IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MINNA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 18th May 2023                                              SUIT NO: NICN/MN/08/2019

 

Between:

 

1.         Nehemiah Andrew

2.         Umar Aliyu                                                                                Claimants

 

And

 

1. The Governing Board (NECO)

2. The Registrar (NECO)                                                      Defendants

3. National Examinations Council (NECO)

 

Representation:

Nicholas T. Oduaran for the Claimants

J. G. Taidi for the Defendants

 

JUDGMENT

The Claimants instituted this action on 20th August 2019. In the 2nd amended statement of facts filed on 28th September 2021, the Claimants sought the following claims against the Defendants:

1.   A Declaration that the dismissal of the plaintiffs by the defendants without due process is unlawful, null and void ab initio and contrary to the NECO staff regulation and condition of service 2015 made pursuant to Section 11[1][2] of the NECO ACT 2002.

2.   A Declaration that the dismissal of the plaintiffs by the defendants without giving them any opportunity of being heard on grounds allegedly raised amounts to denial of fair hearing as guaranteed under section 36 of the CFRN 1999 as amended.

3.   A Declaration that the plaintiffs by virtue of the High Court Appellate Division judgment have been cleared and discharged of the alleged crime they were initially convicted of by the Chief Magistrate Court 2 Minna.

4.   A Declaration that the plaintiffs are entitled to their salaries and entitlements being staff of the defendants at all material times.

5.   A consequential order for the immediate reinstatement of the plaintiffs.

6.   A consequential order directing the defendants to pay the plaintiffs all their salaries and entitlements from the date of suspension till date.

7.   An Order directing the defendants to promote the plaintiffs to the level they ought to be.

8.   An Order directing the defendants to pay the 1st plaintiff the sum of N9,460,798.26 being arrears of his salaries for the period December 2012 to September 2021.

9.   An Order directing the defendants to pay the 1st plaintiff as salary the sum of N122,631.00 per month from October 2021 for CONRAISS 07 STEP 6 until judgment is delivered and he is reinstated.

10. An Order directing the defendants to pay the 2nd plaintiff the sum of N10,333,660.00 being arrears of his salaries for the period December 2012 to September 2021.

11. An Order directing the defendants to pay the 2nd plaintiff as salary the sum of N126,177.00 per month from October 2021 for CONRAISS 07 STEP 7 until judgment is delivered and he is reinstated.

12. Cost of this action covering solicitors fees of N1,000,000.

13. An Order for the sum of N2,000,000 as general and punitive damages against the defendants for wrongful dismissal of the plaintiffs.

14. An Order for 10% interest on the whole judgment sum until same is fully liquidated.

 

In proof of the claims, both Claimants testified in the suit. The 2nd Claimant testified as CW1 while the 1st Claimant testified as CW2. The evidence of both Claimants are the same and in line with the facts pleaded in the 2nd amended statement of facts. The case of the Claimants is as follows:

 

CLAIMANTS’ CASE

The 1st Claimant was employed by the Defendants as a Computer Operator IV vide a letter of employment dated 3rd February 2000. His employment was confirmed in a letter dated 7th November 2007 on grade HATISS 02 STEP 3 and his basic salary was the sum of N67,443.00 per annum. The 1st Claimant was promoted to the rank of Computer Operator I on CONTISS 05 STEP 1 with effect from 1st January 2010 vide a letter dated 24th November 2010. The 2nd Claimant was employed by the Defendants as a Cleaner on grade level EUSS 01 STEP 1 vide a letter dated 3rd May 1995. His employment was confirmed in a letter dated 19th April 2000 as Head Messenger/Cleaner on grade level HATISS 02 STEP 7 with basic salary of N62,676 per annum. The 2nd Claimant was promoted to the rank of Senior Clerical Officer on CONTISS 05 STEP 1 with effect from 1st January 2009 vide a letter dated 30th April 2010. Since their employments, the Claimants worked for the Defendants until they were suspended by the Defendants through letters dated 7th December 2012 based on their conviction in September 2012 by the Chief Magistrate Court II, Minna for alleged and unfounded offence of joint act and forgery. At the time of the suspension, the 1st Claimant had attained the level of CONTISS 5 STEP 3 while the 2nd Claimant has attained level CONTISS 6 STEP 1 in the service of the Defendant. The Claimants appealed against the judgment of the Chief Magistrate Court II, Minna and the judgment was set aside by the High Court Appellate Division sitting in Minna and the Claimants were discharged in the judgments dated 11th April 2019 and 16th January 2019.

