IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON MONDAY 06TH DAY OF MARCH, 2023
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/ABJ/205/2016
BETWEEN:
TUKUR MU’AZU……….……………………………. CLAIMANT
AND
1. FEDERAL COLLEGE OF EDUCATION, ZARIA
2. PROVOST/ACTING PROVOST, FEDERAL DEFENDANTS
COLLEGE OF EDUCATION, ZARIA
3. REGISTRAR, FEDERAL COLLEGE OF
EDUCATION, ZARIA
J U D G E M E N T
In summary, the allegation of the Claimant against the Defendants is that the purported suspension and termination of his appointment as Assistant Lecturer of the 1st Defendant is unlawful, as same breached the principles of natural justice and violates the extant provisions of the Condition of Service of the 1st Defendant.
2. It is on the basis of these essential facts that the Claimant instituted the instant action, vide Complaint and Statement of Facts, filed in this Court on 07/06/2016, and by the operative Amended Statement of Facts filed with the leave of Court on 08/05/2017, whereby he claims against the Defendants jointly and severally as follows:
1. A Declaration that the suspension of the Claimant vide the 1st Defendant’s suspension letter dated the 4th of November, 2015 is illegal, wrongful, null and void and of no effect, the suspension being in breach of the Public Service Rules 2008, Defendants’ Disciplinary Procedure and Condition of Service.
2. A Declaration that the termination of the Claimant’s employment with the 1st Defendant vide a termination letter dated 12th April, 2016 is illegal, wrongful, null and void and of no effect, the termination being in breach of the Public Service Rules 2008, Defendants’ Disciplinary Procedure and Condition of Service.
3. A Declaration that the Claimant who is a permanent and pensionable Staff of the 1st Defendant is still in the service of the 1st Defendant.
4. A Declaration that the Claimant is entitled to the payment of outstanding salaries, allowances and benefits accruable to him from the date of the illegal suspension and termination up to the delivery of judgment and thereafter, continues to enjoy his regular salaries.
5. An Order directing the Defendants to immediately reinstate the Claimant to his position in the employment of the 1st Defendant and restoration of all rights, inclusive of all promotions due to the Claimant.
6. An Order directing the Defendants jointly and severally to pay the Claimant, the total sum of N872,492.04 (Eight Hundred and Seventy-Two Thousand, Four Hundred and Ninety-Two Naira, Four Kobo) only being his Seven (7) Months accumulated salaries from November, 2015 to May, 2016 and thereafter, the sum of N124,641.72 (One Hundred and Twenty-Four Thousand, Six Hundred and Forty-One Naira, Seventy-Two Kobo) monthly as his net monthly salary till judgment is entered and fully liquidated.
7. N25,000,000.00 (Twenty-Five Million Naira) as damages for the wrongful suspension and termination of the Claimant.
8. Cost of this suit put at the sum of N3,000,000.00 (Three Million Naira) only.
3. The Defendants denied the Claimant’s claims and joined issues with him thereupon, by filing a Statement of Defence on 23/10/2017. The Defendants maintained that the Claimant was granted fair hearing and that the disciplinary procedure as stipulated in the Condition of Service of the 1st Defendant and Public Service Rules was adopted for the suspension and termination of his appointment.
The Claimant’s Reply to the Defendants’ Statement of Defence was filed on 15/11/2017.
4. Both parties adduced evidence to support their claim and defence respectively. In proof of his case, the Claimant testified in person and called no other witness (es). He adopted his Statements on Oath and tendered twelve (12) documents in evidence. The Claimant was duly cross-examined by the Defendants’ learned counsel.
The Defendants, in turn fielded two witnesses namely, I. M. Bdliya, Head of Department of English Department of the 1st Defendant and Aliyu A. Galadima, a Deputy Registrar in the Central Administration of the 1st Defendant. The witnesses adopted their respective Statements on Oath as their respective evidence-in-chief and also tendered only one (1) document as exhibit. They were in turn cross-examined by the Claimant’s learned counsel.
5. Upon conclusion of plenary trial, parties were ordered to file their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court. However, learned counsel for the Defendants failed to file his written address and was foreclosed by virtue of Order 45 Rules 12 and 13 of this Court. Learned Claimant’s counsel, Nasir Saidu Esq., filed his written address on 30/09/2022, in which three issues were formulated for determination, namely:
1. Whether having regards to the oral and documentary evidence before this Honourable Court, the Defendants have proved that the Claimant was negligent in handling matters related to burglary of his office to warrant suspension and termination of the Claimant’s employment from service of the 1st Defendant.
2. Whether by the extant provisions of the 1st Defendant’s Staff Handbook, Exhibit D-D89, and Public Service Rules which provided for the disciplinary procedure, the Claimant’s suspension and termination was illegal, null and void.
3. Whether having regards to the provision of the 1st Defendant’s Condition of Service, Public Service Rules, the Claimant is denied fair hearing.
6. In the light of the reliefs claimed by the Claimant, the documentary evidence on record by both parties and the field of dispute between the parties, it is my view that the focal issues that have arisen for determination in this suit, without prejudice to the issues already formulated by learned Claimant’s counsel, can be succinctly framed as follows:
1. Whether the procedure for suspending and terminating the Claimant’s appointment as stipulated in the 1st Defendant’s Conditions of Service was followed by the Defendants in suspending and terminating his appointment?
2. Whether or not the Defendants observed the rules of fair hearing in terminating the Claimant’s appointment?
3. Upon resolution of issues (1) and (2), whether or not the Claimant lawfully established his entitlements to the reliefs claimed against the Defendants?
In proceeding to determine these issues, I should also state that I had carefully considered and taken due benefits of the totality of the final written address filed by learned Claimant’s counsel; and I shall make specific reference to the arguments canvassed as I deem necessary as I proceed with this judgment.
7. It is stating the obvious to affirm, from the onset, that from the evidence on record, the employment relationship between the Claimant and the 1st Defendant is regulated by statute. This is clearly seen in that the Defendants, by paragraph 1 of the Statement of Defence, positively admitted the averments in paragraphs 1, 2 and 3 of the Claimant’s Statement of Facts. The Claimant’s letter of offer of senior staff temporary appointment, letter of confirmation of appointment and notifications of promotion and the Condition of the 1st Defendant, October 1992 were respectively admitted as Exhibit A & A1, Exhibit A2, Exhibit A3, Exhibit A4 and Exhibit D – D98. These documents are to further establish that the employment of the Claimant is statutory employment which conferred him with a legal status higher than an ordinary matter/servant relationship. The effect of his employment status is that his employment could only be terminated in the way and manner prescribed by the statute establishing the 1st Defendant or the Public Service Rules 2008.
8. The testimony of the Claimant is that when he reported at his office on Monday 31st August, 2015, he discovered that his office had been burgled and that some documents, namely, the 2014/2015 1st Semester part time session examination scripts, CA, attendance, class list that belong to Zaria Consultancy Services Ltd were stolen.
According to the Claimant, another office located at the old lecture theatre of the 1st Defendant, earlier occupied by the Claimant and presently occupied by another lecturer, one Kamarudeen Madauchi, was also burgled and that a standing fan stolen therefrom was found at the 1st Defendant’s security office; that himself and the co-lecturer, reported the incident to the Chief Security and the Head of his Department and that he also wrote a formal report on 13/10/2015.
9. The Claimant testified that on 22/10/2015, he was invited to appear before an Investigative Committee on alleged case of missing scripts. The Claimant testified that the Committee was presided by the 3rd Defendant who also is the Registrar and the Secretary of Board of Directors of Zaria Consultancy Services Ltd, and further listed the names and designations of other members of the Investigative Committee. The Claimant contends that most of the members of the Investigative Committee are part time employees of Zaria Consultancy Services Ltd and further contends that the inclusion of his Head of his Department as member of the Investigative Committee is a clear violation of the Condition of Service of the 1st Defendant.
10. The Claimant further testified that after he appeared before the Investigative Committee, he was served with a suspension letter and contends that the suspension is a clear violation of 1st Defendant’s Condition of Service and Public Service Rules 2008. The Claimant’s further contention is that his suspension is over the three months’ period as prescribed by the 1st Defendant’s Condition of Service. Letter of invitation to appear before the Investigative Committee and Letter of suspension were respectively admitted as Exhibit A5 and Exhibit A6.
11. The Claimant also testified that he was issued with a letter of terminating his appointment on 12/04/2016; that the said letter of termination, bears the name of Dr. M. I. Maccido, as Provost, whose tenure had elapsed since March 2015; that the Management Committee and the Expanded Management Committee that purportedly recommended the termination of his appointment are unknown to the 1st Defendant Condition of Service and Public Service Rules and he alleged that he was not invited by the purported Management Committee or availed with a copy of the report of Investigating Committee to prepare his defence. The Claimant’s letter of termination of appointment was admitted in evidence as Exhibit A7.
12. The Claimant denied committing the alleged misconduct and contends
that fair hearing was not observed by the disciplinary procedure adopted by the Defendants that resulted to the termination of his appointment and
that the procedure was also in breach of the terms and conditions of his service as a permanent and pensionable staff of the 1st Defendant. He further contends that his unlawful suspension and termination of appointment by the Defendants has caused him irreparable damages as the Defendants have refused to reinstate him and/or pay all his salaries/ entitlements.
The correspondences relating to the Claimant’s appointment and promotion for part time staff and the certified true copy of judgement in the matter of application for enforcement of fundamental right of the Claimant in Suit No: FHC/KD/CS/32/2016 were admitted in evidence as Exhibit A8, Exhibit B and B1, Exhibit B2 and B3 and Exhibit C – C53 respectively.
13. Evidence on record, as adduced by the DW1 and DW2 is that sometimes in August 2015, the Claimant took the English 322 and GSE examination scripts for marking, collation and he was to submit to his Head of Department at a later but fixed date; that it was at the time for submission of the scripts that the Claimant told his Head of Department that the examination scripts were taken when his office was burgled; that he was advised by the Head of Department to report the incident; that the Provost directed the Registrar to investigate the case; that he was placed on suspension to enable proper investigation; that he was invited by the Investigative Committee and at the end of the investigation, the Committee made its findings and recommendations to the Expanded Management Committee that decided the termination of the Claimant’s appointment.
14. The Defendants witnesses further testified that at the time Committee made its report, the Governing Council of the 1st Defendant had been dissolved by the Federal Government and in such circumstances, the Minister of Education is empowered to constitute Expanded Management Committee that exercises the function of the Governing Council and the
Honourable Minister of Education approved the termination of the
Claimant’s appointment.
15. The Defendants’ witnesses maintained that the Defendants did not breach any rules of procedure, Condition of Service and Public Service Rules; that all persons relevant to the case, including security officers were interrogated before the Committee made its decision; that the Expanded Management Committee is not a trial Committee to afford the Claimant the opportunity of being heard the second time and the decision of the Defendants to terminate the Claimant’s appointment was to maintain standard in the higher institutions. In support of their defence, the 2015 Revised Conditions of Service for Federal Colleges of Education was tendered in evidence as Exhibit D1.
16. As I noted earlier, the Defendants’ learned counsel did not file his written address. It is borne by the records that having failed to file his written address within the stipulated period as prescribed by the Rules of this Honourable Court, there was no application by the Defendants praying for an order of Court enlarging the time within which to file his written address. Therefore, I do not think that the refusal and/or failure of the learned Defendants’ counsel to file his written address is fatal; whether counsel addresses the Court or not, the Court must still do its own research with the sole aim of dispensing justice.
17. It is settled and correctly submitted by learned Claimant’s counsel, that
a party challenging the termination or dismissal of his appointment must place in evidence, the Condition of Service and prove the breach of same. See the case of Dickson D. Bolou Vs Federal College of Education, Obudu & Anor [2019] LPELR 47465 cited by learned Claimant’s counsel. See also the cases of Oloruntoba - Oju Vs Abdul-Raheem [2009] All FWLR (Pt 497) 1 at 42; Imasuen Vs University of Benin [2011] All FWLR (Pt 572) 1791 at 1809.
18. In prove of the claim and defence, the contending parties tendered in evidence two different Conditions of Service; the Federal College of Education Condition of Service October 1992, was tendered by the Claimant as Exhibit D1- D98, whilst the 2015 Revised Conditions of Service for Colleges of Education, Exhibit D1 was tendered by the Defendants. The argument of learned Claimant’s counsel is that operative Condition of Service at the material time is Exhibit D1 - D98 and it is applicable to the instant case.
I had taken a cursory review of both Conditions of Service tendered in evidence by parties. Both documents were issued by the National Commission for Colleges of Education. However, Exhibit D1is the Conditions of Service for Colleges of Education revised in 2015. The commencement date of Exhibit D1 as stated in Chapter C, at page 2 thereof, is from 18/03/2015. The testimony of the Claimant is that his office was burgled on 31/08/2015 and was invited to appear before the Investigative Committee on 20/10/2015. Without further ado, it is clear that the operative Condition of Service applicable to the Claimant is Exhibit D1, the Revised Condition of Service. And I so hold.
19. Before I consider the merit of the case, permit me to remark on a point or two on the submissions made by learned Claimant’s counsel.
The first point is the contention of learned Claimant counsel that the decision of the Expanded Management Committee to terminate the Claimant’s appointment is void as the Expanded Management Committee is unknown and only the Council of the 1st Defendant has power to make a decision on the termination of the Claimant’s appointment. Learned counsel’s contention, albeit erroneous, was based on the premise, that Exhibit D – D98, regulates the terms and condition of the Claimant’s appointment.
As earlier held, the operative Condition of Service is Exhibit D1.
Chapter 5, Section 5.0.2 of Exhibit D1, provides that in the absence of the Council, the power to dismiss and exercise disciplinary control over officers in the service of the College, may be delegated to the Expanded Management Committee, subject to approval by the Honourable Minister of Education through the National Commission for Colleges of Education. By the said Section, the Governing Council shall delegate full disciplinary powers to the Management Committee in respect of officers on salary CONTEDISS 01 to 11/CONPCASS 01 to 05. The evidence on record of the last promotion of the Claimant was to Lecturer II on CONPCASS 03/02.
The submission of learned counsel that the decision of the Expanded Committee on the termination of the Claimant’s appointment is void because same was not made by the Council of the 1st Defendant is hereby discountenanced.
20. Learned counsel had also devoted his arguments that the Defendants did not prove both by oral and documentary evidence that the Claimant had sabotaged, damaged public property to warrant the suspension and termination of his appointment and further submitted that it behoves on the Defendants to establish by credible evidence before the Court the allegations levelled against the Claimant.
Learned counsel’s argument does not have the backing of law. It is not in principle for the employer who is a Defendant to an action brought by the employee to prove the wrongful termination of the Claimant’s appointment. See: Nigeria Gas Co Ltd Vs Dudusola [2005] 18 NWLR (Pt 957) 292; Morohunfola Vs Kwara Tech [1990] 4 NWLR (Pt 145) 506 SC; Adams Vs L.S.D.P.C. [2000] 5 NWLR (Pt 656) 291 at 316; Ikuma Vs Civil Service Commission, Benue State & Ors [2012] LPELR 8621. The argument is hereby discountenanced.
21. Now, the crux of the Claimant’s case and upon which the determination of his claims turns, is the mode or manner by which his appointment was terminated by the Defendants. The Claimant alleged that the procedure adopted by the Defendants for terminating his appointment was in breach of conditions of his service and the Public Service Rules (PSR). The alleged breaches of procedures according to the Claimant were stated as follows:
(a). That the Head of his Department was a member of the Investigative Committee;
(b). That he was not informed of all relevant evidence and statement adduced in support of allegations levelled against him;
(c). That his suspension was in clear violation of the condition of his service and the Public Service Rules and,
(d) That he was not invited by the purported Management Committee
to enable him defend himself;
22. It is settled that the way and manner prescribed for the termination or
dismissal of statutory employment such as the Claimant’s employment, must be religiously observed otherwise, such termination or dismissal has no effect whatsoever and the employee will be deemed as continuing in his employment. See Shitta - Bey Vs Federal Public Service Commission [1981] SC 40; Iderima Vs Rivers State Civil Service Commission [2005] 7SCNJ 493
23. As I earlier held, the Claimant’s employment is regulated by Exhibit D1. In the determination of this case, I find it necessary to refer to Section 5.5.5 (iii), Section 5.5.7 (i) and Section 5.5.8 (d) relevant to the case at hand. I have taken liberty to reproduce the said sections of Exhibit D1 as follows:
Section 5.5.5 (iii)
“ If it appears to the Council that there are reasons for believing that any staff of the College should be suspended on grounds of misconduct or of inability to perform the functions of his office, the Council shall -:
a) Cause a query to be given in writing to the staff concerned drawing his attention to the alleged misconduct or other default;
b) Set up an Investigating Committee to investigate and report on the matter, and,
c) The investigating Committee shall consist of three members of the Council and one each from Academic Board and the Congregation. The nominees of the Academic Board and Congregation shall not be lower than that of the staff concerned.
24. Section 5.5.7 (i)
“If the Council after considering the report of the Investigating Committee is satisfied that the officer, whose conduct is the subject matter of the investigation, ought to be suspended from office, the Council may by instrument in writing:
i. Suspend the staff.
Section 5.5.8
(d) Any person suspended pursuant to the regulations above, the Council shall restore the staff to his position at the expiration of three months after the date of such suspension.
It is also provided in Exhibit D1 that the Council shall consider the case against the person suspended and shall conclude the case in any of the following ways: (i) to continue with such person’s suspension, (ii) to reinstate such person, (iii) to terminate the appointment of the person in question or (iv) take lesser disciplinary action against such person.
I should also state that the Public Service Rules have similar provisions.
26. I must reiterate that the effect of the above provisions is that, the Claimant cannot be validly suspended or removed from employment unless the provisions as stated in the Condition of Service for suspending or removing him is followed strictly. For the suspension or termination to be unlawful, it must be proved that there was a departure from the prescribed procedure or that in applying the rules there was a violation of the rule of natural justice so as to render the formal compliance a travesty. See Olaniyan V University of Lagos [1985] 2 NWLR (Pt 9) 599; Okwusidi V Ladoke Akintola University [2012] All FWLR (Pt 632) 1774.
27. The Claimant’s grouse against the Defendants is that his suspension was
beyond the three months period stipulated by the Conditions of his service
and that his right to fair hearing was violated by the Defendants.
I had waded through the evidence on record, particularly, Exhibit A6 and
Exhibit A7, that is, the letter of suspension and the letter of termination of Claimant’s appointment. I should remark that it is in accord with judicial decision and business practice to suspend an officer being investigated from the place of work to permit unhindered investigation to be carried out and also to allow peace to reign at his place of work pending the final determination of his involvement in the accusation. The suspension must however, be in accordance with the guidelines, rules and law of the employer.
28. Now, it is clearly stated in Section 5.5.8 (d) reproduced above, that the Council shall restore any person suspended pursuant to the Regulation, at the expiration of three months after the date of such suspension. The Defendants’ witnesses testified that the Claimant was suspended to enable proper investigation into the allegation leveled against him. But then, the clear evidence on record is that the Claimant was on suspension from 04/11/2015 till 12/04/2016, a period of five (5) months before his appointment was terminated. The Defendants acted contrary to the clear provisions of the Conditions of Service, as set out in Exhibit D1, by failing to consider the Claimant’s case and make recommendation as to the appropriate action to be taken within three months of his purported suspension. I so hold.
29. The further submission of learned counsel for the Claimant is that the principle of fair hearing must be strictly observed by institutions established by law before any indictment could be made against its employee. Learned counsel placed reliance on the cases of Yesufu Garba
Vs University of Maiduguri [1986] 7 NWLR (Pt 78) 550; Gani Fawehinmi
Vs LPDC [1985] 7 NWLR (Pt 7) 300; Mrs. Okorie Gloria Vs Federal College of Education, Zaria & Ors [2014] LPELR 24010.
The Defendants contend that the rules of procedure or the College Condition of Service were not breached or the Claimant’s right to fair hearing violated. The Defendants maintained that the Expanded Management Committee is not a trial Committee for the Claimant to be heard and that the decision to terminate the appointment of the Claimant was to maintain standards of teacher training Institutions.
