IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE E.N. AGBAKOBA
DATE: 28TH JULY, 2023
SUIT NO: NICN /ABJ/247/2020
BETWEEN
MRS EUNICE OVAYEUN OJAPA ……………… CLAIMANT
AND
1. UNIVERSITY OF ILORIN
2. UNIVERSITY OF ILORIN SECONDARY …………… DEFENDANTS
SCHOOL GOVERNING BOARD
REPRESENTATION
ANSELEM OBARAEZE Esq. for the Claimant
YAKUB DAUDA Esq. with PATRICIA IKPEGBU Esq. for 1st and 2nd Defendants
JUDGEMENT
1. The Claimant via a General Form of Complaint, Statement of Facts and other frontloaded process also dated 9th September 2020 and filed 18th September 2020 commenced this suit against the Defendants seeking the Honorable Court for the following reliefs:
a. A DECLARATION that the termination of the Claimant’s appointment by the 1st Defendant through the instrumentality of the letter issued under the hand of ALHAJA S.N JAIYEOLA Secretary Unilorin Secondary School Governing Board dated the 26th August, 2019 based on the purported allegation of misconduct leveled against her in the course of her duties as the Vice-Principal Academics is unlawful, illegal and therefore null and void in the light of the provisions of the Staff Conditions of Service of Unilorin Secondary School, University of Ilorin, Kwara State Nigeria made pursuant to the University of Ilorin Act.
b. A DECLARATION that the termination of the appointment of the Claimant, for gross misconduct, through the instrumentality of the letter of termination dated the 26th of August 2019, is unlawful, null and void and contrary to the provisions of the Staff Conditions of Service of Unilorin Secondary School, University of llorin, Kwara State Nigeria made pursuant to the University of Ilorin Act.
c. A DECLARATION that the termination of the appointment of the Claimant, for gross misconduct, through the instrumentality of the letter of termination dated the 26th of August 2019, in as much as it is hinged on
i. Wrong procedure adopted by the Defendants contrary to the principles of fair hearing as provided in section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
ii. Breaches of due process
iii. Allegations of crime and criminal imputations is unlawful, illegal, and therefore unconstitutional, null and void.
d. AN ORDER setting aside all deliberations, notices, minutes of meetings etc. leading to the purported letter of termination dated the 26th of August 2019 issued by the 2nd Defendant under the hand of Alhaja S.N. JAIYEOLA for and on behalf of the 1st and 2nd Defendants on the grounds and for the reasons here to before provided thus rendering the entire exercise as being null and void and of no consequence.
e. AN ORDER reinstating the Claimant to her office forthwith as the Vice- Principal (Academics) of the USS Ilorin Secondary School, Ilorin, Kwara State back to the employment of the Defendants.
ALTERNATIVELY
f. A Declaration in the alternative and immediate settlement of all her outstanding salaries and other emoluments as if her purported termination never took place.
g. AN ORDER of injunction restraining the defendants acting either by themselves or their privies from enforcing or continuing to enforce the purported letter of termination and the conditions stated therein.
h. The cost of this action.
2. In response to this suit commenced, the Defendants filed a Memorandum Conditional Appearance, Statement of Defence and all frontloaded document which was initially out of time, however by an application extending the time within which to file the processes the Defendants sought an extension of time. The Court granted the application and the processes were regularized and filed 16th March 2021.
The Claimant filed a Reply to the Defendants’ Statement of Defence which was filed out of time, however by an order of Court Claimant’s reply was deemed filed and regularized on the 10th November 2021. With these pleadings filed, parties joined issues.
3. Before proceeding, I will give a brief summary of the complaints of the Claimant and the defenses of the Defendants to the complaints.
CLAIMANT’S CASE
4. The Claimant she joined the services of the 2nd Defendant on or about the 15th October 2007 as Senior Tutor II, Home Economics on JSS II step 1 in the USS Ilorin and continued to receive promotions and commendations until her current position of the Vice Principal (Academics). Upon the termination of her appointment, Claimant was accused of been involved in exam malpractice. The Panel set up by the Deputy Vice-Chancellor (Management) interrogated her twice and that the Principal was in attendance during the 2nd interrogation. During the interrogation before the Panel on 3rd July 2019, the panel denied her the same opportunity to explain. On 26th August 2019, the 2nd Defendant purportedly issued her a letter of TERMINATION OF APPOINTMENT and demanded that she hand over all keys of offices and the identity card in her possession to the Head of Department which she did.
DEFENDANTS’ DEFENCE
5. The Defendants on the other hand maintained that Claimant is a former employee of the 2nd Defendant prior to the termination of her appointment by the Defendants. During an examination conducted for JSS 1 students, a complaint came to the Principal that scores were being changed on the Claimant’s instructions to the typist in charge of the computer. The Principal perused both documents and discovered the discrepancies on the un-typed score sheet as they were riddled with alterations and she questioned the Complainant on the alteration of scores on same but the Claimant could not give a satisfactory explanation, she only said that the final scores are those already typed.
6. The Principal reported the issue to the 2nd Defendant to whom she is to report any act of misconduct of any of its staffers and she was informed to put it in writing. A panel was setup. At the Panel all teachers were interrogated, they made written statements and same were submitted to the panel. The Panel’s report was submitted to the defendants and the 1st Defendant through the 2nd Defendant instructed the termination of appointment of all the teachers involved in the issue and this resulted into the termination of the appointment of the complainant.
7. At the trial which commenced on 30th May 2022, the Claimant testified as CW1 and as the sole witness, she adopted his Witness Statement on Oath filed on 18th September 2020 which was then admitted in evidence as Exhibit C1. The Witness also tendered the following documents;
a. EXHIBIT C2: Offer of Employment to Mrs. Eunice Ojapah by the University of Ilorin Secondary School Governing Board dated 15th October 2007 signed by B.O. Badmus.
b. EXHIBIT C3: Confirmation of Appointment with effect from 17th October, 2009 issued by the 2nd Defendant under the hand of Alhaja S.N. Jaiyeola dated 20th March 2017.
c. EXHIBIT C4: USS Ilorin Staff Conditions of Service.
d. EXHIBIT C5: 2016 USS Staff Promotion Exercise dated 10th July 2017 signed by Alh. S.N. Jaiyeola, Secretary, USS Ilorin Governing Board wherein the Claimant was promoted from Senior Tutor II to Senior Tutor.
e. EXHIBIT C6: Posting as Vice-Principal dated 25th September 2018 signed by Secretary to the USS Ilorin Governing Board, Alh. S.N. Jaiyeola.
f. EXHIBIT C7: Directive to step aside dated 19th June 2019 issued by the USS llorin Governing Board, signed by Alh. S.N. Jaiyeola, the secretary to the board.
g. EXHIBIT C8: Position of the USS PTA on Unilorin Secondary School Crisis dated 23rd July 2019 signed by the Executives of the USS Ilorin PTA.
h. EXHIBIT C9: Termination of Appointment dated 26th August 2019 issued by the USS Ilorin Governing Board under the hand of Alh. S.N. Jaiyeola, the secretary of the board.
i. EXHIBIT C10: Re-appeal on the termination of Appointment (Ojapah Ovayeun Eunice) dated 15th September 2019.
j. EXHIBIT C11: Letter of Reminder (Re-appeal on the termination of Appointment (Ojapah Ovayeun Eunice) dated 16th September 2019.
k. EXHIBIT C12: Re-appeal on the termination of my appointment (2nd Reminder) dated 23rd September 2019.
l. EXHIBIT C13: Letter from J. Olukunle Alabi & Co dated 13th November 2019 captioned “PETITION AGAINST UNWARRANTED AND UNLAWFUL TERMINATION OF APPOINTMENT”
m. EXHIBIT C14: Letter from J.B. Daudu and Co dated 23rd July 2020 captioned: RE-PURPORTED TERMINATION OF APPOINTMENT OF EUNICE OVAYEUN OJAPAH (MRS).
n. EXHIBIT C15: Copies of the proof of dispatch and proof of delivery issued by DHL Express on 23rd and 29th July respectively of the letter written by J.B. Daudu and Co on behalf of the Claimant.
o. EXHIBIT C16: Reply letter dated 10th August 2020 to from the Secretary to the 2nd Defendant.
8. The Claimant Witness was cross-examined and discharged. The Claimant did not reexamine her witness. The Defendants on the 24th January 2023 entered its defence and called its sole witness one PROF. LASIELE ALABI YAHAYA a Staff of the 1st Defendant and Chairman of the Panel Committee setup to Investigate Misconduct of the Teachers at the 2nd Defendant School. Defendant Witness adopted his Witness Statement on Oath deposed to on the 16th March 2021 which was then admitted in evidence as Exhibit D1. The Witness also tendered the following document;
a. EXHIBIT D2: Letter dated 1st July, 2019
b. EXHIBIT D3: Query Letter dated 13th June, 2019.
c. EXHIBIT D4: Letter dated 11th June 2019.
d. EXHIBIT D5: Report of the Principal to the Defendant, 21st November, 2019.
e. EXHIBIT D6: Letter dated 19th August, 2019.
f. EXHIBIT D7: Report of Panel dated 25th July, 2019.
g. EXHIBIT D8: Statement of Complaint.
h. EXHIBIT D9: Typed and un-typed Score Sheets.
9. The Defendant’s Witness was cross-examined and discharged. The Defendants did not reexamine their witness. The Court adjourned for Adoption of Final Written Addresses.
10. The Defendants filed their Final Written Address on the 17th May 2023. The Claimant filed his Final written Address on the 6th June 2023. No Reply on Points of Law were filed.
DEFENDANTS’ FINAL SUBMISSIONS
11. In addressing the Court, Counsel to the Defendants raised two issues for determination to wit;
1. Whether the Claimant who seeks declaratory relief and who is burdened with the duty to prove same has been able to discharge the burden placed on her for her to be entitled to the said declaratory reliefs?
2. Whether the failure on the part of the Claimant to adopt her Reply and its accompanying Additional Written Statement on Oath of 10th November, 2021 has not amounted to an admission of all the material facts pleaded in the Defendants’ Statement of Defence, thereby making the said Reply and its accompanying Additional Written Statement on Oath as having been abandoned?
ISSUE ONE
12. Learned Defendant Counsel submitted from the reliefs indorsed by the Claimant her major reliefs are declaratory in nature and this no doubt places the burden of proving her entitlement to same on her. He submitted that declaratory reliefs are not granted as a matter of course, it cannot also be granted on admission or on the failure of the adversary to file defence to the Claimant’s claim. Thus a party like the Claimant herein, seeking declaratory reliefs has a bounding duty to prove her entitlement to same and she is not permitted to rely on the weakness of the Defendant’s case should there be any. ELIAS V. OMO-BARE (1982) LPELR-1116(SC); ATTORNEY GENERAL OF RIVERS STATE V. ATTORNEY GENERAL OF THE FEDERATION (2022) LPELR- 57708 (SC); DUMEX (NIG) LTD V. NWAKHOBA & ORS. (2008) LPELR-965; Sections 131, 132 and 131 of the Evidence Act; ERINLE & ORS V. ALUKO & ORS. (2013) LPELR-22157 (CA).
13. The Defence Counsel stated that the crux of the Claimant’s claim is that she was not given fair hearing before her employment was terminated by the Defendants. In her attempt to substantiate this, the Claimant made averments in her Statement of Facts regarding the circumstances that led to the termination of her employment and also tendered documents in purportedly proving her case. Counsel argued that being the party with the burden to prove her allegation of denial of fair hearing, whether the Claimant has shown, through the evidence she adduced during trial, that she was not given fair hearing before her appointment was terminated? In proffering answer to the above question, Counsel stated that what are required to be done, when a party’s employment with statutory flavour is to be determined are as follows:
(i) Invitation of the affected employee to a Disciplinary Committee or Panel of Enquiry;
(ii) Bringing of the allegation(s) against the employee to her attention and allowing her to state her defence to the charge.
(iii) Taking of witnesses, if any, and giving the employee the opportunity to cross examine the witnesses.
(iv) Decision of the Committee/Panel and communication of same to the employee.
14.Counsel to the Defendant stated that parties are ad idem on the fact that the Claimant was duly invited to the Investigation Panel of the Defendants where the allegations against her were considered. The Report of the Panel dated 25th July, 2019 (Exhibit D7) was tendered in evidence. The Claimant admitted in paragraphs 22 and 23 of her Statement of Facts that she was invited before an Investigation Panel for interrogation. It is submitted that this constitutes an admission by the Claimant and the law is well settled that what is admitted need no further proof. CHINWO & ORS. VS. CHINWO & ANOR (2010) LPELR-9113 (CA); OKELOLOA V. ADELEKE (1999) 1 NWLR (PT. 585) 55; TOTAL NIG. PLC V. MORKAH (2003) FWLR (PT. 143) 1343 AT 1358. It is a trite law that facts admitted need no further proof as admitted facts are taken as established. SEE SECTION 123 OF THE EVIDENCE ACT 2011. JEGEDE & ANOR VS. INEC & ORS (2021) LPELR-55481 (SC); BENDEL PILGRIM WELFARE BOARD VS. IRAWO (1995) 1 NWLR (PT. 369) CA. Counsel argued that at the hearing of the Panel, the Claimant was given an opportunity to make presentation in respect of the allegations for which she was invited to the Panel. He submitted that the Claimant was given fair hearing before her appointment was eventually terminated. BABA V. N.C.A.T.C. (1991) 5 NWLR (PT. 192) PG. 388 SC.
15. Counsel to the Defendant submitted that it is clear from Exhibit C2, tendered by the Claimant herself that her appointment with the 2nd Defendant is devoid of statutory flavour, hence the hearing given to her could also be said to be superfluous and expression magnanimity on the part of the Defendants. Counsel further argued that a clear perusal of the said Exhibit C2 will no doubt reveal that the Claimant’s appointment with the 2nd Defendant is not a permanent appointment but a contract appointment that is renewable every 3(three) years and paragraph (i) of her conditions of employment clearly states that the 2nd Defendant may terminate her appointment without notice or salary in lieu of notice. He submitted that from the content of Exhibit C2 that the Claimant is a contract employee of the 2nd Defendant whose appointment may be terminated at will as she was not a permanent staff of the 2nd Defendant. DIAMOND BANK PLC V. CHIJIOKE UNAKA & ORS (2019) LPELR-50350 (CA).
16. Counsel submitted that, authorities are replete that it is what an employer considers as a misconduct that is misconduct in the eyes of the law and that Exhibit C4, which is the Staff Conditions of Service of the 2nd Defendant is very clear as it does not make provisions for the role of the PTA of School in disciplinary procedure of the 2nd Defendant. The Claimant who tendered Exhibit C4 has failed to pinpoint where it is written in the said exhibit that the Parents Teachers Association of the 2nd Defendant has a role to play in the disciplinary procedure of the 2nd Defendant.
ISSUE TWO
17. It is Counsel’s submission that the purported attempt to provide answers or to dislodge or deny some important and weighty averments in the Defendants’ Statement of Defence to the Claimant’s Statement of Facts, the Claimant filed what she tagged as Reply to the Defendants’ Statement of Defence and same was accompanied by her Additional Witness Statement on Oath, all filed on 10th November, 2021. However, when the Claimant opened her case in the proceedings of 30th May 2022, she identified and adopted her Written Statement on Oath of 18th September, 2020, which is of 35 paragraphs. Counsel submitted that a Reply to a Statement of Defence filed but not adopted is as good as not being filed at all and same has to be treated as not being filed and therefore it could be conveniently concluded that the Claimant did not have any Reply to the Defendants’ Statement of Defence. OBIOZOR V. NNAMUA (2014) LPELR-23041 (CA).
18. Counsel argued that the Claimant has no Additional Written Statement on Oath to compliment the said Reply as she has failed to adopt the said Additional Written Statement on Oath, which she ought to have used to cloth the said controversial Reply to the Defendants’ Statement of Defence. He submitted that the law is clear on un-adopted statement on oath by a witness. The adoption of the written deposition is similar to examination in chief, the witness would then be cross examined if need be. Where a witness fails to adopt his/her Written Additional Statement, the statement cannot be used as material in the proceedings to determine the pending matter, same would be deemed abandoned. NWALUTU VS. NBA & ANOR (2019) LPELR - 46916 (SC) PP. 25 - 27, PARA. B, GOAR VS. DASUN & ORS (2009) LPELR - 4205 (CA) PP. 26 - 27, PARAS. A - C, OBEYA VS. OKPOGA MICROFINANCE BANK LTD (2019) LPELR - 47615 (CA) P. 23, PARAS. B - F and IDRIS VS. ANPP (2008) 8 NWLR (PT. 1088) 1, 97 and 153.
CLAIMANT’S FINAL SUBMISSION
19. In addressing the Court, Counsel to the Claimant raised two issues for determination to wit;
a. Whether the claimant’s employment being an employment with statutory flavour can be dispensed with by the employer in violation of the principles of fair hearing and or in violation of the enabling statute?
b. Whether the plaintiff is entitled to be reinstated back into the employment of the 2nd defendant or in the alternative an immediate settlement of all her outstanding salaries and other emoluments as if her purported termination never took place having established that the claimant’s right to fair hearing has been brazenly infringed by the defendants?
ISSUE ONE
20. Learned Counsel for the Claimant first stated that there is no doubt that the Claimant was employed by the 2nd Defendant on the 15th October, 2007 through an offer of employment dated the 15th October, 2007 admitted in evidence before this Honourable Court as Exhibit C2 which appointment was confirmed by an instrument dated the 20th March, 2009 and admitted in evidence as Exhibit C3. The employment of the staff of the Unilorin Secondary School including the Claimant is regulated and governed by the Conditions of Service of UNILORIN Secondary School admitted in evidence as Exhibit C4. Exhibit C4 before this Honourable states the procedure for appointment, discipline, promotion and termination of appointment of staff of Unilorin Secondary School. Counsel submitted that (a) the Claimant’s employment is one laced with statutory flavor to which the Conditions of Service of Unilorin Secondary School must strictly apply and (b) that the Claimant was terminated without recourse to the procedure laid down by the Conditions of Service of Unilorin Secondary School. Counsel submitted that where the provisions of a statute govern the conditions of employment of an employee the courts regard the employee as having secured a special legal status, other than the ordinary master – servant relationship, with his employer. An employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute. UJAM V I.M.T (2007) 2 NWLR (PT. 1019) PG. 479 AT 492 PARAS. B-C; OLANIYAN V UNIVERSITY OF LAGOS (1985) 2NWLR (PT. 9) 599.
21. The employment of the Claimant is laced with statutory flavor and not a contract appointment that is renewable every 3(three) years as stated by the defendants. Thus the termination of Claimant’s employment was done with monumental disregard of the procedure outlined in the Conditions of Service of Unilorin Secondary School.
22. Counsel argued that the report of the Panel set up by the Governing Board of Unilorin Secondary School (USS) to investigate the case of misconduct of staff during the 2019 Entrance Examination for UBE 7 Students held on the 18th May, 2019 did not recommend for the termination of appointment of the Claimant. Also the recommendation of the Governing Board of the Unilorin Secondary School on this same matter dated 19th August 2019 admitted in evidence as Exhibit D6 before this Honourable Court did not recommend for the termination of appointment of the Claimant. He submitted that adherence to the statute embodying the conditions of employment with statutory flavor cannot be waived. EKSU & ORS. V. FAJEMBOLA & ORS. (2022) LPELR-57501(CA).
23.Claimant Counsel submitted that it is well established law that he who asserts must prove. And the onus is on the prosecution to prove allegation of crime and not for an accused to prove his innocence. The criminal allegation of examination malpractices levelled against the Claimant is hearsay. Hearsay evidence is not admissible in court. OMOJALI V. DAVID & ORS. (2019) LPELR-478928 (CA); MUSA V. STATE (2013) 53 NSCQR P.101; ORJI & ANOR. V. UGOCHUKWU (2009) LPELR-4798(CA); Section 37 of the Evidence Act 2011.
24.Counsel argued that the Conditions of Service of Unilorin Secondary School have been formulated in such a way as to avoid injustice. Conditions of Service of Unilorin Secondary School gives the Governing Board of Unilorin Secondary School the power to terminate the appointment of staff on ground of gross misconduct determined by the Board. And the words of the provisions of Section 6.5.1 of Conditions of Service of Unilorin Secondary School is very clear and contains no ambiguity. He submitted that when the words in an enactment are clear and unambiguous, they must be interpreted in their ordinary meaning unless such leads to absurdity. OMATSEYE V. FRN (2017) LPELR-42719(CA).
25.Counsel again submitted that safeguards were not complied with by the Defendants before the termination of appointment of the Claimant and it is trite law that when an employment such as that of the Claimant is protected by statute the laws regulating the appointment and discipline must be strictly adhered to. CENTRAL BANK OF NIGERIA & ANOR V MRS AGNES M. IGWILLO (2007) 14 NWLR PART 1054.
26.Claimant Counsel argued that the Principal is the Secretary to the Governing Board of Unilorin Secondary School. And the Principal did not recuse herself on the case against the Claimant. In her capacity as the secretary to the Governing Board to the 2nd Defendant the Principal participated in the decisions and executions of resolutions of the Panel and the Board in respect of the criminal allegation of examination malpractices against the Claimant by issuing and signing instruments and documents pursuant to the resolution of the Panel, the Board and the directive of the Vice Chancellor culminating to the suspension and termination of the Claimant’s appointment. He submitted that the Principal, Alhaja S.N. Jaiyeola, acted as the accuser and the judge in her own cause. Also the Claimant was not given adequate opportunity to express herself before the Panel. As the concept of fair hearing has its base on the twin pillars of justice namely: Audi alteram partem and nemo judex in causa sua. UGWA & ANOR. V. LEKWEUWA & ANOR. (2010) LPELR-4993(CA). It is trite law that any guilt without a fair hearing is a breach of all the Rules of Natural Justice. FEDERAL CIVIL SERVICE COMMISSION & ORS V LAOYE (1989) 2NWLR (PT 106) 652; BABA V NIGERIA CIVIL AVIATION TRAINING CENTRE (1991) 5NWLR PT. 192 PG. 388 AT 415.
27. Counsel cited the case of FEDERAL CIVIL SERVICE COMMISSION V J.O LAOYE (SUPRA) where the appeal Court had this to say on the need to adhere to the principles of fair hearing:
“I think the reasoning of this Court on fair hearing is also not only in accord with the law over the ages but agrees with common sense. Anyway, is there a reason the other side should not be heard before he is condemned? Why should he not enjoy the rights conferred upon him by law as regards his employment? Why should he not be protected by the Constitution and have criminal charges against him determined by the Courts or tribunals set up by the Constitution itself? I think it is admitted in every reasonable culture even apart from the decisions of this Court, that a judge should hear both sides before determining the guilt or otherwise of a person.”
28.Counsel argued that the Defendants failed to comply with the provisions of Section 6.5.1 of Conditions of Service of Unilorin Secondary School before terminating the appointment of the Claimant on an unfounded criminal allegation. And the allegation leveled against the Claimant by the Principal of Unilorin Secondary School and the Secretary to the Governing Board of the Unilorin Secondary School in which she was not investigated by the appropriate authority amounts if proved to serious criminal offences and is liable upon conviction to be sentenced to years of imprisonment. Counsel submitted that where there is an allegation of criminal wrongs against a person, the jurisdiction to determine the allegations is vested in the courts and the exercise of such jurisdiction cannot be usurped by any Panel or administrative tribunal. DONGOTE V. C.S.C. PLATEAU STATE (2001) 9NWLR PT 717 PG 132 AT 155 – 156 PARA H – H.
29. Counsel submitted that the Claimant was never charged to court to face the criminal allegations levelled against her by the Principal and Secretary to the 2nd Defendant acting for the Defendants. The allegation in question is a serious criminal offence under our criminal jurisprudence which attracts years of imprisonment. What the Defendants ought to have done in the circumstance would have been to charge the Claimant to court to face the said criminal allegations against her before any disciplinary action whatsoever could take place.
ISSUE TWO
30. Claimant Counsel submitted that when the major breaches of fundamental rights as reiterated in issue No 1 are considered it becomes apparent that the result of the Claimant’s unlawful removal as an employee of the 2nd Defendant is a nullity and an exercise in futility. The Claimant is entitled to be reinstated, without any much ado, to his office. This can be viewed from two angles.
Counsel argued that in a situation where the steps leading up to and culminating into the removal from employment with statutory flavour is tainted one way or the other with illegality and it is a nullity, the law considers that since all those steps are null and void in any way, there was never any removal and the Claimant is as if she never lost her office or in the acceptable legal parlance, her employment was never at an end. ADENIYI V GOVERNING COUNCIL OF YABA TECHNOLOGY (1993) 6 NWLR PT. 300 PG. 402 AT 425. And the law does not confer the court with discretion to decline to reinstate an officer if the facts and circumstances leave the court with no other option than to reinstate him. Counsel submitted that when an employee’s service is protected by statute and his employment is unlawfully terminated, he would be entitled, in addition to re-instatement to damages representing his salaries during the period of his purported termination. OLANIYAN V UNIVERSITY OF LAGOS (SUPRA); CBN V IGWILLO (SUPRA).
31. Counsel submitted that the only legal obstacle envisaged is that which featured in SAMUEL IGBE V. GOVERNOR OF BENDEL STATE (1983) 1 SCNLR 73, (1983) 2 S.C. 114 where the Supreme Court refused to order reinstatement of a member of the public service commission who was removed in gross violation of the relevant provisions of the constitution but ordered payment of damages because supervening events made it impossible for the said member to return to his post. And it is not so in the instant case.
32. On the 14th June 2023 parties adopted and adumbrated their respective processes and this matter was adjourned for judgement.
Court’s Decision
33. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the Claimant is entitled to the relief sought in this suit.
34. Before I delve into the merit of this suit I shall address a few misconceptions bandied around in the final written addresses of the parties to this suit.
Firstly, it is apropos to note that a similar argument, as is being raised by the claimant in this case, to the effect that, in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court or criminal tribunal before disciplinary issues or action can be raised, was advanced in Ike Edward Chukwuemeka v. Enterprise Bank unreported Suit No. NICN/LA/181/2011 the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 to 17 –
35. The claimant was invariably relying on the old dispensation as evinced by case law authorities such as Biishi v. The Judicial Service Commission [1991] 6 NWLR (Pt. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as Arinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. That it is, therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA reiterated and applied this principle. In the instant case, therefore, the argument of the claimant in that regard accordingly goes to no issue; and I so find and hold.
36. Secondly, the claimant had in arguing that she was not accorded her right to fair hearing was relying on section 36 of the 1999 CFRN (as amended), As to the provision of fair hearing, the Supreme Court, with regard to fair hearing, stated the position of the law as per their recent decision in REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410, relying on BAKARE V. LSCSC [1992] 8 NWLR (PT. 266) 641 AT 699 - 700 and EKUNOLA V. CBN [2013] 15 NWLR (PT. 1377) 224 AT 262 - 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body. This court In HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS UNREPORTED SUIT NO. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017, held “that a careful reading of REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS (SUPRA) will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims - audi alterem partem and nemo judex in causa sua”. The former relates to criminal trials in Courts of Tribunals whilst the latter is the yardstick of the domestic tribunals and administrative panels. In HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS SUPRA this court went on to state that “The reliance by lawyers on section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law. Under administrative law, by judicial review, the court can always set aside any disciplinary process that does not adhere to the common law rules of natural justice”
37. This means that the claimant in contending that she was denied fair hearing by the defendants is wrong to have premised her contention on the Section 36 of 1999 CFRN, Relief a) therefore cannot be granted as couched. The Claimants only redress if any lies within the realms of Natural Law Equity and Good Conscience as per Common law.
38.Finally, the defendant made heavy weather of the question as to the effect of the Claimant additional written address in support of her reply to the Statement on defence, the Defendants are asking the /court to discountenance the reply as not being supported by evidence. It is pertinent to point out that under an adversarial system of adjudication, once a statement of defence is filed issues are deemed to be joined, in fact it is the law that a reply document is only necessary when the statement of Defence raises fresh issues and if the desire is mainly to refute the Defence in such instances rely documents are not necessary at all. The Court of Appeal had this to say in OYEKANMI & ANOR V. MTN (2020) LPELR-50168(CA) (PP. 50-59 PARAS. E) "A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponent's case as required by the Rules of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case. By failing to adopt the additional witness statement on oath as was found in YUSUF & ANOR V. HWAKIS (PP. 27-28 PARAS. D)
“Where a witness fails to adopt his written further statement, the statement cannot be used as material in the proceedings to determine the pending matter, same would be deemed abandoned”. See, NWALUTU VS. NBA & ANOR (2019) LPELR - 46916 (SC) PP. 25 - 27, PARA. B, GOAR VS. DASUN & ORS (2009) LPELR - 4205 (CA) PP. 26 - 27, PARAS. A - C, OBEYA VS. OKPOGA MICROFINANCE BANK LTD (2019) LPELR - 47615 (CA) P. 23, PARAS. B - F and IDRIS VS. ANPP (2008) 8 NWLR (PT. 1088) 1, 97 and 153." Per Uwa, J.C.A. the Claimant’s Additional witness statement on oath is by virtue of the above authorities deemed abandoned. I so hold.
Now, to the merits of the case; -
39. It is necessary to make a finding of the nature of the Claimants appointment. And a determination of above; - which of these classifications the Claimants falls into, is required and necessary in this suit at this time considering the nature of the Claimants reliefs.
The Supreme Court in the case of LONGE Vs. FBN LTD [2010] LPELR 1793 SC held that “…. there are three categories of employment
(a) Purely Master and Servant relationship
(b) Servants who hold their office at the pleasure of the employer
(c) Employment with statutory flavour….”
40. The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C
See also SHUAIBU & ORS v. NBC PLC (COCA-COLA) (2020) LPELR-52110(CA)
41. "...Now, there are mainly 3 categories of contracts of employment- namely; (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated by statute often referred to as employment with statutory flavour. See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt 9) 599, KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (2019) LPELR - 4739 (SC) CBN V. IGWILLO (2007) 14 NWLR (Pt 1054) 393.
Letter of Appointment C2
UNILORIN SECONDARY SCHOOL GOVERING BOARD
Chairman. Professor L. D. Edungbola University of Ilorin,
Secretary: Mrs. S. O. Awobuluyi P.M.B. 1515.
Ilorin
Our USS/PER/SS/075 Your Ref……………… Date: 15th October 2007
Mrs. Ojapah Eunice O,
P.M.B. 1494,
Ilorin.
OFFER OF EMPLOYMENT
Dear Mrs. Ojapah,
I write on behalf of the Governing Board of the University of Ilorin Secondary School to offer you a contract Appointment as Senior Tutor II (Home Economics) on JSSSS 11 step 1 in the University Ilorin Secondary School on a salary of Two Hundred and Eighty Five Thousand, Four Hundred and Fifty-nine Naira (N285,459.00.) only per annum.
The Contract Appointment is renewable every 3 years subject to your performance.
Other conditions of employment are as fellows:
(i) In the event of willful misconduct on your part the Governing Board of the School may terminate the appointment forthwith without notice or salary n lieu of notice.
(ii) Where the Contract Appointment offered by the Governing Board of the Secondary School is frustrated by act of God such as “force majeur” and the like, the Governing Board shall not be responsible for the payment of contract appointment salary or notice and the contract appointment shall be deemed to have terminated with effect from the date of occurrence of such impossibility;
(iii) You will be required to devote the whole of your time and attention to the service of the Secondary School and shall not take part in any other business or occupation whatsoever without the prior consent of the Governing Board in writing; and
(iv) This appointment will be subject to the Secondary School’s staff regu1aton;
(v) The contract appointment may be terminated by either of the parties by a notice in writing duly serve on other party and which shall be within 3 months or payment of 3 months contract appointment salary.
If you accept this offer of temporary appointment, please return letter of acceptance and a copy of the countersigned letter of appointment over a fifty naira postage stamp and return to undersigned.
Yours Faithfully.
B.C (ineligible)..
For: Governing Board of the Secondary School
Cc: Vice-Chancellor
b. Deputy Vice-Chancellors
c. Registrar
d. Bursar
e. Deputy Director Internal Audit
42.I also considered the following other exhibits on this point EXHIBIT C3: Confirmation of Appointment with effect from 17th October, 2009 issued by the 2nd Defendant under the hand of Alhaja S.N. Jaiyeola dated 20th March 2017. EXHIBIT C4: USS Ilorin Staff Conditions of Service. EXHIBIT C5: 2016 USS Staff Promotion Exercise dated 10th July 2017 signed by Alh. S.N. Jaiyeola, Secretary, USS Ilorin Governing Board wherein the Claimant was promoted from Senior Tutor II to Senior Tutor. EXHIBIT C6: Posting as Vice-Principal dated 25th September 2018 signed by Secretary to the USS Ilorin Governing Board, Alh. S.N. Jaiyeola and EXHIBIT C7: Directive to step aside dated 19th June 2019 issued by the USS llorin Governing Board, signed by Alh. S.N. Jaiyeola, the secretary to the board.
43. I find that the Claimant’s appointment is one of Contract; - Exhibit C2 clearly indicates that her claimants appointment was a contractual one, there is no evidence before the Court that this contract was renewed every three years or that the Defendant had at any time converted her appointment to a permanent one. The said C2 states that the appointment is governed by the Defendants regulations Exhibit C4.
The law is as was stated by SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16.
PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP.
… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them. Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void. The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.” – per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620.
44. This means the defendant are required to follow the Laid down procedure. Exhibit C4 provides for discipline in pages 13-18 in paragraphs 6.1.0 to 6.7.1 particularly paragraphs 6.1.3 -6.1.6. Provision 6.1.3 vests power to exercise disciplinary control over members of staff in the Governing Board. Provision 6.1.4 for the Head of Department /Vice Principal reports in writing
In respect of a member of staff that comes to his notice. By Provisions 6.1.5 the principal accepts this report and forwards it to the Chairman of the board, the Chairman conducts due investigation and reports to the Board. Provision 6.1.6 provides for the Staff Disciplinary and Appeals Committee who investigates such and reports to the Board. The chapter also provides for interdiction and suspension. Paragraph 6.5.1. -6.5.7. provides for Termination. In that a member of staff may be terminated for gross misconduct the magnitude of which had been determined by the board as warranting such a more severe punishment than suspension.
Form the evidence before the Court the Claimant was accused of wrongdoing and involvement in falsification of result. She maintained that she appeared before two panels However exhibit D7 the investigation Panel of 25th July 2019 and the Deliberations of the Governing Board Exhibit D6 tell a different story
45. It is pertinent to note as was done in the case of U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. The fact that a party appeared before a court or a panel does not ipso facto mean that he was given a fair hearing in a matter in which his conduct is called to question. He may have been heard, but there can be no fair hearing if a party did not know what his employer had against him. If the purpose of the hearing is to determine his guilt or the propriety vel non of his conduct, it is not enough that he is heard; the hearing must relate to his defence of the complaint against him. Being the person to be affected by the outcome of the hearing, there is need to afford him the opportunity not just to be heard, but to be heard in his defence of whatever allegation is made against him.
And the presence of the Principal on the committee I find offends principle of the Natural Justice precept of Nemo jurex in causa sua
And why were there Two panels?
D5 and D7 are the only evidence of Discipline taken by the Defendants. In OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 it was held in respect of On what employer must prove to justify dismissal or termination of his employee – that “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court’s satisfaction:
a) That the allegation was disclosed to the employee;
b) That he was given a fair hearing;
c) That the employer believed that the employee committed the offence after hearing witnesses. Bamgboye V. University of Ilorin (1999) 10 NWLR (pt. 622) 290 referred to.] (p. 145, paras. A-B)
46. The Defendant curiously tendered Exhibit D4 and D3 being the query issued to Mr. Oyelade Oyewumi Samson and the Principals memo referring the Oyelade matter to the Governing Board, but there is no evidence of any query given to the Claimant So how was the allegation disclosed to the Claimant as required by law. There is no evidence that the allegation was formally disclosed to the Claimant, Exhibit D8, notwithstanding did not refer to any query either, neither is there any evidence that the provisions off 6/1/5. were even observed either.
47.A careful perusal of Exhibit D 6 indicated that he Governing Board, as did the Investigation Committee recommended that he Claimant step down as a punishment for their perceived mis- handling of the situation but the minute to the DVC of 20th August 2019 stipulated that the Claimant and others be terminated, in respect of the Claimant this recommendation of the VC I find evolved outside the regulations governing the Claimant. Furthermore Paragraph 6.5.1. requires that the Governing Board is required to determine the magnitude to require the punishment of Termination over Suspension. This was not done in this case. Looking at Exhibit D5 and D7 neither of which recommended that Claimant termination means that the decision to terminate the Claimant was taken contrary to the evidence of witnesses. The law requires that the employer believe that the employee is guilty after listening to witnesses. But where the panel after listening to witnesses made a recommendation contrary to the position taken by the employer, and there is no evidence that the employer ever heard witnesses BAMGBOYE V. UNIVERSITY OF ILORIN (SUPRA) or in this case ever gave a hearing to the Claimant or listen to the claimant. The question now arises in addition to my earlier finding, was the Claimant in the circumstances given a fair hearing. In SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 351 It was held that Fair Hearing simply means “Hear the other side”. IMONIKHE v. UNNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 640
48. The proper procedure is as was stated in UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25.
49.Where allegations have made against an employee, the employer is entitled to set up a panel to investigate the allegations. Such an investigation panel is not a court of trial. It is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source. The panel of inquiry not being a court of trial, none of the persons whose name feature in the inquiry can insist on any right to cross-examine other person who make allegations or present memoranda at the inquiry. Once the panel concludes its inquiry and makes up its mind that any point had prima facie been made out which points to the fault of any person, the employer must first inform such an employee of the case against him and give him the opportunity to refute, explain or contradict it otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services. BABA v. N.C.A.T.C. (1991) 5 NWLR (PT. 192) 388 referred to.] (P. 36, PARAS. C-G)
50. Furthermore OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83, Held: “In the observance of the principle of Natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigating panel which has no statutory powers and the action on the recommendation by a statutory body with the requisite statutory powers. Whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated, the acting upon such recommendation does. Hence, the implementation of the recommendation by a statutory body must comply strictly with the rules of natural justice….”
The defendant is required to follow the laid down procedure as per the letter of employment which stated that the Claimants appointment was governed by Exhibit C4. This I find was not done. The Termination of the Claimant is therefore wrongful, the law is that where the termination of the Claimant is as a result of the wrong doing of the Employer one month salary is not sufficient. It was held in SUIT NO. NICN/LA/276/2014 EMANA IBOR EDET VS. FIDELITY BANK PLC delivered 17th December 2019, that where an employer terminates an employee’s contract in an unfair manner, he should not be allowed to rely on the contractually stipulated length of notice. If an employer has been dishonest or dishonourable in his treatment of an employee, the Court should turn him away from relying on the limiting clause. That the Court should apply the broadly stated dictum of Scutton, LJ in GIBAUD V. GREAT EASTERN RY [1921] 2 KB 510 at 535:
The principle is well known...that if you undertake to do a thing in a certain way...with certain conditions protecting it, and have broken the contract by not doing the thing contracted for in the way contracted for...you cannot rely on the conditions which were only intended to protect you if you carried out the contract in the way in which you had contracted to do it.
That Olagunju, JCA echoed the foregoing view in INTERNATIONAL MESSENGERS (NIGERIA) LTD V. PEGOFOR INDUSTRIES LTD [2000] 4 NWLR (PT. 651) 242 at 249 when he stated that:
a. Self-limiting of liability in a contractual obligation implied by exclusion is an arrangement of uberrima fides that can only thrive on good faith where the appellant is shown to have discharge her duty by exercising utmost care to execute the contract but failure of which equity may interpose to correct inequalities and adjust matters according to the plain intention of the parties.”
EMANA IBOR EDET VS. FIDELITY BANK PLC also held that ‘lengths of notice in a contract of employment are a species of a limiting clause”.
51. In that case the claimant then urged the Court apply SHOBOWALE V. UNITED BANK OF NIGERIA LTD [1976] 5 CCHCJ 1409 where the plaintiff who had worked for seventeen years had a mild stroke from which he recovered and resumed duty after sick leave. He challenged the retirement and Agoro, J awarded him a year’s salary even though the contract of employment stipulated two weeks’ salary in lieu of notice. And BRITISH AIRWAYS V. MAKANJUOLA [1992] 8 NWLR (PT. 311) 276, where the contract provided that the employee was entitled to two months’ salary in lieu of notice. Rather than give notice, the employer paid the employee two months’ salary in lieu of notice. The Court of Appeal held that the contract must be construed strictly against the employer and proceeded to award two years salary as general damages.
52. The claimant has not asked of any amount in damages. It is necessary to note at this time, that Section 14 of the National Industrial Court Act 2006 enjoins the court to consider all the rights and entitlements to which parties before the court are legally entitled and Section 14 provides; thus, -
“the court shall in the exercise of the jurisdiction vested in it by or under this Act, in every cause or matter have power to grant either absolutely or on such terms and conditions as the court thinks just, remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and a multiplicity of legal proceedings concerning any of those matter be avoided”.
The man on the street when considering the claimants ordeal will hold that the claimant is entitled to general damages. I hold
The justice of this case demands, I find, that the claimant be paid 5 years’ salary as compensation under section 14 I find and hold.
53. The claimant’s case succeeds but only in part and in respect of her alternative claims in that.
1. IT IS HEREBY DECELARED THAT the Termination of the Claimant by the Defendant is wrongful
2. BY ORDER OF THIS COURT the defendant shall pay to the Claimant 5 years’ salary as compensation for wrongful termination under Section 14 of NICA 2006
3. BY ORDER OF THIS COURT the defendant shall immediately settle all the Claimants outstanding salaries and other emoluments
4. The cost of this action is put at N500, 000.00.
54.All sum to be paid within 60 days thereafter 10% simple interest will attach by order of this Court.
55. This is the Court’s Judgement and it is hereby entered accordingly.
…………………………………….
HON. JUSTICE E. N. AGBAKOBA
JUDGE COURT 3
ABUJA.