 

After the judgments of the High Court Appellate Division, counsel for the Claimants wrote the letters dated 18th January 2019, 25th January 2019, 15th April 2019 and 24th April 2019 to the Defendant to request reinstatement of the Claimants and payment of their salaries but the Defendants did not respond to any of the letters. In the first week of June 2019, one Danjuma S. Adamu, a staff of the Defendants, delivered dismissal letters dated 22nd January 2019 to the 2nd Claimant. The 2nd Claimant was to deliver the 1st Claimant’s copy to him. At the time of delivery of the dismissal letters, there was no criminal convictions against the Claimants having been discharged by the Minna High Court Appellant Division and they did not commit any act of gross misconduct in line with Rule 2.08 and without due process of law as provided under the NECO Staff Regulation and Condition of Service. The dismissal of the Claimants is not in line with the NECO Staff Regulation and Condition of Service.

 

The last salary received by the Claimants was that of November 2012. The Defendants stopped payment of the Claimants’ salaries in December 2012 following their suspension. The Claimants proceeded to compute their outstanding salaries from December 2012 to September 2021. The computation shows that the outstanding salaries of the 1st Claimant is the sum of N9,460,978.26 while that of the 2nd Claimant is the sum of N10,333,660. The Claimants added that by October 2021 they would be on CONRAISS 07 STEP 06 and CONRAISS 07 STEP 7 respectively and their monthly salaries would have been the sum of N122,613.00 and N126,177.00 respectively. The Claimants also aver that the computation of their outstanding salaries was based on the Consolidated Research and Allied Institutions Salary Structure [CONRAISS] which came into effect from 23rd March 2011 and the New Minimum Wage Mathematical Model based on the parameters as contained in the recent agreement reached between the Organized Labour Union and the Federal Government of Nigeria which came into effect in 2019. The Claimant also stated that they have suffered psychologically, physically and emotional as a result of their suspension and dismissal. They also said they each paid the sum of N500,000 to their counsel to prosecute this suit.

 

CW1 tendered 8 documents in evidence marked Exhibits C1 to C8 and in cross examination by counsel for the Defendants, CW1 said the appeal against the judgment of the Niger State High Court Appellate Division is still pending. On his part, CW2 tendered 11 documents in evidence which were marked Exhibits C9 to C19. In cross examination by counsel for the Defendants, CW2 said he is aware the appeal in the Court of Appeal was determined against him but he has appealed to the Supreme Court.

 

DEFENCE

In defence of the suit, the Defendants filed a statement of defence and called one witness. DW1 is one KPEMI MIKE BARAKUMOH, a legal officer with the Defendants. In his evidence, DW1 said the Claimants were among 10 other persons arraigned before Chief Magistrate Court II Minna on 25th September 2012 by the State for offences of joint act, forgery, and making or possession of counterfeit seal with intent to commit forgery. The Claimant’s pleaded guilty to the charge and they were summarily convicted and sentenced to terms of imprisonment without option of fine. The Claimants challenged the judgment of the Chief Magistrate Court to the High Court of Niger State Appellate Division in separate appeals. The appeals did not attack the substance of the charge but rather attack procedure and sentencing of the Claimants without option of fine. In the judgment of the High Court Appellate Division delivered in the appeals of the Claimants on 11th April 2019 and 16th January 2019, the Claimants were discharged but not acquitted of the offences. The Claimants dismissal was pursuant to Rules 030410 Public Service Rules and Rule 2.08, 6.03[ii]c]i] of the NECO Staff Regulation and Condition of Service. The Claimants were properly convicted for criminal offences and they have not been acquitted of the offences and neither has their convictions been upturned by an acquittal.