30. The settled or avowed position of the law concerning fair hearing was reiterated in the case of Chief J.L.E. Duke V Government of Cross-River State & Ors [2013] 8 NWLR (Pt 1356) at 366 where Galadima JSC stated:
"The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto".
The rules of natural justice alluded above is to ensure that a person shall not be denied opportunity of been heard before any matter affecting him is determined by any tribunal, be it administrative or panel or a Court.
31. The evidence of the Claimant in paragraphs 24, 32, 36 and 37 of his Statement of Facts is that he was not availed with the report of the Investigating Committee either before or after his suspension and that he was not invited by the purported Management Committee to enable him
defend to himself was uncontroverted before a recommendation for termination of his appointment was made to the Expanded Management Committee. The Defendants failed to tender in evidence the report of the Committee as stated in paragraph 26 of the Statement of Defence. It is therefore apparent from the evidence on record that the Defendants did not issue the Claimant with a query or furnish the Claimant with documentary evidence for his defence. The Claimant was also not given the opportunity to defend the allegations.
In the circumstances therefore, the termination of the Claimant from the appointment of the 1st Defendant, founded on non-compliance with the prescribed provisions of the Conditions of Service and violation of his right to fair hearing, is unlawful and cannot stand. The purported termination of the Claimant is hereby set aside. And I so hold.
32. It is trite that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once dismissal or termination of employment is declared null and void, there is nothing legally standing in the way of the employee from having his or her job back with its attendant rights, benefits and privileges. The same principles are fully applicable to the Claimant’s in this case. See Visitor, Imo State University & Ors Vs Prof Okonkwo & Ors 2014 LPELR; Kwara Polytechnic Ilorin Vs Oyebanji [2008] All FWLR (Pt 447) 141 at 199; Omidiora Vs Federal Civil Service Commission [2008] All FWLR (Pt 415) 1807;
33. The Claimant’s claim in paragraphs 46 and 49 (6)of his Statement of Facts for his accumulated salary for the period of his suspension from November 2015 – April 2016 and thereafter, his monthly salary at the rate of N124,641.72 (One Hundred and Twenty-Four Thousand, Six Hundred and Forty-One Naira, Seventy-Two Kobo till judgement, also succeeds.
34. Berthing the Court’s analysis of the totality of the material evidence adduced on record as demonstrated in the foregoing, therefore, I must resolve the issues set down for determination in this suit, in favour of the Claimant. In the overall analysis, standing on the solid position of the law, I hereby grant the Claimant the following reliefs:
1. It is hereby declared that the suspension of the Claimant by the 1st Defendant’s letter of suspension dated 04/11/2015 is unlawful, null and void and same is accordingly set aside.
2. It is further declared that the termination of the Claimant from service by the Defendants vide letter of termination dated 12/04/2016 is unlawful, null and void and of no effect and same is accordingly set aside
3. An Order of this Honourable Court reinstating the Claimant in the employment of the 1st Defendant.
4. An Order of this Honourable Court directing the Defendants to pay the total sum of N8,472,770.72 (Eight Million, Four Hundred and Seventy-Two Thousand, Seven Hundred and Seventy Naira, Seventy-Two Kobo) only to the Claimant represented as follows: (a) N623,208.60 (Six Hundred and Twenty-Three Thousand, Two Hundred and Eight Naira, Sixty Kobo) for accumulated salaries for the period the Claimant was on suspension by the Defendants at the monthly gross rate of N124,641.72 from 04/11/2015 to 12/04/2016; and
(b) the sum of N7,849,562.12 (Seven Million, Eight Hundred and Forty-Nine Thousand, Five Hundred and Sixty-Two Naira, Twelve Kobo) at a monthly salary of N124,641.72 from May 2016 till date.
5. It is hereby further ordered that the Defendants shall pay the sum set out in (4) above within thirty (30) days to the Claimant.
6. 10% interest is awarded on the judgement sum from the date of judgement until final liquidation of the judgement sum.
7. Parties shall bear their respective costs.
SINMISOLA O. ADENIYI
(Hon. Judge)
06/03/2023
Legal representation:
Nasir Saidu Esq., for Claimant
Yemi S. Adekunle Esq. for Defendants
