the course is relevant to the officer’s profession.
[14] The defendant stated that the claimant refused and/or neglected to make the said evidence available till date. The claimant refused to present evidence that he was qualified to proceed to study leave as required by the Public Service Rules. The defendant averred that the claimant was never granted any approval; as no approval can be granted for study leave by without full compliance with the mandatory requirement of Chapter 10 Rule 100224 of the Public Service Rules (PSR) 2009. That assuming it was granted, it was granted illegally and in error. The defendant stated that by an memo dated 14th August, 2015, the claimant requested for five days casual and the leave was approved through a memo dated 18th August, 2015. That whilst the claimant was on the five days casual leave, he forwarded a memo dated 15th May 2015 by email to the Head HR in which he claimed that he had been granted 2 years study leave with pay by the then Chairman of the Council Alhaja Sekinat Yusuf.
[15] Upon the receipt of the memos, the Head, HR replied the claimant by email dated 28th August, 2015 informing him that he had not obtained the necessary approval before proceeding on 2 years study leave and directed him to resume back to the office. That despite the receipt of the mail, the claimant failed to resume on the specified date; and the Head, HR sent a letter dated 10th September, 2015 to the claimant’s last known address and to his email directing him to resume to the office before Monday 14th September, 2015 he refused to resume to work. The defendant stated that the car claimed to be his official car is one of the two project cars procured by the Council for the day to day running of its business. That the claimant upon embarking on the unapproved study leave, refused to release the Council’s project’s car in his possession despite repeated demands. The defendant averred that the claimant’s letter dated 24th November 2015 did not answer the Council’s request for proof that he actually got any admission to study a course in the USA as claimed. That rather, the said letter only attempted to castigate and question the defendant’s authority to appoint Mr. Idowu Olusile as the Acting Registrar/Secretary of the Council.
[16] The defendant averred that it duly constituted the panel at its 75th Regular meeting held on 9th October, 2015 and it was set up to investigate, and sit over the case of the claimant’s continued absence from work; and thereafter submit its report to the Council for further deliberation. The defendant further averred that Mr. Idowu Olusile was properly appointed by the Council at its 75th Regular meeting pending the appointment of a substantive Registrar. The defendant stated that the Chairman of the investigative panel had written two letters to the claimant dated 21st October 2015 and 10th November 2015, requesting him to explain in writing why disciplinary action should not be taken against him for abandoning his duty post. And so it is not correct that the defendant was malicious against the claimant. The defendant averred that it was never aware of the claimant’s whereabouts as no approval was ever granted him to proceed on any study leave.
[17] The defendant averred that it did not authorize the publication of the alleged notice of sack in the Guardian Newspaper of 11th October, 2015; that the author of the story Mr. Adeyemi Adepetun had refuted the story in the Guardian Newspaper on Wednesday 14th October, 2015 immediately the Council became aware of the said publication. The defendant stated that it published a rejoinder in the Vanguard Newspaper dated Wednesday 14th October, 2015 at page 46, Daily Trust Newspaper dated Friday 16th October, 2015 at page 12 and Leadership Newspaper dated Thursday 15th October, 2015 at page 19. That the claimant in his letter of 7/11/2015 admitted the fact of the rejoinder.
[18] The defendant averred that notice to stop the claimant’s salary was directed by the Council at its 75th Regular meeting held on 9th October, 2015 after several letters to the claimant requesting him to return to work after he absconded from duty without permission and/or authorization. The defendant stated that the claimant was given the requisite fair hearing before he was properly dismissed. The Chairman of the investigative panel of the Council had written two letters dated 21st October, 2015 and 10th November, 2015, to the claimant to explain in writing why disciplinary action should not be taken against him for abandoning his duty post or otherwise absconding from duty. The defendant averred that the claimant’s dismissal from service was in line with the provisions of Chapter 3 Rule 030302 of the PSR 2009, and the recommendations of a duly constituted disciplinary committee. The defendant stated that it has the right to dismiss the claimant for gross misconduct which right it rightfully exercised having regard to his conduct.
[19] In reply to the defence to the counter claim, the defendant/counter claimant stated the claimant was granted causal leave from 17th -21st August and was excepted to resume from casual leave on 24th August 2015; but instead of resuming, he sent an e-mail that he was going abroad to study. The defendant stated that there was no approval for study leave with pay as the claimant did not provide his letter of admission at any time thereby making his claim to further studies abroad doubtful and unfounded. The defendant denied the existence of the documents and/or minutes of meeting of the 40th Regular meeting of the defendant and the letter of approval for study with pay stating that it is therefore not in a position to produce them. That since the claimant claims to have received a letter of approval before proceeding on the study leave, the original letter must be in his possession. The defendant averred that electronic copies of all the letters sent to the claimant’s residence were also forwarded to the e-mail address the claimant requested that his correspondences should be sent to.
[20] The defendant stated that none of the conditions required for the approval of study leave are as contained in rule 100224 PSR were satisfied by the claimant before he absconded from duty under the guise of going on study leave. The defendant stated that the claimant had notice of his invitation to appear before the investigation panel constituted to look into his matter and continuing employment but chose to ignore the invitations. The defendant averred that the claimant is not entitled to an official car, and that the project cars including the one in the possession of claimant were purchased to facilitate the project undertaken by CPN and NITDA on computer science curriculum review and gathering of data. The defendant averred that the claimant and Director of Legal Service whom the projects cars were attached to were requested to return the vehicles and the originals of the vehicle papers to the Administrative department. That while the Director of Legal Service returned the car and the original vehicle papers, the claimant refused to. The defendant stated that the claimant’s dismissal followed all statutory procedural guidelines.
[21] The defendant’s witness is Amao Taofeek Akanni (DW) Head of HR. He adopted his statement on oath which was in terms of the pleadings. DW told the court that he was Deputy Director HR at the material time. In cross-examination, DW confirmed that Alhaja Sekinat Yusuf was the immediate past Chairman of Council when the incident happened, and stated that she completed her tenure in July 2015. DW told the court that Sikiru Shehu was the Registrar at the material time but is no longer the Registrar. DW identified exhibit C2 and the Registrar’s minute on it. He told the court that an application was made to the Registrar, and he did not know if it was presented to the Chairman of Council. DW informed the court that exhibit C12 was not approved by the Council and that it is the Public Service Rules that is used by the Council in administration. DW identified the 75th Minutes of the Council (exhibit D2) and stated that the investigation and disciplinary committees were properly constituted at the 75th Meeting of Council; and that the disciplinary committee forwarded its report to the Secretariat. DW stated that he did not know if a notice of dismissal was served on the claimant, and he did not know when the disciplinary committee sat, or if the claimant was invited to appear before the disciplinary committee. He confirmed that the report of the disciplinary committee is not one of the documents before the court.
Final address
[22] The defendant’s final address is dated 17th March 2022, and is filed on 18th March 2022. The claimant’s final address is filed on 22nd March 2022. The defendant’s reply on point of law is dated 6th June 2022 and is filed the same day. The parties adopted their respective final addresses and made oral submissions.
[23 Learned senior counsel to the defendant submitted two issues for determination:
(1) Whether or not the Complainant’s claims are not liable to be dismissed, having regards to the Law, pleadings and Evidence led before the Court.
(2) Whether or not the Defendant’s Counter-claim ought not be granted, having Regards to the Law, pleadings, and evidence led before the Court.
[24] On issue 1, learned senior counsel submitted that the foundation of the claimant’s claims on which other reliefs rest, are declaratory in nature, and by law the burden of proof and/or duty cast on the claimant is a heavy one, in the sense that such declaratory claims are not granted as a matter of course and not even on the admission of the Defendants but on strict proof of the claimant citing Dumez v Nwakhoba (2008) 12 SC (Pt III) 142; AG Rivers State v AG Akwa Ibom State & Anor (2011) 3 SC 1. He submitted that the claimant did not tender his letter of employment detailing the terms and conditions of his engagement. That what he chose to tender and rely on, is a document of five lines entitled “offer of probationary appointment” that states that “other conditions of service will be worked out later and he was mute on these “other conditions”. He cited Aji v. Chad Basin Development Authority & Anor (2015) 3-4 SC (PT. Ill) 1 at 20 Para 5, Avre v Nigerian Postal Services (2019) 5-6 S.C (Pt. Ill) 30 at 44-47 and submitted that the claimant’s claims have collapsed having failed to meet the evidential burden placed on him by law.
[25] Learned senior counsel submitted that there is ample evidence before the court that the claimant despite abandoning his duty post for a prolonged period without permission, was given ample opportunity to explain his absence but he chose to be arrogant and recalcitrant thereby jeopardizing the opportunity by his own acts of misconduct and feeling of overbearing self-importance. On the pleadings and oral evidence, he was manifestly over indulged and ought by Law, to have been summarily dismissed without much ado when he failed to resume his duties without any justification after the five day casual leave granted him expired. He cited citing Obo v. C.O.E. Bendel State (2001) 1 SC (PT. II) 52 @ 56-57 Para 20-30, Udegbunam v. F.C.D.A (2003) 5 Sc 241 @ 246 Para 5-15, Sule v. Nigerian Cotton Board (1985) 6 S.C (Reprint) 57 at page 88-89
[26] Learned senior counsel urged the court to reject exhibit C2 because it is lacking in probative value. He argued that there is no letter of approval from the defendant's Council to the claimant conveying such purported approval and the endorsement was said to have been done “on behalf of council”. He submitted that no such authority is conferred by Law on the person that purportedly issued it and there is no evidence that it was ever ratified by Council. It was his submission that exhibit C2 therefore is documentary hearsay citing Omega Bank Nig Plc V. O.B.C. Ltd (2005) 1 SC (PT. I) 49 at 75 Para 5-25. That furthermore, exhibit C12 is not pleaded under paragraph 2h of the claimant’s reply to statement of defence and defence to counter-claim. What the claimant pleaded is Personal Policy/Staff Handbook while what is before the court is purported Staff Condition Of Service and no reference to any Policy.
[27] Learned senior Counsel submitted that on the evidence, the claimant rather than furnish the defendant with proof and provide justifiable explanations as to his whereabouts as required when queried, the Claimant in his response, preoccupied himself with challenging the power of the Defendant to appoint Mr. Idowu Olusile as Acting Registrar/Secretary to the Council. That the claimant is merely an employee of the defendant and had no authority whatsoever conferred on him to challenge the defendant’s decision to appoint/employ anyone. He argued that the claimant’s reply to the query exhibit C6 manifests a clear disregard of instruction and thereafter continued to ignore the defendant, his employers. Learned SAN stated that the level of insolence and gross insubordination exhibited by the complainant cannot but be troubling. That it certainly amounts to gross misconduct and constitutes a threat to good order in the Public Service and the court should not indulge such an affront by an employee to his employers. He submitted that the right thing to do even at this stage is to dismiss the claimant’sant’s claims.
[28] Learned senior counsel stated that the claimant during cross-examination admitted that after his response in exhibit C6, he did not respond to any more to the defendant’s letters/mails. He submitted that it is trite law that admitted facts need no further proof and remains binding on party making the admission, citing Ezemba v Ibeweme (2004) 7 Sc (Pt. I) 45, Imoloame V. Waec (1992) 12 Sc (Pt. I) 82, Segun Ajibade v. The State (2012) 12 S.C. (Pt Vi) 94, Sunday Amala V. The State (2004) 6-7 S.C. 105. He submitted that the evidence on the record shows conclusively and uncontrovertibly that the claimant never presented his letter of admission to the defendant and refused to heed the defendant’s call to do so before purportedly travelling out of the country or at any time. He then urged the court to answer issue 1 in favour of the defendant and dismiss the claimant’s claim.
[29] On issue 2, the learned senior counsel to the defendant submitted that the claimant admitted in cross-examination, that a Camry Car with Registration Number CPN04 was attached to him as official car and that the car is still with him even though he is not using it in America. He submitted that the defendant/counter claimant has proved the counter claim and urged the court to grant the counter claim and general damages as the quantum need not be pleaded and proved to grant the relief relying on Union Bank Of Nig. Plc v. Ajabule & Anor (2011) 1 SC (Pt. IV) I.
[30] Learned counsel to the claimant submitted the following issues for determination:
1) Whether the purported dismissal of the Claimant without according him with the requisite right to fair hearing is not unlawful, null and void.
2) Whether on preponderance of evidence and balance of probability, the Claimant is entitled to all his claims in this suit.
3) Whether the Claimant is entitled to damages in this suite and whether the defendant’s counter-claim succeeds and it is entitled to damages.
[31] Learned counsel submitted that the dismissal of the claimant without according him with fair hearing is unlawful, null, void and of no effect whatsoever. He further submitted that, assuming without conceding that approval was not given to the claimant to proceed on 2-year study leave and he is liable to be tried for misconduct, the 75th Regular Meeting of the Council held on the 9/10/2015 constituted two committees, an Investigation Committee to investigate the allegation made against the claimant at the meeting and a Disciplinary Committee to consider the report of the Investigation Committee. He argued that even though the claimant was invited to appear before the Investigation Committee, the defendant knowing that the claimant was in the United States of America deliberately waited and served the invitation on the claimant at about 10:06pm on the 24th of November, 2015 barely 48 hours before the sitting of the Committee. He argued that this is contrary to the provision of section 36 (1) of the 1999 Constitution as amended and therefore a breach of the constitutional right of the claimant to fair hearing.
[32] Learned counsel argued that this investigation committee constituted by the defendant was pursuant to the provision of Section 14(3) of the Computer Professionals (Registration Council of Nigeria) Act, CAP C22, LFN 2004 and therefore the proceedings of the committee ought to have complied with the mandatory provision of section 36(1) of the 1999 constitution of the Federal Republic of Nigeria, as amended. It was his submission that there is no evidence before the court to show that the Disciplinary Committee set up to consider the report of the Investigation Committee sat and issued a report for or against the Claimant before he was dismissed from service. He cited Odigie v. Nig Paper Mills Ltd (1993) 8 NWLR (Pt. 311) Pg. 338 at 351-352 and referred to Section 14 (3) of the Computer Professionals (Registration Council of Nigeria) Act, CAP C22, LFN 2004 provides thus:
(3) There shall be a body, to be known as the Computer Professionals Investigating Panel (in this Act referred to as "the Investigating Panel") which shall be charged with the duty of-
(a) conducting a preliminary investigation into any case where it is alleged that a person registered has misbehaved in his capacity as a registered member or should for any other reason be the subject of proceedings before the disciplinary committee;
(b) deciding whether the case should be referred to the disciplinary committee.
[33] He submitted that from the forgoing provisions of the Act the duty of the Investigating Panel/Committee is simply to investigate an allegation, assemble the evidence and reach a conclusion on whether such evidence shows prima facie case so as to justify the recommendation of the case to the Disciplinary Committee/tribunal, which has the duty of actually conducting the trial of the case. He cited Adeniyi v Governing Council Of Yaba Technology (1993) LPELR-128 (SC), M.D.P.D.T. v Okonkwo (2001)7 Nwlr (Pt 711) 206, Denloye v Medical And Dental Practitioners Disciplinary Tribunal (1968)1 All NLR 306, Baba v Nigeria Civil Aviation Training Centre (1991) LPELR- 692 (SC), Tionsha v J.S.C. Benue State (1997) 6 NWLR (Pt. 507) 307 at 323, citing Oloruntoba-Oju v Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 @ 145. He submitted that the use of the word shall in section 14 (4) makes it compulsory for the membership of the investigating committee to be set up by the Defendant to be 5 members citing Lingo (Nig) Ltd v Artco Ind. Ltd (2020) LPELR-51744. That defendant constituted only a 3-member Investigation Committee which also renders the report of the committee incompetent, null, void and of no effect whatsoever.
[34] He submitted that the principles of natural justice and fair hearing are applicable in all cases in which a decision is to be taken in any matter whether in a judicial, quasi-judicial or even purely administrative proceedings involving a person’s interest, rights and privileges, personal or proprietary. He cited Orugbo Vs Una (1997) 8 NWLR (Pt. 516) 255 @ 274, Garba v University Of Maiduguri, Esiaga Vs University Of Calabar (2004) 7 NWLR (Pt. 872) 366 and argued that the defendant has not followed the due process of the stipulated in the Public Service Rules (PSR) in the dismissal of the claimant as required by the provision of Section 3 of PSR and precisely Rules 030307(i) (v) (vi) & (vii) of the PSR. He argued that the anomalies and flagrant disregard to the hallowed principle of fair hearing by the defendant which led to the dismissal of the claimant leads to the irrefutable conclusion that his dismissal is contrary to the provisions of Public Service Rules and the Constitution of the Federal Republic of Nigeria 1999, unlawful, null, void and of no effect.
[35] Learned counsel submitted that the facts and circumstances in all the authorities cited by the learned Senior Advocate in support of his arguments are quite distinguishable from the facts and circumstances of the claimant’s case. He submitted that the claimant has discharged the burden placed on him by the provision of Section 131 (1) of the Evidence Act, 2011 to prove his assertion that he was wrongly dismissed by the defendant, and that he has placed before the court his employment letter and conditions of service .
[36] On issue 2, learned counsel submitted that the claimant on preponderance of evidence and balance of probability, has been able to establish his case before this court and for that reason he is entitled to all his claims in this suit. He submitted that the claimant is entitled to be reinstated by having proved that he was unlawfully dismissed citing Omidiora v. FCSC (2007) 14 NWLR (Pt. 1053) 17 at 33. On issue 3, learned counsel submitted that it is clearly established that the defendant breached its legal duty to the claimant by unlawfully dismissing him and depriving him of his livelihood since 2015. He submitted that the claimant is entitled to damages citing Ativie vs Kablemetal (Nig) Ltd (2008) LPELR- 591(SC), Olughere v. P.P. & P Nig. Ltd. (2013) All FWLR (Pt 661) 1593 at 1616 Para. A. He submitted that that the defendant’s hands having been shown to be unclean and cannot benefit from the decision of this court with regards to their counter claim. He urged the court to dismiss the counter claim as it has failed.
[37] Replying on point of law, learned senior counsel submitted that the misconduct referred to in Section 14, CPN Act has nothing to do with the claimant’s claims. He submitted that the defendant is a professional body in the same league as the NBA, ICAN,ARCON referring to Section 1 and 2 of the Act. He submitted that the misconduct referred to in Section 14 of the CPN Act refers to the discipline of members of the profession acting in their professional capacity as members of profession; and is not intended to guide the employer employee relationship between the claimant and the defendant. He submitted that the claimant’s submission on damages failed to take cognizance of the law, that in claim for damages for alleged wrongful dismissal, the claimant was bound to minimize the damage he sustains by the alleged wrongful dismissal and such claims are not at large citing Ollivant, G.B (Nig) Ltd v Agbabiaka (1972) 2 S.C 137. He submitted that no claims for damages have been made out in the pleadings and evidence.
Decision
[38] I have carefully considered the processes filed, the evidence adduced, written submissions and authorities cited by the parties. The claims of the claimant are in the main declaratory. The burden of proof in establishing declaratory reliefs to the satisfaction of the Court is heavy in the sense that such declaratory reliefs are not granted even on admission of the defendant where the claimant fails to establish his entitlement to the declaration by his own evidence. In other words, a declaration of right sought by the claimant against the defendant cannot be made on admission, or in default of pleadings by the defendant. The claimant has to succeed on the strength of his own case only if the court is satisfied by evidence, and not on the weakness of the defendant’s case. See Dumez v Nwakhoba (2008) 18 NWLR (Pt 1119) 361 at 373-374, GE International Operations Nig Ltd v Q Oil & Gas Services Ltd [2016] 10 NWLR (Pt 1520) 304.
[39] The law is also settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the court the terms and conditions of his employment that provides for his rights and obligations; and the manner the said terms and conditions were breached. It is not for the employer who is the defendant to prove any of these issues. See Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 20, Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 6 Katto v Central Bank of Nigeria (1999) 5 SC (Pt II) 21, section 131(1) and (2) of the Evidence Act 2011. The documents relied upon by the claimant as his terms and conditions of employment in his pleadings are his offer of probationary appointment admitted as (exhibit C1), Personnel Policy/Staff Handbook, and the Public Service Rules. The claimant has not placed the Personnel Policy/Staff Handbook, and the Public Service Rules before the court. His letter of probationary appointment simply offers the claimant appointment as Administrative Manager, and states that other conditions of service will be worked out later.
[40] The evidence of the claimant is that the Personnel Policy/Staff Handbook was approved at the 49th regular meeting of the Council held on May 17, 2007. The minutes of the said meeting admitted as exhibit C11 is an unsigned document. The implication is that exhibit C11 is worthless, void and commands no probative value, see Brewtech Nigeria Ltd v Akinnawo [2016] LPELR 4009 CA, Gbadamosi v Biala & Ors (2014) LPELR 34389 CA. There are no averments/facts in the claimant’s pleadings in respect of the document admitted as exhibit C12 Computer Professionals (Registration Council of Nigeria) Staff Conditions of Service. This document was not pleaded. The law is that evidence without pleading goes to no issue. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129, which held that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. Furthermore, DW in cross-examination testified that it is not the defendant’s conditions of service and was not approved. Accordingly, exhibit C12 having been wrongly admitted is discountenanced.
[41] The two issues that therefore arise for determination are as follows :
1. Whether on the pleadings and evidence the claimant ought to be entitled to the reliefs he is seeking.
2. Whether the defendant/counter claimant has proved the counter-claim.
It is a settled principle of the Nigerian labour law that there are basically three types of employment namely; purely master-servant employment; employment held at the pleasure of the employer, and statutory employment. See the cases of Comptroller General of Customs v. Gusau [2017] LPELR- 42081(SC)30-31, Para F; CBN v. Igwillo [2007] LPELR-835 (SC)20, Para B and Longe v. FBN Plc [2010]6 NWLR (Pt 1189)1. The claimant has asserted that the defendant is a Federal Government establishment and the defendant has not denied this. The claimant has however not led any evidence as to the type of employment relationship he has with the defendant particularly as he has made a claim for reinstatement. All he has placed before the court is a probationary employment letter that is silent on this.
[42] The claimant asserts that in order to improve the quality of service to the defendant, he obtained an admission into a University in United States of America to pursue a Doctorate Degree in information Technology. That upon obtaining the admission by correspondence dated 15th May 2015 he wrote to the Chairman of the Council seeking for study leave with pay and the Chairman gave approval on the 3rd June, 2015. The defendant disputes this. The claimant has not referred the court to the provision in his terms and conditions of employment that gives him the right, and the qualification to go on study leave for two years with pay.
[43] The claimant has put in evidence exhibit C2 as the approval he obtained to proceed on study leave with pay. Now, this document is an internal memo the claimant wrote to the Chairman of Council on 15th May 2015 through the Registrar applying for 24 months study leave with pay. The first paragraph is reproduced thus: “This is to inform the Council that I have obtained an admission into a university in the United States of America to pursue a Doctorate degree in Information Technology”. The minute of the Registrar to the Chairman is on the document for “consideration and approval”. The Chairman’s minute back to the Registrar is: “approved on behalf of Council”. The claimant did not state or disclose the name of the University in the USA and the location; neither is there any documentation attached to the application. The claimant has not placed before the court the official letter from the defendant addressed to him approving his application for 24 months study leave with pay; neither did he place before the court his letter of admission into the University in the USA, or even the name of the University. It is common knowledge in employment administration and matters of study leave that there must be a formal letter of approval from the employer to the employee to proceed. The claimant who is a Director surely cannot expect the court to believe that he does not know that he requires a formal approval from his employer that must be documented.
[44] The claimant was granted approval to go on casual leave (exhibit IA2) effective Monday 17th –Friday 21st August 2015 and was expected to resume duty on 24th August 2015 but he failed to report for duty. He was sent a memo dated 28th August (exhibit D4) by the Head HR as follows: “The Registrar informed me that proper approval and notification has not been given for the leave of absence which you mentioned in the letter you sent to me. You are expected to resume after casual leave which expired on Monday 24th of August 2015 in order to perfect the documentation and proper approval.” The claimant was sent a letter on the authority of the Council (exhibit D3) dated 10th September 2015 informing him that he had not been granted study leave and directing him to return to his duties latest by Monday 14th September 2015. The claimant failed to resume for duty and he was issued a query (exhibits C4 & IA5) dated 21st October 2015 with the heading: “Request for Explanation On Proceeding On Two Years Study Leave Without Due Authorization”. The claimant responded on November 24, 2015 stating that the mail was received in his in box on November 10, 2015 and he did not read it until November 16, 2015; that he cannot reply through Mr Idowu Olusile as directed by the defendant.
[45] The claimant was then invited to appear before the Council’s investigative panel on Friday 27th November 2015 at 10am at the Council Secretariat. The claimant admits receiving the mail on 26th November 2015 and states that it was mischievous and malicious of the defendant to ask him to appear knowing that he was in the USA. The claimant did not honour the invitation, or respond by asking for more time to enable him appear since by his own evidence he was in the USA. Rather, the claimant asserts that the investigative panel was not constituted in accordance with the provisions of the defendant’s Personnel Policy/Staff Handbook and the Public Service Rules. The claimant’s conduct amounts to insubordination. These documents relied upon by the claimant are not in evidence. However, the minutes of the 75th Regular Council meeting of the defendant held on 9th October, 2015 (exhibit D2) is in evidence. At the meeting, an investigation committee was set up to investigate the claimant, and a disciplinary committee to consider the report of the investigation committee and advice Council on the matter.
[46] The defendant notified the claimant of the withdrawal of the official Toyota Camry car allotted to his office (exhibit IA3) and directed that it be returned Thursday 10th September, 2015. The letter was addressed and sent to his physical contact address at Bamgboye Street Ilasamaja Lagos. The claimant was again by letter dated 30th October reminded to return the vehicle on or before Wednesday 11th November 2015. The reminder letter was delivered to his physical address on 2nd November 2015 and was acknowledged by Mrs Ibrahim. A final notice of withdrawal of the vehicle dated 26th January 2016 was sent to the claimant’s address and receipt was acknowledged by Mrs Ibrahim on 31st January, 2016. The claimant admitted that the vehicle is attached to his office and that the letters were written to him while in the USA. He said he ignored the letters and kept the vehicle.
[47] The report of the investigation committee (exhibit D6) is before the court. The claimant failed to honour the invitation of the committee to appear. The committee found that the claimant did not support his application for study leave with documentary evidence; and when he was requested to do so he was unwilling and committed serious misconduct under chapter 3 of the -03040 of the Public Service Rules. The committee recommended that he appear before the disciplinary committee. Thereafter, the defendant dismissed the claimant from its employment by letter dated 23rd May 2016 (exhibit C10). The letter is reproduced as follows:
Dear Sir,
OFFICIAL NOTIFICATION OF YOUR DISMISSAL FROM THE SERVICES OF THE COUNCIL
At the 77th Regular meeting of the Council of the Computer Professionals (Registration Council of) Nigeria, (CPN), held in the Council Chambers in Lagos on Friday 20th May, 2016, Council discussed the recommendation of the Disciplinary Committee of Council on your matter and approved that you be dismissed from the services of the Council with immediate effect.
The decision was reached after an exhaustive and thorough deliberation on your case which started with the setting up of an investigative Committee whose report was forwarded to the Disciplinary Committee that later made their recommendation to Council.
I will like to put it on record here that you were duly invited by the Investigative Committee to defend yourself, but you decided to snob the committee and did not appear before it throughout the duration of the Committee’s sitting. Council viewed the behavior as an act of gross disrespect to the Council, your employer and by extension the Information Technology profession in Nigeria.
Endeavour to handover all the Council’s Properties in your possession, particularly the Toyota Camry Car attached to your office which you absconded with since August, 2015.
Professor Vincent Ele Asor FNCS
President/ Chairman of Council
[48] The claimant has alleged that the defendant did not give him a fair hearing before the decision to dismiss him from service as required by the Computer Professionals (Registration Council of Nigeria) Act and the Public Service Rules. I agree with learned senior counsel to the defendant that the misconduct referred to in Section 14(3) of the Computer Professionals (Registration Council of Nigeria) Act, CAP C22, LFN 2004 has nothing to do with the claimant’s claims. The misconduct referred to in Section 14(3) refers to the discipline of members of the profession acting in their professional capacity as members of profession; and is not intended to guide the employment relationship between the claimant and the defendant. The claimant never pleaded that the Computer Professionals (Registration Council of Nigeria) Act regulates his employment; neither did he place the terms and conditions regulating his employment before the court or prove them. Therefore, waving the flag of breach of fair hearing does not provide any saving grace as the issue of fair hearing or lack of it cannot hang in the air. See Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 20, Para 5, 23-24
[49] In any event, fair hearing is opportunity and there is an abundance of evidence that the claimant was given the opportunity to be heard severally. The defendant’s letter of dismissal to the claimant vividly captures this. The claimant was issued a query (exhibits C4 & D5) and he responded to the query (exhibit C6). He was invited to appear before the investigation committee (exhibit C7) and he failed to do so, neither did he even accord the Council a modicum of respect by responding to the mail. It is settled law that fair hearing audi alterem partem is satisfied once a party has been given the opportunity to be heard in respect of any matter or cause touching on, or affecting his interest, see INEC v. Musa (2003) 3 NWLR (Pt 806) 72, Aiyetan v. The Nigerian Institute of Oil Palm Research (1987) LPELR-275 (SC). The Supreme Court in the case of Imonikhe v Unity Bank Plc [2011] 4 SC (Pt 1) 104 at 135; [2011] 12 NWLR (Pt 1262) 624 at 640 has held that where an employer accuses an employee of misconduct by way of a query and the employee answers the query before the employer takes a decision on the employee’s appointment, that satisfies the requirement of fair hearing. The claimant was queried, and he responded. He refused to appear before the investigation committee, and he was dismissed. The claimant was given a fair hearing; I so hold.
[50] In Sule v Nigerian Cotton Board (1985) 6 SC (Reprint) 57 at 88-89 the Supreme Court per Obaseki JSC (of blessed memory) stated as follows:
When a servant grows too big to obey his master, the honourable cause open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be served with disobedience. Both the common law and statute law brook no disobedience of lawful order from any servant, high or low, big or small. Such conduct normally and usually attract the penalty of summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishment……….
Notwithstanding that the appellant’s employment had statutory flavour, the peculiar facts of the case completely deny to him the protection of those statutory provisions. His misconduct lies in the fact that by his assumed outlawry he could act with impunity.
[51] This is the exact scenario that has played out here in this case. The claimant has grown too big to obey the defendant his master and employer. There is an abundance of evidence before the court that the claimant abandoned his duty post, refused to return the Toyota Camry vehicle belonging to his employer thereby depriving the defendant of its use; and was quite audacious in disregarding the authority of his employer the defendant. His excuse being that the Acting Registrar/Secretary of Council Mr Idowu Olusile, despite being engaged by the Council of the defendant and under the Council’s instructions and directives had no authority to invite him to answer for his misdeeds. The claimant goes further to seek a declaration against the Acting Registrar as seen in the head of claim, number 3 even though he is not joined as a party to this suit! There is not a shadow of doubt in my mind that the claimant’s conduct amounts to insubordination to constituted authority. On the case law authorities, this is gross misconduct that by itself merits summary dismissal. The claimant behaved as if he was his own boss, accountable only to himself!
[52] On the whole, the claimant has failed to prove his case. I hold that the dismissal of the claimant by the defendant was proper and legal. The defendant is not in breach of the provisions of part V and Schedule II of the Computer Professionals (Registration Council of Nigeria) Act, the Public Service Rules, and fair hearing provisions of Section 36 of the 1999 Constitution (as amended).
[53] Consequently, and for all the reasons given, the declaratory reliefs (1,2,3,4) sought by the claimant must fail; and they are hereby refused. These having failed, the ancillary orders (5,6,7,8) predicated on the declarations also fail.
[54] The claimant’s case is hereby dismissed in its entirety. Costs in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) awarded the defendant.
[55] On the defendant’s counter claim, the claimant/defendant to the counter claim has admitted that the Toyota Camry vehicle with registration number CPN 04, property of the defendant is still with him even though he has no use for it in the USA. He admitted that the defendant wrote to him while he was in the USA to return the vehicle, but he ignored the letters and kept the vehicle. It is the law that facts admitted need no further proof, see Unity Bank Plc v Denclaf Ltd (2012) 18 NWLR (Pt 1332) 293 SC, Adusie v Adebayo (2012) 3NWLR (Pt 1288) 534 SC, Imoloame v WAEC (1992) 12 SC (Pt 1) 82. The defendant has proved the counter claim.
[56] The claimant/defendant to counter claim deliberately held on to the defendant/ counter claimant’s car since September 2015 and deprived it of its use till date. This is about 7 years now that the claimant has converted the defendant’s official car to his own private use. There can be no doubt that the defendant is entitled to an award of general damages for the unjust and unlawful retention of the defendant’s official vehicle pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006.
[57] I hereby make the following Orders:
1) The claimant/defendant to the counter claim is to pay the defendant/counter claimant the sum of N5 Million Naira (Five Million Naira) as general damages within 30 days. Thereafter, the sum will attract interest at the rate of 10% per annum.
2) The claimant/defendant to the counter claim is to return the defendant’s project car, Toyota Camry with plate number CPN 04 to the defendant immediately.
3) Costs in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) awarded the defendant/counter claimant.
Judgement is entered accordingly.
____________________________
Hon Justice O.A.Obaseki-Osaghae