 

The State appealed the judgments of the High Court Appellate Division in appeals numbers CA/A/CR/850/2020 and CA/ABJ/CR/866/2020. The judgment of the High Court Appellate Division was set aside in appeal CA/A/CR/850/2020 while appeal number CA/ABJ/CR/866/2020 is still pending. The 1st Defendant reviewed all the facts and dealt with the matter of the conviction of the Claimants in view of Rules 030410 PSR and Rule 2.08, 6.03[ii]c]i] of NECO Staff Regulation and Condition of Service. The Claimants admitted to commission of the offences; therefore, their dismissal was right and proper.

 

DW1 tendered 3 documents in evidence which were marked Exhibits DW1, D2 and D3. In cross examination by counsel for the Claimants, DW1 said he does not know whether or not the Claimants faced any panel.

 

I have read the final written addresses of the parties. I do not see any reason to rehash its contents here. Arguments proffered by learned counsels in the Claimant’s written addresses have been duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment.

 

COURT DECISION

From the evidence of the parties, these are the facts of this case: The Claimants were employees of the 3rd Defendant. In September 2012, the Claimants were arraigned along with some other persons before the Chief Magistrate Court II, Minna, for the offences of joint act and forgery by the State [which is the Niger State]. The Claimants pleaded guilty to the charges and they were accordingly summarily tried and convicted. The Claimants were sentenced to prison terms without option of fine but they filed separate appeals against the judgment of the Chief Magistrate Court II to the Niger State High Court Appellate Division. Upon the conviction of the Claimants by the Chief Magistrate Court II, the 3rd Defendant suspended the Claimants from duty vide the letters dated 7th December 2012. The suspension letter of the 1st Claimant is Exhibit C12.

 

The Claimants’ appeals against the judgment of the Chief Magistrate Court II were determined by the Niger State High Court Appellate Division on 11th April 2019 and 16th January 2019 respectively. The certificates of judgments are Exhibits C13 and C4 and they reveal that the judgments of the Chief Magistrate Court II were set aside and the Claimants were discharged. After the judgments of the Niger State High Court Appellate Division, the Claimants wrote letters to the 2nd Defendant for reinstatement but the letters were ignored. Then in June 2019, the Claimants received letters dated 22nd January 2019 from the 3rd Defendant dismissing them from the employment. The dismissal letters of the Claimants are Exhibits C16 and C7 respectively. Meanwhile, the State appealed the judgments of the Niger State High Court Appellate Division to the Court of Appeal in appeals numbers CA/A/CR/850/2020 and CA/ABJ/CR/866/2020. Appeal number CA/A/CR/850/2020 relates to the 1st Claimant and it has been determined to the effect that the judgment of the Niger State High Court Appellate Division was set aside. The judgment of the Court of Appeal is Exhibit D1. This judgment is in respect of the 1st Claimant who told this court during cross examination that he has further appealed the judgment of the Court of Appeal to the Supreme Court, even though he did not produce any evidence of the appeal. On the other hand, Judgment is yet to be delivered in appeal number CA/ABJ/CR/866/2020 which relates to the 2nd Claimant.

 

In relief 3 of the 2nd amended statement of facts, the Claimants sought a declaration that by virtue of the High Court Appellate Division judgment, the Claimants have been cleared and discharged of the alleged crime they were initially convicted by the Chief Magistrate Court 2 Minna. Has the Claimant proved this relief in view of the judgment of the Court of Appeal in appeal number CA/A/CR/850/2020 and the pending appeal number CA/ABJ/CR/866/2020?

 

Exhibit D1 is the judgment of the Court of Appeal delivered on 2nd December 2021 in appeal number CA/A/CR/850/2020 wherein the judgment of the High Court Appellate Division in the appeal of the 1st Claimant was set aside. That is to say, the judgment of the High Court Appellate Division which the 1st Claimant relied on to claim he has been cleared and discharged of the alleged crime he was initially convicted of by the Chief Magistrate Court II Minna, is no longer subsisting. The 1st Claimant has not shown that there is any pending appeal against the judgment of the Court of Appeal. As for the 2nd Claimant, the judgment of the High Court Appellate Division which the 1st Claimant relied on to claim he has been cleared and discharged of the alleged crime he was initially convicted by the Chief Magistrate Court II Minna, is subject of a pending appeal in the Court of Appeal. The implication is that it cannot be concluded at this point that the 2nd Claimant has been cleared and discharged of the alleged crime he was convicted for by the Chief Magistrate Court II Minna. Accordingly, in view of the judgment of the Court of Appeal in appeal number CA/A/CR/850/2020 and the pending appeal number CA/ABJ/CR/866/2020 against the judgment of the High Court Appellate Division, the declaration sought by the Claimants in relief 3 cannot be made.

 

Principally, the cause of action of the Claimants is their dismissals from the employment of the 3rd Defendant vide the letters dated 22nd January 2019. See Exhibits C16 and C7. In these letters, the Claimants were dismissed from the employment of the 3rd Defendant with effect from 17th January 2019. Thus, in reliefs 1 and 2 of the 2nd amended statement of facts, the Claimants sought this court to declare as follows:

1.      A declaration that the dismissal of the plaintiffs by the defendants without due process is unlawful, null and void ab initio and contrary to the NECO staff regulation and condition of service 2015 made pursuant to section 11[1][2] of the NECO ACT 2002.

2.      A declaration that the dismissal of the plaintiffs by the defendant without giving them any opportunity of being heard on grounds allegedly raised amount to denial of fair hearing as guaranteed under section 36 of the CFRN 1999 as amended.

 

From the averments in the statement of facts, the Claimants joint complaints against their dismissal are as follows: At the time of their dismissal, there was no criminal conviction against them as they have been discharged by the High Court Appellate Division; they did not commit any act of gross misconduct and there was no due process of law as provided under the NECO Staff Regulation and Condition of Service and their dismissal is not in line with the NECO Staff Regulation and Condition of Service. See paragraphs 19 and 21 of the 2nd amended statement of facts. In paragraph 17 of the witness statement on oath of the 1st Claimant, this is what he said:

“That to the surprise of the 1st plaintiff, the defendants issued dismissal letters dated the 22nd day of January 2019 to the plaintiffs which was delivered to the 2nd plaintiff by one Danjuma S. Adamu who is a staff of the defendants and same was handed over to him the 1st week of June 2019, for him to also deliver to the 1st plaintiff where at this point there was no criminal conviction against them as they have been discharged by the High Court Minna Appellate Division, and not having committed any act of gross misconduct in line with Rules 2.08 and without due process of law as provided under the Staff Regulation and Condition of service of NECO made pursuant to section 11[1](2) of the NECO Act Cap N37”.

 

The 2nd Claimant said the same thing in paragraph 17 of his witness statement on oath. The averments in paragraphs 19 and 21 of the statement of facts and the statements in paragraph 17 of the respective statements on oath of the 1st and 2nd Claimants are all the Claimants said in respect of their claims in reliefs 1 and 2. In other words, these are the entire complaints of the Claimants against their dismissal by the Defendants.

 

The Claimants have alleged that there was no criminal conviction against them as one of the reasons they believe their dismissal was unjustified. Their belief is anchored on the fact that they were discharged by the Niger State High Court Appellate Division. I have earlier stated in this judgment that this belief cannot hold water in view of the judgment of the Court of Appeal in appeal number CA/A/CR/850/2020 and the pending appeal number CA/ABJ/CR/866/2020 against the judgment of the High Court Appellate Division.

 

Exhibit D1 is the NECO Staff Regulation and Condition of Service tendered in evidence by DW1. DW1 also stated in his evidence that the Claimants dismissal was done pursuant to Rules 030410 PSR and Rules 2.08 and 6.03[ii]c]i] of the NECO Staff Regulation and Condition of Service was proper. I have seen the provisions of Rule 6.03 of NECO Staff Regulation and Condition of Service which prescribe acts amounting to serious misconducts in the employment of the 3rd Defendant. One of the acts of serious misconduct which may lead to dismissal is conviction on a criminal charge in Rule 6.03[ii]d). As at the time of the Claimants’ dismissal on 17th January 2019, their convictions have not been set aside by the Niger State High Court Appellate Division. Let me mention also that the conviction of the Claimants by the Chief Magistrate Court II, Minna, was upon the admission or plea of guilty by the Claimants. Thus, the Defendants had a ground under the NECO Staff Regulation and Condition of Service to dismiss the Claimants from service.

 

The only issue raised in the allegations of the Claimants in paragraphs 19 and 21 of the statement of facts which may be examined is whether the defendants, in purporting to dismiss the Claimants, followed due process of law as provided under the Staff Regulation and Condition of service of NECO?  Since it is the Claimants who alleged that due process of law as provided under the Staff Regulation and Condition of service of NECO was not followed in their dismissal, the burden of proof rests on them. In W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512, it was held that an employee who brings a case for wrongful termination or dismissal, must, in order to succeed, plead and prove the following essential particulars:

i.          The terms and conditions of his appointment;

ii.         The circumstances under which his appointment can be terminated or dismissed under the condition of service;

iii.        The procedure stipulated in the condition of service for termination of the employment or dismissal and the manner in which the termination or dismissal breached the said terms and conditions of his appointment.

 

See also ANTE vs. UNIVERISITY OF CALABAR [2011] FWLR [Pt. 41] 1909 at 1928; OLORUNTOBA-OJU vs. ABDUL-RAHEEM [2009] All FWLR [Pt.497] 1 at 42. Accordingly, since the Claimants have sought this court to declare their dismissal unlawful, null and void ab the Claimants must meet the requirements of the law as established in the above cases. Furthermore, the claims of the Claimants which challenge the dismissal are for declarations. The law is trite that declaratory reliefs are not granted as a matter of course. They must be proved by credible evidence to entitle the Claimant to the declarations sought. See SULE vs. HABU [2012] All FWLR [Pt.643] 1910; YUSUF vs. MASHI [2017] All FWLR [Pt.912] 664.

 

The burden placed on the Claimants in their allegation that due process was not followed in their dismissal is that they must plead and prove the terms and conditions of their employment and show how the terms and conditions were violated or not followed when they were dismissed. In this case, the Claimants merely referred to the Staff Regulation and Condition of service of NECO and said their dismissal did not follow due process of law as provided under the NECO Staff Regulation and Condition of service. The Claimants did not plead or prove how their employment can be terminated under the said NECO Staff Regulation and Condition of Service. They also did not plead or prove the procedure stipulated in the NECO Staff Regulation and Condition of Service for termination of the employment or dismissal. They also failed to plead or prove the manner in which their dismissal breached the terms and conditions of the NECO Staff Regulation and Condition of Service. In view of the state of pleading of the Claimants and the evidence they have adduced, they have not shown that their dismissal was done in breach of the NECO Staff Regulation and Condition of Service.

 

Although the Claimants relied on the NECO Staff Regulation and Condition of Service, none of them deemed it fit to produce it in evidence. It was the Defendant who tendered it in evidence. Even though the NECO Staff Regulation and Condition of Service is in evidence, in as much as the Claimants did not plead or prove the terms therein which support their case, it is not the duty of this court to investigate the content of the document to find the due process or procedure the Defendants are alleged to have failed to follow. Courts of law do not make cases for the parties. A Claimant swims or sinks with the case he presents before the court.

 

That takes me to relief 2 sought by the Claimants. The Claimants sought a declaration that they were dismissed without giving them fair hearing. In deciding this claim, I have read the pleadings and the evidence of the Claimants all over to see where they stated the facts and the evidence in support of the claim but I find they did not make any averment or adduce any evidence in proof of the claim. The Claimants did not aver or allege anywhere in their pleading or evidence that they were denied fair hearing before the dismissal.

 

I find in this case that the complaints made by the Claimants against their dismissal in their pleading and evidence are too trivial and shallow. They failed to make out a good case upon which to consider that their dismissal was unlawful. Instead of the Claimants to devote their pleading and evidence to making a good case in challenging their dismissal, they concentrated more and used a major part of their case in computing salaries to be paid to them upon succeeding in the case. They, perhaps, forgot that they had to first prove that their dismissal was unlawful before being entitled to payment of accumulated salaries.

 

I have carefully considered the case of the Claimants with regards to their allegation that their dismissal was unlawful but find they failed to prove the declarations they sought in reliefs 1, 2 and 3. The result is that the Claimants’ suit lacks merit and it is hereby dismissed. No order as to cost.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge