IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. AROWOSEGBE

 

DATE: TUESDAY MARCH 07, 2023                  SUIT NO. NICN/ABK/26/2019                 

BETWEEN:

 

MR. JONATHAN OSIBE....…................................................CLAIMANT

 

AND

 

1.     AKANU IBIAM FEDERAL POLYTECHNIC,

UNWANA, EBONYI STATE

2.     THE RECTOR, AKANU IBIAM FEDERAL

POLYTECHNIC, UNWANA, EBONYI STATE             DEFENDANTS

3.     THE GOVERNING COUNCIL, AKANU

IBIAM POLYTECHNIC, UNWANA, EBONYI

STATE

 

APPEARANCES:

1. N.E. NNAJI (MRS.) - FOR THE CLAIMANT.

2. AGHA EWA - FOR THE DEFENDANTS.

 

NOTA BENE: This suit was heard to conclusion at Abakaliki but only the judgment was delivered at Enugu.

JUDGMENT

INTRODUCTION

The claimant commenced this suit by way of Complaint and other accompanying processes filed 22/08/2019 and, asked for the following reliefs in the Statement of Facts [SF]:

1.  A DECLARATION OF COURT that the purported dismissal of claimant from his employment with the 1st defendant by the defendants vide the letter dated 16th May, 2019 is wrongful, null and void.

2.  An order reinstating the claimant to the service of the 1st defendant.

3.  An order mandating the 1st defendant to pay the claimant all benefits, salaries and entitlements in respect thereof due to him from the date of his purported dismissal till judgment is given.

4.  The sum of N10,000,000(Ten Million Naira) as general damages for wrongful dismissal.

 

The defendants reacted to the claimant's suit by way of Statement of Defence [SD] filed 21/11/19. The claimant replied via Claimant’s Reply to the Statement of Defence filed 12/12/2019 [RSD]. That is all about the pleadings filed relative to this case. The judgment proceeds to summary of the pleadings.

 

SUMMARIES OF THE PLEADINGS        

A. Claimant’s Case

The claimant pleaded he was employed by letter dated April 24, 1996, while his appointment was regularised by letter dated February 19, 1997 and, confirmed by letter dated February 25, 1999. He pleaded his promotion to Higher Technical Officer February 8, 2000 and that; he was granted Study Leave of two years thereafter and, promoted upon completion of the study December 14, 2005. He pleaded that; letter dated May 16, 2019 thereafter dismissed him. He pleaded he did not commit the offence alleged in the dismissal letter, as the White Paper on which it was based never dismissed him but only said, he stole money and that, in anyway, the White Paper itself was made without fair hearing and, he challenged it by a suit. He pleaded that; he did not infringe any provision of the Public Service Rules [PSR], as alleged in the dismissal letter. He pleaded too, that, his dismissal was contrary to the PSR, which regulated his appointment. He pleaded that, he never suppressed any fact as claimed and, was never issued a query. He completed the pleading by stating that, his dismissal was wrongful and made him entitled to the reliefs claimed. That ends the claimant’s SF. The judgment moves to summary of the SD.

 

 

 

B. Defendants’ Case

The defendants counterpleaded the claimant that, Abia State Government issued a White Paper in respect of the Ohaozara Local Government [Ohaozara LG], which indicted the claimant for fraud and directed that, the claimant be dismissed. They counterpleaded that, the claimant suppressed the information at his appointment, which made the defendants dismiss him when they eventually discovered and that, the defendants followed due process and fair hearing. The defendants counterpleaded that, the suit filed by the claimant against Governor of Abia State & Anor was declared statute barred by the Federal High Court [FHC] and transferred to the Abia State High Court on the ground of lack of jurisdiction over Local Government and that, the claimant also withdrew the other suit he filed on the same issue. They counterpleaded that, before the claimant’s dismissal, he wrote frivolous petitions against the defendants and, some of their officers. They finally counterpleaded that; the claimant is not entitled to the reliefs claimed. That ends the defendants SD. The judgment moves to summary of the claimant’s RSD.

 

C: Summary of the RSD

The claimant replied that, the White Paper did not direct that he be dismissed and that, it was replete with errors and never gazetted to have legal effect. The claimant replied too that, he was not bound to make a disclosure of findings made against his fundamental right to fair hearing and that, he was never dismissed from the employment of the Ohaozara LG to warrant such disclosure. He replied that, his suit was struck out and not dismissed. He replied too that, the petitions he wrote against the defendants and some of their staff were never frivolous, but truthful and that, he did these because of his duty as union leader, to ensure that the defendants governed with probity.  He replied further that, his dismissal was actuated by malice borne out of the need to stop him from exposing their shady practices. Thus ended the RSD. The judgment moves to the proceedings before the Court.

 

PROCEEDINGS AND EVIDENCE  

The matter came up first on 29/10/2019. It came up next 21/11/2019. On this date, the defendants’ application to regularise their pleadings was granted. The case was opened on 01/07/2022 with the claimant, who testified as CW1. CW1 adopted his Written Statement on Oath [WSO] of 22/08/2019, as evidence in this case. CW1 tendered 8 documents and, they were marked as Exhibits C1, C2, C3, C4, C5, C6, C7, and C8 respectively, while the last document on the List of Documents was not tendered, as the counsel to the claimant said, being an enactment, the Court must take judicial notice of it because, they had searched for it and could not get it. The matter thereafter went on Cross-Examination [XX].

Under XX, the CW1 said, he was a staff of Ohaozara LG from 1993 to 1994. He said, he heard about the penal set up by Abia State Government to investigate the operations of the Local Governments in the state. He said it is not true that, the panel found him guilty of stealing N500,000.00 and recommended that, he should be dismissed. He reiterated that, the panel did not find him guilty and that, he was never invited to be heard. He admitted instituting an action at the FHC but said, it was transferred and not declined and that, he transferred it to Abia State High Court, which said, it lacked jurisdiction and transferred it to Ebonyi State, where he wrote through his lawyer to Ebonyi State Government and Abia State Government respectively, they both repeated lack of jurisdiction over the White Paper. He said he didn't disclose the issue of the dismissal to the 1st defendant because, he didn't steal and was never dismissed from service and therefore, felt, there was no need disclosing what never existed in the first place. 

He said he was given a query captioned "Embezzlement, Fraud And Misappropriation Of Public Funds Culminating In Dismissal From Service Of Ohaozara Local Government And Fraudulently Obtaining Fresh Appointment In Akanu Ibiam Federal Polytechnic Uwana" but the said query was given out of place because, he has never done any embezzlement and misappropriation of any public funds. He said he appeared before the committee set up by the defendants to investigate the issue and he stated categorically before them that, he did not steal the N500,000.00 and that, he was never dismissed. The XX ended without re-examination. The claimant closed his case. The judgment moves to the defendants’ case.

The defence opened 30/09/2022 with DW1 (Kelechi Franklin Ugwu). DW1 adopted his WSO of 21/11/2019 as evidence in the case. DW1 tendered 4 documents. They were marked as Exhibits D1, D2, D3, and D4 respectively. DW1 was thereafter surrendered for XX.

Under XX, DW1 said, he has worked with the 1st defendant for 8 years plus. He agreed mentioning the White Paper, which is Exhibit C7 in his WSO. He said, he was familiar with the claimant to the extent of the place where the name Jonathan Osibe was mentioned. He said the White Paper is a government policy and its purpose, is to be gazetted after inquiry must have been concluded and that, he is sure it was gazetted. He admitted mentioning in his WSO that, investigation panel recommended the claimant’s dismissal. He said the claimant did not contest the indictment in the White Paper and, he was then given Exhibit C8 to read (paragraph 26 and 27), after reading it, he still maintained that, the claimant did not contest it. He said that the claimant was involved in writing false and frivolous petitions against the defendants and officers of the 1st defendant. He said he was told that, the claimant was the chairman of the Academic Staff Union of Polytechnic in the 1st defendant’s chapter shortly before his dismissal.

The XX came to an end without re-examination and, the case was adjourned for adoption of FWAs. It came up for adoption December 09, 2022. The defence counsel was absent without explanation despite Proof of Service at p. 248-249 of Process File. Having filed his FWA, the Court allowed the adoption to proceed as scheduled.

CHIDIKE NWUZOR, of counsel to the claimant proceeded to adopt the claimant’s FWA dated and filed 30/11/2022 and urged the Court to grant the claimant’s reliefs. The Court thereafter deemed the defendants FWA dated 21/10/2022 and filed 25/10/2022 as adopted, in accordance with the rules of this Court. Thereafter, the case was adjourned to 20/01/2023 for judgment. Judgment was not ready on this date and for that reason, it was adjourned off record sine die. When it became ready, date was ordered communicated to the erudite counsel to the parties. And as the Court sits only on Fridays in Abakaliki and, the judgment would lapse before the next Friday, which is 10th March 2023, it was fixed for judgment on Tuesday 7th March 2023 at Enugu and the counsel to the parties were informed accordingly. The judgment moves to summary of the theories of the case, as formulated by the respective counsel to the parties and argued in the FWAs franked for the respective parties.

 

SUMMARY OF THE THEORIES OF THE CASE

A:  Persuasion By The Defence Counsel

       EWA AGHA EWA franked the defendant’s FWA and submitted a lone issue for the determination of the case:

"Whether the dismissal of the claimant from service of the 1st Defendant was wrongful and unlawful." 

 

The learned counsel submitted that, it is a trite law that, where a contract of service enjoys statutory flavour, any termination of service done in a contrary manner renders such termination void and cited Olufeagba v. Abduraheem (2009)18 NWLR (PT.1173). He cited S. 17(1) of the Federal Polytechnic (Amendment) Act 2019 [FPAA], which makes provisions for the removal and discipline of academic, administrative and technical staff of any federal polytechnic and that, the defendants acted within the confines of the law when they set up the Governing Council Committee [GCC] and that, there is no evidence that, the defendants breached the claimant's right to fair hearing or breached any of the elements of fair hearing and, cited Agbiti v. Nig. Army (2011) 45 NSCQR (Pt.1) 388 At 399 Ratio 14.

      The learned counsel submitted that, the procedure adopted by the GCC in the investigation of the claimant met the fair hearing requirements of the law as stated by the Supreme Court in Aiyetan v. Nigerian Institute For Oil Palm Research (1987) 3 NWLR 49 and Ebohon Vs. Attorney General Of Edo (1997) 5 NWLR 298. He submitted that, misconduct on the part of any employee, which is inconsistent with the fulfillment of the express or implied conditions of service may justify dismissal and cited Nigeria Bank Ltd Obevudiri (1986) 3 NWLR (Pt.29) 389 and Lake Chad Research Institute v. Mohammed (2005) 11 NWLR 1

The learned counsel submitted that, it is a trite law that, an employer can terminate on the principle that "it is he who hires that can fire". This has statutory backing by virtue of section 11(1)(b) of the Interpretation Act, which provides that, the right to employ also includes the right to remove, as well as to discipline and cited Ajayi v. Texaco (1987) 3 NWLR (Pt.62) 577. The learned counsel concluded that, the claimant has failed to prove that, his dismissal from service of 1st defendant was wrongful and unlawful and having established that, the dismissal of the claimant was in accordance with the relevant laws and as such, urged the court to dismiss the claims of the claimant.

 

B:  Counter-Persuasion By the Claimant's counsel

       CHIDIKE NWUZOR franked the claimant’s FWA and rendered a lone issue for the determination of the case, to wit: "Whether the claimant has proved his case to entitle him to the reliefs sought in this suit".

The learned counsel submitted that, the claimant has put before this Court material facts and credible evidence in proof of his case. He cited section 134 of the Evidence Act 2011 on the standard of proof in civil cases. He stated the conditions, which a claimant must prove in an action for wrongful termination of employment and cited Katto Vs. CBN (1999) 6 Nwlr (Pt.607) 390 At 405 and NNPC v. Olagbaju (2006) All FWLR (Pt. 1246) 246 at 285, Paras C-D. The learned counsel submitted that, the claimant has established, by credible evidence that, he is an employee of the 1st defendant and further submitted that, the terms and conditions of the claimant's employment with the 1st defendant are as spelt out in the PSR since he is a public servant. More so, an employment with a statutory flavour, its termination must be done in the manner stipulated by the statute, else, the termination will be null and cited NEPA v. Ango (2001) 15 NWLR (Pt.737) 627 At 631, Iderima v. R.S.C.S.C (2005) SC (Pt.111) 135 and Olaniyan v. University Of Lagos (1985) 2 NWLR (Pt.9) 599. He submitted that, the circumstances under which the claimant can be dismissed from the defendant's employ by virtue of the PSR is serious misconduct, which could be falsification of records, conviction for a criminal offence, dismissal from government service, a call to resign or retire therefrom and that none of the aforementioned circumstances exist to have led to his employment been terminated rather, the claimant's employment was terminated based on alleged embezzlement of funds contained in a White Paper (Exhibit C7).

     The learned Counsel submitted that, the Federal Polytechnic (Amendment) Act 2019 [FPAA], which the defendants' counsel argued in paragraph 5 of defendants’ address as a guide for the investigation and removal of the claimant from service is misleading, as the said Act could not have been the basis for the propriety of the defendants’ act, as it came into force on 18th June, 2019, whereas, the dismissal was in May 2019. The learned counsel urged the Court to resolve the issue in the claimant’s favour and that, from the evidence adduced, there is no basis whatsoever for dismissing the claimant. Erudite counsel submitted that, it is obvious that, the claimant’s dismissal was a vendetta hatched by the leaders of the 1st defendants to silent and punish the claimant for his strong condemnation of unscrupulous activities they were carrying out. The learned counsel concluded by saying, the claimant has successfully proved that his employment with the 1st defendant was wrongfully terminated and he is therefore entitled to the reliefs claimed. He finally urged the court to grant the reliefs claimed.

There was no Reply on Points of Law [RPL] filed by the defendants. I therefore proceed to give my decision. But before then, let me state, as is the tradition, that, I have painstakingly read all the cognate processes in the file and digested their contents, as could be seen in the summary above. I have also taken pains to check up some of the authorities cited and did further researches to freshen up my memory on the issues at stake. I am aware that, I did not summarise the WSOs of the witnesses from both sides. This is because, they are carbon copies of their pleadings, which I have earlier fully summarised above, together with the XXs.  Off to the decision I go.

 

COURT’S DECISION AND THE RATIONES DECIDENDI

I adopt the claimant’s lone issue to determine this case: "Whether the claimant has proved his case to entitle him to the reliefs sought?". In answering this issue, I shall first observe that, this case is essentially declaratory, which puts additional burden on the claimant to prove his case – see Oladimeji & Anor v. Ajayi (2012) LPELR-20408 (CA) 23, E-G.

Now, the first point really is that, the claimant made his case tangential to the PSR, except that, he also claimed lack of fair hearing against the process leading to the White Paper, which could be determined without reference to the PSR. Let it be stated with regard to the allegations of lack of fair hearing in the processes that led to the Whit Paper that, it is sheer waste of energy raising it here. The defendants did not issue the White Paper. Hence, any defect in the processes that led to the White Paper could not be attached to the defendants, who merely used the information therein as the basis of dismissing the claimant. If the claimant has any problem with the White Paper, he must sue those who issued it. As it is, the state of the White Paper is that, it was not challenged by the claimant because, there is no judgment tendered that showed, it was set aside. And those who issued the White Paper are not before this Court as defendants in this case. So, raising issues on the processes leading to the issuance of the White Paper is red herring of which this Court has no jurisdiction.

The issue of lack of fair hearing on the processes leading to the issuance of the White Paper is an entirely different cause of action for which the extant defendants could not be sued and could not answer. A court lacks jurisdiction to hear a case where the defendant is not brought to the Court – see Boye Industries Ltd & Anor v. Sowemimo & Anor (2021) LPELR-58510 (SC) 37-38, F. Those who issued the White Paper and can answer to the allegations of absence of fair hearing in the processes leading to it are not before this Court. Hence, the claimant cannot start raising an issue for which the current defendants are not responsible and are not in a position to answer and which has no bearing on their actions. As it is, the claimant has accepted the White Paper as the true representation of what happened. The only thing to examine in the instant case is: whether the extant defendants dismissed the claimant on the allegations in the White Paper and did so correctly? I dismiss the issues of absence of fair hearing in the processes leading to the issuance of the White Paper as irrelevant, stale and academic – Okoye v. Tobechukwu (2016) LPELR-41508 (CA) 23-24, E-B. It is not meant for this Court to answer.

The only issue about the White Paper that is still alive is the issue that because, it was not gazetted it had no legal effect. In Dike & Ors v. Government of Imo State & Anor (2012) LPELR-20868 (CA) 32, D-G, the Court of Appeal held that: “Gazetting of enactments or laws has no place in the law making process and therefore not a condition precedent to its validity.” Gazetting of White Paper is not a condition precedent for its validity but, its publication is – Tao and Sons Industries Ltd v. Governor of Oyo State & Anor (2010) LPELR-5002 (CA) 17, A-D:

“In the normal course of governance, the government, be it Federal, State, Local manifests its acceptance of a report or inquiry by way of publication of white paper which tells the world the reaction of government to the inquiry….”

 

Thus, it is clear that, it is not publication through gazette that matters but publication of a White Paper, which could be through other means like public presentation or announcement of it or its release to the public; and the release to the public is not in doubt since, the claimant exhibited a CTC copy, which shows it is generally available to the public. I have searched and could not find where any authority held that, it is compulsory for White Paper to be gazetted for it to be valid and, the claimant’s erudite counsel did not cite any. He even abandoned the issue in his address. Thus, the issue of gazetting a White Paper for it to have validity is misconceived and accordingly dismissed. In that event, the White Paper is valid and the Court must take cognisance of it. I have therefore checked the White Paper [Exhibit C7] and found at p. 27, para. 99.3: “That Mr Jonathan A. Osibe, Assistant Technical Officer, Grade Level 06, stole the sum of N500,000.00. This has not been recovered.” At p. 28, at para. 100.3 I found too: “The Local Government should recover the financial loss sustained through Mr Jonathan A. Osibe, he should be dismissed, after recovery of the loss.” Further on the same page at para. 101, it was stated that:

“Comments – Government accepts the recommendations in paragraphs 100.1 to 100.6. above and directs the Local Government Service Commission to dismiss Messrs P.O. Uche and Jonathan A. Osibe from Service, Government further directs the Local Government…[not clear from that point].”

 

The Panel findings were reflected at p. 27, while p. 28 contained the recommendations and Abia State Government’s acceptance of the recommendations. Now, the crux of the matter is about being dismissed or not. The claimant tendered the White Paper and admitted that, these facts reproduced above were there but said he did not commit the offences and was not given fair hearing. It is true that the White Paper directed the claimant’s dismissal and, did not by itself dismiss the claimant. The facts contained in paras. (2)(iii)-(v) of the dismissal letter [Exhibit C6] however claimed that the claimant was dismissed from the service of the Ohaozara LG because, Government found him guilty of stealing and fraud, by which reason, he was not qualified for another government employment. Going by these paragraphs, construed along with the contents of the White paper earlier reproduced above, the claimant was not dismissed and no evidence of his dismissal was produced. That ought to be the end of the judgment, but there is paragraph 2(vi), which says another reason for the claimant’s present dismissal, is that, he suppressed the information in paragraphs (ii) & (iii). That is: he did not say he was indicted for fraud and theft by the White Paper [2(ii)] and did not also say, he was accordingly dismissed [2(iii)].

In effect, the defendants accused the claimant of two offences: suppression of the information about the theft and fraud and suppression of the information about a previous dismissal. The defendants went further in paragraph 3 to say that, by reason of paragraph (2)(iv), which says the two offences were based on the White Paper, which the claimant refused to divulge before he secured employment with the defendants, he contravened the provisions of the PSR 020206(a) & 030402(a). From the foregoing, it is clear that the claimant was charged with two grounds of suppression of information. The first is that, he did not reveal his indictment for theft and fraud and, the second is that, he also failed to reveal his previous dismissal. The Court has found that, the documentary evidence does not support the second. That is the claimant was not dismissed in Exhibit C7 [White Paper].

The White Paper only contained a directive to the Local Government Service Commission to dismiss the claimant, which the defendants failed to prove it carried out. But I noticed that the claimant pleaded in paragraphs 15 of the SF and 9 of the RSD that, he was never asked to resign or retire from service. I wonder what the difference is, between being asked to resign and, being directed, to be dismissed, as a result of indictment of fraud and theft? In my view, the directive of the White Paper that, the claimant be dismissed from service, is greater than being asked to resign or retire so that, being asked to retire or resign is within the worse scenario of being of directed to be dismissed. In effect, the claimant, who by inference, knew he was supposed to disclose information about being asked to resign or retire cannot, in all honesty, claim he did not know that, he was supposed to divulge information about being asked, to be dismissed. It means the claimant was aware that, he could be dismissed on the basis of prior indictment of being asked to resign or retire, if he failed to disclose it, before securing another government employment. And having failed to disclose that, the White Paper asked that, he be dismissed, which was greater than to be asked to resign or retire, and which is of kindred nature but worse, he knew he ought to disclose being directed to be dismissed, and was thus, guilty of non-disclosure; and was therefore, rightly dismissed for failing to disclose that, the White Paper directed his dismissal.

The international best practices in this area of the law is encapsulated in two incisive articles by Addleshaw Goddard, “Employee’s Failure To Disclose Material Information To Their Employer Justified Summary Dismissal” at https://www.addleshawgoddard.com [August 11, 22] and Jacques van Wyk et el, “An employee’s duty to disclose information when applying for employment”, Werksmans Attorneys at https://.www.werksmans.com [August 11, 22]. The first relates to the British practice, while the other relates to the practice in Zimbabwe. Both examined topical cases in the two jurisdictions. The concomitance of the authorities is that, once the duty to disclose is made part of the conditions precedent to employment, failure to disclose is tantamount to contractual misconduct and fatal to the employment. 

Be that as it may, lets make progress. But with regard to failure to divulge that he was indicted, the evidence is glaring that, he was indicted as charged and, he [the claimant] deftly ignored that aspect of the case and concentrated all his efforts on the fact that, he was not dismissed. We should remember that, the case before the Court is not whether the claimant actually committed the offences in the White Paper, but that he failed to reveal the indictments for the offences while securing employment with the defendants. The claimant had impliedly admitted that he did not reveal the indictments for fraud and theft because, he had said he was not obliged to say he was dismissed since he was never dismissed by the White Paper and ignored to say, whether he was not obliged to reveal that he was indicted. Impliedly, he admitted non-disclosure of the indictments.

Now, we should realise too that, the claimant did not raise any allegation of fair hearing against the present defendants but only that, the rules they cited for his dismissal did not support it because, the White Paper never dismissed him. Recollect that, the judgment has shown before now that, the claimant was dismissed, in the current instance, on two grounds of suppression of information: 1: suppression of the fact of indictment for theft and fraud, 2: suppression of the fact of dismissal. The defendants quoted two rules in the dismissal letter under which they charged and dismissed the claimant with the offences in issue. With the finding that, the claimant did not defend the issue of suppressing the information that, the White Paper indicted him for fraud and theft, but only that, he was not dismissed; the implication is admission of the offence of non-disclosure of the indictment for theft and fraud. It means, he did not contest that. It equally means that, one of the two PSR rules cited supported the offence and the punishment of dismissal for the offence. Arising from this, the claimant failed to prove his case and was accordingly rightly dismissed on the second count.

We should not forget that, this is a declaratory action for which the claimant’s case must succeed on its own strength and not on the weakness of the defence. What happens in such cases is that, the courts first looks at the evidence of the claimant and see if it proves what he brought to court, if not, the court dismisses the case at that point, but if, the burden of proof on the claimant is at that point discharged and shifts to the defendants. The court would not proceed to examine the defence. The claimant has failed to discharge his burden of proof. The case ought to be dismissed at this point.

But for the sake of completeness: what is even the law on proof of wrongful termination? The judgment would examine this to see if the claimant satisfied the requirements of the law. The claimant pleaded in paragraph 15 & 17 of his SF thus:

15. The claimant avers that the allegation in the letter purportedly dismissing him from service of the 1st defendant that he infringed certain provisions of the Public Service Rules (2010) is false and unfounded. The claimant will contend in the course of trial that he did not infringe any of the provisions being that he never falsified records neither has he ever been convicted of a criminal offence, dismissed from Government service or called upon to resign or retire there from. The Public Service Rules regulate issues, inter alia, regarding employment, disciplining and dismissal of members of staff of polytechnics across Nigeria including the 1st defendant. A copy of same is hereby pleaded and notice to produce the original is hereby given to the defendants.

17. The claimant avers that all through the period prior to his purported dismissal, he discharged his duties scrupulously, honestly and diligently and has never been indicted or issued a query.”  

 

These are the focal paragraphs of the SF and they raised squarely the issues that the defendants did not comply with the PSR in the dismissal of the claimant. Paragraphs 1 & 4 of the dismissal letter are pertinent:

“1. This is further to the Report of the Joint Council/Academic Board Committee to investigate the petition on the case of Stealing, Fraud, Embezzlement of Public Funds, Unjust Enrichment and Obtaining Employment by Fraud preferred against you.

4. It was noted that you were given an opportunity to make representation to the Joint Council/Academic Board Committee on the matter.”

 

By the above paragraphs of the dismissal letter, it is clear that, issues were joined on the issue of compliance with the necessary conditions of service. Back to the question: what is the law on wrongful termination? And, in going further on this, this judgment cites the authority of the Court of Appeal in Ikuma v. Civil Service Commission Benue State & Ors (2012) LPELR-8621 (CA) 18-19, 23-24:

“The appellant seeks herein, for the Court to vitiate his dismissal on the grounds of non-compliance with the provisions of Sections 167(i) (iii) and (iv) as well as Section 191(1) of the Benue State Civil Service Rules. Where a plaintiff is seeking a declaration that his dismissal from Service is and therefore a nullity for non-compliance with the Civil Service Rules, he must plead and prove his appointment, as well as the conditions of Service contained therein which constitute the basis for the foundation of his action. It is not in doubt that there is in existence Benue State Civil Service Rules. But for the Appellant to have benefit of the said rules, he must not only plead his appointment but also the terms or conditions of Service contained therein. It is the principle of law that in action for declaration that dismissal is null and void, as in this case, the plaintiff must plead and prove the terms and conditions of appointment… Where the pleadings and evidence of the plaintiff fall short of the standard set out above it is fatal to the plaintiff’s case…

No effort howbeit unsuccessful was made by the Appellant to prove the application of Benue State Civil service Rules to him. The Appellant merely swam in the ocean of the presumption that being employed by the Respondents, the Court would without any evidence placed before it join him in speculations. Not only that, the Court has no jurisdiction to conjecture or surmise as a Court of law must circumscribe itself to evidence before it and give judgment on the evidence alone… Adequate facts to establish that the Appellant was subject to Benue State Civil Service Rules were necessity bound to be placed before the Court. This is inescapable since the Court is forbidden to infer the nature or rules of service that govern the appellant’s employment. It requires evidential proof.”

This position of the law, as espoused above, has been reiterated in a long line of cases. Let me just cite one more: Suleiman v. Civil Service Commission of Ondo State & Ors (2015) LPELR-41796 (CA) 21-22, A wherein the Court of Appeal said:

“Now, an avalanche to the cases abounds that in a case of wrongful dismissal, it is important to plead the contract of employment, i.e. the terms of employment which is the foundation of the action and not to leave the fact of the existence of the contract and its terms to speculation by the Respondents and trial Judge. Without the contract and its particulars being pleaded by the Appellant, no evidence of the terms of the contract which have been breached would be admissible at trial and this will be fatal to the actions since it lacks foundation. Furthermore, the onus of placing before the Court this terms [sic] of the contract of employment and to prove in what manner the terms were breached by the employer lies squarely on the shoulder of complainant as in this case…”

 

Though, I take full cognisance that this case is about employment garnished with statutory flavours by virtue of the inelegant pleadings at paragraph 15 of the SF and by that, it might not be necessary to plead word-for-word the contents of the rules allegedly breached but at least the paraphrase ought to be pleaded so that, it would be easy for the Court to see where the non-compliance is. The PSR, which the claimant relied upon, contains the terms and conditions of service, which were supposed to be pleaded and attention drawn to which of these rules was breached and in what manner. That is what is expected of a claimant. This becomes more significant in the claimant’s case wherein, the defendants have clearly stated the rules under which the claimant was charged, tried and dismissed, which makes it easy for the claimant to point out, the parts of the rules the defendants failed to comply with.

In paragraph 17 of the SF, the claimant merely said he had never been indicted or issued query and stopped just like that. He did not say that, he was not issued query for the offences for which he was dismissed or that, the defendants did not satisfy fair hearing. He did not tell the Court what the rules prescribed with regard to fair hearing since, it is not only by query that the requirements of fair hearing are met. This is even, when all along; the claimant had been with the dismissal letter, which stated categorically at paragraph 4 that, the claimant was given opportunity to make representation to the Joint Council/Academic Board Committee. He did not make an iota of reply to the weighty statement.

Arising from the above, it is clear that the claimant failed to prove his case as required by law. The law is that, notwithstanding that, an employment has statutory flavour, when you are challenging unlawful termination, you must plead the conditions or terms of the contract [The PSR Rules] that were allegedly breached and in what manner they were breached, to succeed. This, the claimant has failed woefully to do here and thus, woefully failed to prove his case. At no point did he say specifically what exactly the defendants did in his dismissal that was not in accordance with the rules of engagement. It is as if he is dodging something unfavourable to him in the rules because, the defendants actually cited the rules under which they acted. Why would the claimant and his counsel fail to let the Court know what these rules say exactly and how the defendants breached them? Only they can tell.  

To make matters worse, at the trial on July 1, 2022, during the examination-in-chief of the claimant when the claimant finished tendering his documents and his evidence-in-chief was rounded up, the following transpired between the erudite claimant’s counsel and the Court:

“Court: What about the document listed as No. 9 on the List of Documents?

Nwuzor: It is an enactment. It is not necessary to tender. [sic] The Court must take judicial notice of it. We searched for it and did not get it.”

 

The document, which the Court specifically asked the claimant and his counsel about was the PSR 2010, which the claimant listed on the List of Documents filed along with this suit, which is at page 24 of the Process File. While it is correct that, the PSR is a subsidiary legislation, which the Evidence Act tells the Court to take cognisance of, taking judicial notice of a subsidiary legislation is different from having access to it. This particular document is not in one of the volumes of the laws of the federation that, one would expect that, the judge must have it in his library. Yes, I took judicial notice of it in accordance with the authority of Speaker Kaduna State House of Assembly & Ors v. Nkom & Anor (2019) LPELR-50961 (CA) 14-15, A-C, but I have no copy of it and, for that reason, have asked the party who relied on it for a copy and, the answer I got was the rude retort by his counsel that, I must take judicial notice of it, which by the reasoning of the erudite counsel, I must look for it by all possible means! I know that, it is the practice in law that, courts ask for a law or statute they do not have access to from counsel that want to make use of them and they produce them to the courts without hassles. If the claimant and his counsel did not produce the PSR and said, they searched for it and could not get it, where did they expect me, as a judge, without any interest in the matter, to get it?

All the times the different versions of the PSR have been relied on before me, as a judge, I have always asked, the few times they were not produced, either as exhibit or from the Bar, that they be produced and, the parties and their counsel have always obliged me without being rude. That is the practice I met while in practice as a lawyer and, it is still the practice. It a practice dictated by common sense and logic. If the counsel and his client could not get a document they rely on, be it a statute or subsidiary legislation, as in this case, and I have asked for it and, they told me to go get it at all cost because, I must take judicial notice of it and, I have not had access to it, the law is that, I cannot speculate on a document that is not in my possession, whether or not, it is statute – see Addo v. State (2020) LPELR-55521 (SC) 28, A and Ikenta Best (Nigeria) Ltd v. AG of Rivers State (2006) LPELR-1476 (SC) 51, D. The law is that, where a court request for a subsidiary legislation from a counsel and, he refused to produce it, the court can decline to take the necessary notice of the contents that are not before it, even though, he takes judicial notice of the existence of the subsidiary legislation. I think the ratio of the Court of Appeal in Ansa & Ors v. UAC Plc & Anor (2014) LPELR-23522 (CA) 24-25, F –A is useful in this instance and I quote:

“Judicial notice does not and cannot require a Court to go in search of the fact to be judicially noticed. If that were the case it will be almost impossible of achieving. How, for instance, will a Court be expected to go in search of the Judgment of a Court in say Ghana or Australia which I am also enjoined to take Judicial notice of, No. The Judgment of the relevant Court has to be brought into Court by this party seeking to rely on it to be judicially noticed”

 

I think it is because of situations like the above that, S. 122(4) of the Evidence Act comes handy. A court may be called upon to take judicial notice of a fact, which includes statutes and subsidiary legislations, yet, it may not have access to the very document and, since it cannot speculate, it must ask the person who proposed it for his case, to bring it forth. And when he brings it, it could be tendered from the Bar, if the case is still ongoing or, given to the court’s clerk, after the matter had been adjourned for judgment but before delivery of the judgment. Such statutory documents specifically requested by the courts enjoy those privileges because; they are documents the courts are obliged to take judicial notice. But until the documents are produced, the courts simply decline to take judicial notice of them, if they cannot lay their hands on them by other means. And this Court’s rationalisation is that, subsection (4) applies to both subsections (1)&(2) of S. S. 122 of the Evidence Act.

Where the court has access to such document, it consults it in the privacy of its chambers, as it is obliged to take judicial notice and apply the laws suo motu without being cited before it. But even at that, if it comes about or knows of a statute that it believes may be relevant to a case but does not have access to, it can and does ask the parties to supply it.  In fact, the logical inference of a counsel calling upon the court to take judicial notice of a document or statute is that, he himself is in possession of the document or statute and in a better position to furnish the court with a copy, where the court tells him; it does not have a copy of the said statute. Otherwise, how did he know that, such statute was relevant to his case, if he did not access and consult it? If he fails and the court could not lay its hands on the alleged statute, the legal inference arises that, it is either that the statute does not exist or the provisions cited did not favour the party, which is the reason he is refusing to tender it, even though his case is made on it – Ogbonna & Anor v. Ogbuji & Ors (2013) LPELR-21945 (CA) 23, A-D. The court held in the case that, failure to produce the full White Paper was tantamount to withholding of evidence. A White Paper is a document, which is judicially noticeable. If we go by the proposition of the claimant’s counsel here that I should go and look for the document, the court would have held in the foregoing case that, it was the duty of the trial judge to look for the White Paper.

Besides, in paragraph 15 of the SF, the claimant had given notice to the defendant to produce the original of the said PSR. If he gave notice to produce the original copy, it means he accepted he had a primary responsibility to produce a secondary copy, if not produced by the defendant – Kajo v. Benue Cement Company Plc (2013) LPELR-20788 (CA) 17-18, F-G. It means in effect, he had a copy of it. Secondly, it means, he did not even know that, the PSR was a subsidiary legislation. Thirdly, he did not know the distinction between private and public documents and how to obtain each of them. If he had known, he would not have given notice to produce original of a public document or subsidiary legislation. He would have known that, he ought to apply for the Certified True Copy [CTC] or purchase the subsidiary legislation from the government press or whatever – Aboaba v. Ogundipe (2017) LPELR-42922 (CA) 14, B-E.

You cannot issue notice to produce original of public documents. It is against public policy because, several people might need it at the same time and, it might get lost. It is for these reasons that the law designed the concept of CTC. You apply for CTC of it, if you need it in courts. All the faults itemised above are those of the claimant’s lawyer and, they are errors in the strategies adopted for the prosecution of the case, which the claimant must take both the benefits and disadvantages – Kambulam v. Duba (2022) LPELR-57202 (CA) 6-7, A-F. Therefore, the claimant failed too, to put before the Court the most vital document he needs to prove his case. It is therefore not even necessary for the Court to examine the defendants’ defence at any great length.

Arising from all that the court has said in this judgment to this juncture, it means the claimant failed woefully to prove the case he made out in his pleadings. Even issue of malice is afterthought because, claimant did not plead or give evidence that, he raised this at the earliest opportunity at the Panel that tried him for the misconducts for which the defendants charged and tried him – Chidebelu & Anor v. Probate Registrar High Court of Anambra State & Ors (2013) LPELR-21215 (CA) 23-24, D-A. It is also clear that, the pleadings in paragraph 12 of the RSD is clearly false as the White Paper was issued by Abia State Government and it clearly directed that, the claimant be dismissed by the Local Government Service Commission. So, the claimant was correctly dismissed.

In bid for further completeness, the judgment will proceed to even look at the defendants’ defence. The defendants tendered Exhibit D2 [Report of the GCC]. The claimant admitted under XX that the defendants queried him on the issue of the White Paper and that, he appeared before the GCC and told them he did not commit the offences related in the White Paper and more so, that, he was not given fair hearing. He did not dispute that; the allegations were in the White Paper. Remember that, the Court earlier held that, issue of absence of fair hearing before the White Paper indicted the claimant for theft and fraud and directed that, he be dismissed, are not issues that could be litigated in the extant dismissal, which is based purely on the non-disclosure of the indictments and the purported initial dismissal. Apart from these, the claimant has not produced any evidence that, the White Paper had been set aside. Hence, the contention of the DW1 under XX that the claimant was indicted and that, he did not challenge it stands tall and strong. To file a suit, which was struck out cannot amount to challenging the indictments. Only full judgment on the merits, which set aside the indictment amounts to challenging it. The claimant only made unsuccessful attempts to challenge it.

I have read Exhibit D2. I observed that the claimant raised the issue at the GCC that, he was not served with a copy of the petition against him but the Registrar clarified to him that, it was sufficient if the contents were conveyed to him in a query and that, this was done. The Registrar gave him the PSR and referred him to Rule 030411, which he said supported the procedure – see p. 3-4 of the Report of the GCC beginning at Jonathan Osibe. I cannot find that the claimant disputed this in his pleadings and WSO. This brings to the fore once again the claimant’s failure to plead how the defendants breached the rules of engagement and the failure to furnish the Court with the PSR, to enable the Court check the contents and see if they matched what the defendants attributed to them. In any case, I agree with the defendants that, it is not important that the claimant be given a copy of the petition but it is sufficient if the contents were digested and issued to him in a form of query. Provided the defendants did not go beyond the digests in the query, to which the employee answered, to punish him, he cannot complain that, the failure to give him the petition is fatal to the dismissal. In any case, he did not say which rule says he must be given.

I found in p. 5, para. (ix-x) of the Report of the GCC that, the claimant absconded from his former employment to avoid dismissal and concealed the indictment from the defendants when he got appointment with 1st defendant. I found too that the defendants cited Rule 020206(1) to the effect that, it makes it an offence to secure employment with the 1st defendant when there is indictment of dismissal or being asked to resign or retire hanging on him in a previous employment – see p. 5-6, para. (xii)(ii). This Court had earlier held that, the directive that the claimant be dismissed, being worse than being asked to resign or retire, incorporated being asked to resign and retire and as such, the claimant was under obligation and attached with the knowledge that he ought to divulge the indictments. These offences were classed as serious misconducts warranting dismissal – see p. 6, para. 6.1 of the Report of the GCC, in which PSR Rules 030401 & 030402 were cited. The claimant has not shown to the Court that these rules did not contain what the things that were attributed to them. The claimant was therefore, accordingly rightly dismissed.

I have also looked at the issue of the prior suspension connected with the same facts leading to the present dismissal, on which the FHC had decided that, the claimant could not stop investigation against him, still being on appeal at the Court of Appeal, Enugu – see p. 3, para. 4.2(11) and p. 5, para. 5.1(vii)-(viii) of the Report of the GCC. While I disagree with the PSR Rule 030411 cited to the effect that, while a case is in court on the same issue, the defendants can proceed to dismiss an employee, I however take cognisance of the peculiar nature of this case and found that, this issue of appeal or the existence of any case on the same issue is not really before the Court, as none of the parties raised it in their respective pleadings, though, contained in the Report of the GCC tendered by the defence. So, it is purely academic.

No one can say what has happened to the appeal in the interim that made the claimant not to raise its existence in his pleadings. This Court cannot speculate, as courts, just as much as the parties; are bound by the pleadings – Dada v. Dosumu (2006) LPELR-909 (SC) 17, C. Therefore, a court cannot raise issues not pleaded by the parties – Adimora v. Ajufo & Ors (1988) LPELR-182 (SC) 19, E-F. This is because of the rule of law that, any evidence at variance with pleadings goes to no issue, as a court cannot go outside the pleadings to determine the right of the parties by extraneous evidence unrelated to the pleadings, just because, such evidence is before it – Yahaya & Anor v. Dankwanbo & Ors (2016) LPELR-48364 (SC) 66, B-E. Arising from the foregoing, from whatever angle one looks at this case, it comes about that; the defendants rightly dismissed the claimant. Hence, the lone issue is resolved against the claimant and in favour of the defendants. The case must end now.

 

CONCLUSION

Having held that the lone issue is resolved against the claimant but in favour of the defendants, the case is liable to be dismissed as a fitting end to its life. The case is hereby accordingly dismissed.  I award no cost against the claimant.

Arising therefore, judgment is accordingly entered in this suit today, Tuesday the 7th day of March 2023 under my hand, being the presiding judge.

 

……………………………

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA