IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

DATE: JULY 28, 2023                                                    SUIT NO. NICN/ABJ/156/2021

BETWEEN

NICHOLAS IDOKO                                                         CLAIMANT

AND

FEDERAL INLAND REVENUE SERVICE                                 DEFENDANT

 

REPRESENTATION

 

Paul B. Atayi for the Claimant.

 

P.E. Gatta (Mrs) for the Defendant.

JUDGMENT

Introduction and claims

[1] The Claimant filed this complaint against the Defendant on July 16, 2021 together with the accompanying processes seeking the following reliefs:

1.      An Order setting aside the notification of compulsory retirement dated 18th January 2021 written by the Defendant to the Claimant for being unlawful, and totally unwarranted.

2. An Order restoring the Claimant back to his current position in line with his last promotion to the post of Assistant Manager (SL 08) in the career path of HR with  effect from 1st day of January, 2020.

3. An Order directing the Defendant to pay to the Claimant all the salary arrears, emoluments, entitlements and all other allowances due to him for his current position of an Assistant Manager (SL 08).

4. The cost of this action including Solicitor’s fees calculated at the sum of Four Million, Six Hundred Thousand Naira (N4, 600,000) only.

The Defendant filed its statement of defence together with the accompanying processes on 20th September, 2021. The Claimant filed a reply to the Defendant’s statement of defence on 14th October 2021.

Case of the Claimant

[2] The case of the Claimant on the pleadings is that he was offered employment by the Defendant by aletter dated 2nd day of November, 1998. He averred that he was promoted by the Defendant by a letter dated 6th March 2018 to the post of Officer 1 (SL09) in the career path of Human Resources (HR) with effect from the  1st day of January 2017. 

[3] The Claimant stated that on the 9th and 23rd of May 2019, he had taken some local herbs  (Agbo) during working hours for treatment of typhoid fever not knowing that the  herbs had some alcoholic content which caused him to become intoxicated and looked drunk. He stated that on the 28th day of May, 2019, he was served with a query captioned “Re: Scandalous Misconduct-Drunkenness” which he promptly responded to on the 29th of May, 2019 giving reasons for his act of drunkenness and expressing his deep and sincere regret for taking the local herb (Agbo) before reporting at the office on the 9th and 23rd day of May 2019 and also apologizing to the management with a plea for mercy accompanied by a resolution not to repeat that act. The Claimant stated that on the 23rd day of July, 2020 the Defendant invited him to appear before the Officers’ Disciplinary Committee where he was informed that the committee was sitting to consider the disciplinary case of drunkenness for which he had been given query on the 28th day of May, 2019.

[4] The Claimant stated that he defended himself by giving reasons for looking drunk during working hour and again apologizing to the Defendant through the Officers’ Committee with a plea for mercy while stating that the did not willfully become drunk during working hours. The Claimant stated that on the 18th day of January 2021 he was served with a Notification of his compulsory retirement from the service of the Defendant. The Claimant stated that that the basis for his compulsory retirement as captured in the notification was a disciplinary case in respect of scandalous misconduct (drunkenness) which had long been treated by the Defendant and that the notification of his compulsory retirement is contrary to the Human Policies and processes of the Defendant as the said compulsory retirement was given in the total absence of, and compliance with, the Defendant’s Human Resource Policies and processes.

[5] The Claimant stated that all disciplinary procedure must commence and be completed within a period of 60 days except where it involves criminal cases. The Claimant averred that, apart from looking drunk working hours on the said 9th and 23rd of May, 2019, he has never been found wanting nor has he ever conducted himself in any other manner contrary to the Defendant’s policies. The Claimant stated that he engaged the service of Paul Atayi & Associates, and they wrote a letter to the Defendant demanding a reversal of his compulsory retirement and restoration to his current position. The Claimant stated that the Defendant replied his Solicitor’s letter giving untenable reason for his compulsory retirement.

[6] The Claimant averred that on the 25th day of March 2021, he was invited by the Human Capital Management Department of the Defendant to receive another letter of promotion from the post of Officer 1 (SL09) in the career path of Human Resources (HR) to the post of Assistant Manager (SL08) in the career path of HR with effect from 1st day of January, 2020. The Claimant stated that he has been in the service of the Defendant since his appointment on the 2nd day of November, 1998 till date and that his compulsory retirement i unjustifiable, unwarranted, unlawful and without any legal basis and/or effect whatsoever. He averred that he has been denied his monthly salary and other allowances since the month of January 2021 till date.

 [7] The Claimant testified in support of his case. He adopted his statement on oath. It was in terms of the pleadings and he relied on his admitted documents. Under cross-examination the Claimant told the Court that the queries were for drunkenness and he appeared before the disciplinary committee. He admitted that he was issued a warning on scandalous behaviour and drunkenness; and that he received his letter of retirement on January 20. The Claimant told the Court that he refused to submit the official documents and identity card because he was going to approach the court.

Case of the Defendant

[8] The Defendant’s case on the pleadings is that the Claimant had been queried for drunkenness during official hours severally and not only on the 28th of May 2019.  The series of queries and the Claimant’s replies are dated 8th May, 2014, 28th May, 2014, 5th June, 2014, 22nd April, 2015, 5th May, 2015, 6th May, 2015, 25th February, 2016, 10th January, 2018 and 28th May, 2019. The Defendant stated that the Claimant had been invited to appear before the officers’ Disciplinary Committee siting in two (2) instances on 1st July 2015 and the 23rd July 2020. The Defendant stated that the Claimant’s records shows that he not only has a history of drunkenness at the work place which makes it impossible for him to perform his duties but also absents himself from work without permission.

[9] The Defendant averred the Claimant had on the 22nd of April 2015 reported for duty drunk and was served with query dated the 5th of May, 2015 and that this act falls within the description of wrong doing under Rules 020201 (a)(iii) of the Public Service Rules.  The Claimant in his reply to the query on the 6th day of May, 2015 admitted being drink while on duty and pleaded for mercy with a written undertaking at the foot of his response not to be drunk again. The Defendant further averred that the Claimant was invited to the Officers Committee for a disciplinary hearing by a letter dated 1st July, 2015. The Defendant stated that the Officers Committee recommended that the Claimant be counseled and a letter of warning issued to him.  The Claimant was served with a letter warning against repeat of a similar act of drunkenness after the officers’ committee heard his oral presentation. 

[10] The Defendant stated that on the 10th of January 2018 the Claimant was issued a query for absconding from duty on the 9th of January 2018 with official documents classified as confidential and not returning back to work till the close of work. The Defendant averred that the Claimant in his reply to the query on the 26th of January, 2018 which was more than two (2) weeks after the query was issued to him admitted he actually left his work place.  In his words in the second paragraph of his reply to the query he says:  “When I left the office on my way to payroll I met somebody outside the gate whom I was having discussion with.  During the process of the conversation I forgot that I was heading to somewhere before”.  The Defendant stated that after every query is issued the claimant is always given an opportunity to make written representation and also invited to face the disciplinary committee to make oral representation in compliance with the Human Resources Policies and Procedures and the Public Service Rules and he was never denied a fair hearing after the issuance of every query

[11] The Defendant stated that the behavior of the Claimant is categorized as a misconduct and under the Public Service Rules is wrong doing and not a crime requiring conviction. The Defendant averred that the Claimant wrote a statement in his own handwriting dated the 28th November 2018 titled “ABSENT FROM WORK WITHOUT PERMISSION DUE TO DRUNKENESS” and made an undertaking in the following words: “if I am found culpable of drunkenness and absenteeism management should institute disciplinary action against me”. The Defendant averred that the Claimant was issued another query on the 28th May 2019. The Defendant stated that contrary to the statement of the Claimant in paragraph 14 of his statement of material fact wherein he stated that the disciplinary procedure took longer than 60 days as no power is given to any other body other than the management board to decide whether to dismiss, retire or reinstate an employee for misconduct. The Defendant averred that the Claimant had appeared before the Officers Committee on several occasions and had been pardoned.

[12] The Defendant stated that though the officers Committee advised that he to go for counseling there was no sign of improvement in his behavior as his drunkenness increased thereby causing embarrassment to the Service. The Defendant averred that the letter written by the Claimant’s Solicitor, Paul Atayi & Associates dated the 22nd day of January, 2021 is not a pre-action notice.

[13] The Defendant stated that the report of the Officers’ Disciplinary Committee sitting between the 24th day of July 2020 to the 28th day of July, 2020 was forwarded to the Management Disciplinary committee and Board for ratification and the Claimant was  recommended for compulsory retirement which was approved on the 15th of January 2021. The Defendant stated it notified the Claimant of the provisions of the law upon which it relied upon to compulsory retire him for scandalous misconduct/drunkenness. The Defendant stated that it requested that the Claimant submit his identification card to commence the exit process, but the Claimant refused insisting that he is still a staff. The failure of the Claimant to commence exit process had delayed the payment of his retirement benefits. 

[14] The Defendant’s witness is Kamaru Alabi (DW), Deputy Director Policies and Performance Management. He testified in support of its case. He adopted his statement on oath. It was in terms of the pleadings and he relied on his admitted documents. Under cross-examination DW testified that reports of the Claimant’s drunkenness had been brought to him in his official capacity. He stated that the Claimant’s head of unit, Mr Joel called him several times and officially reported the Claimant. DW told the court that the Defendant’s officers issued queries to the Claimant at various times and that about 2 or 3 warnings were issued to the Claimant.

 

Final address

[15] The Defendant’s final address is dated 27th January, 2023 and is filed 30th January, 2023. The Claimant’s final address is dated 24th March, 2023 and is filed on 27th March, 2023. The parties adopted their respective final addresses and made oral submissions.

[16] Learned Counsel to the Defendant submitted two issues for determination as follows:

1. Whether the Claimant was lawfully compulsorily retired in accordance with the Claimant’s offer of Appointment.

 

2. Whether the employment of the Respondent was governed by any statute or              whether it enjoyed statutory flavour.

 

[17] Learned Counsel submitted that on the evidence the Claimant’s appointment is not governed or subject to the provisions of any law or statute; and that the appointment of the Claimant was not circumscribed or limited by the provisions of any law or statute. He submitted  that the Claimant is bound by the terms of the contract agreement under which he was employed. He argued that the fact that the defendant is the creation of a statute does not elevate all the employees appointment to one with statutory flavor, or that the status of master and servant is no longer existent, citing Ideh  v. Unilorin (1994) LPELR-14640(CA). He referred to Oak Pensions Ltd & Ors v. Olayinka (2017) LPELR-43207(CA) on what a Claimant must establish in proving wrongful termination of employment.

 

[18] Counsel argued that the remedy for termination in master-servant relationship, where it is not carried out or effected in accordance with the terms and conditions of the employment lies in damages and not reinstatement citing Ekpeogu vs. Ashaka Cement Company Plc. (1997) 6 NWLR (508) 280, WR & DC Limited vs. Onwo (1999) 12 NWLR (630) 312. Isievwore vs. NEPA (2002) 7 SCNJ, 323 @ 335, Obianya vs. Afribank Nigeria Plc (2007) 6 NWLR (1031) 565.  Counsel submitted that the Claimant has not proved that there existed any terms and conditions of service in the letter of offer of appointment and that the Defendant has a right to hire and fire the Claimant without any disciplinary procedure. He then urged the Court to hold that the Claimant was lawfully compulsorily retired in accordance with his offer of appointment.      

[19] Learned Counsel to the Claimant submitted five issues for determination and argued them:

1. Whether the written address of counsel can take the place of evidence?

[20] Learned Counsel argued that the address of counsel cannot take the place of evidence. He relied on the case Olagunju v Adesoye & anor (2009) LPELR 2555(SC) .

            2. Whether facts not pleaded can be relied upon in the Court of law?

[21] Learned Counsel argued that the Defendant’s final written address filed on 30th January, 2023 failed to support pleaded facts, and that no facts concerning those assertions are contained in the statement of defence.

3. Whether having regard to the Supreme Court's decision in CBN v. IGWILO (2007) 4-5 SC 154 the Claimant appointment with the Defendant is one with Statutory flavour and as such could not be lawfully terminated by the Defendant without the full compliance with the procedures stipulated in Chapter 3 of the Public Service Rules, 2004 and Part V of the Guidelines For Appointment, Promotion and Discipline, 2004?

4. Whether having regard to the entire circumstances of this case, the Defendant was not in gross violation of the Claimant's right to fair hearing and rules of natural justice as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. (as amended)?

5. Whether the Claimant’s contract of employment with the 1st Defendant was validly terminated in accordance wit h her terms and conditions of employment?

[22] Learned Counsel argued that having regard to the Supreme Court's decision in CBN v Igwilo (2007) 4-5 SC 154 the Claimant appointment with the Defendant is one with statutory flavour and as such could not be lawfully terminated by the Defendant without  full compliance with the procedures stipulated in Chapter 3 of the Public Service Rules and the Defendant’s Condition of Service. He submitted that the Court is not entitled to look outside the contract of service as to the terms and conditions.

 [23] Learned Counsel submitted that having regard to the entire circumstances of this case, the Defendant was in gross violation of the Claimant’s right to fair hearing and rules of natural justice as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). He contended that the Claimant’s grouse is that he was not given fair hearing in the investigation leading to the decision to disengage him by the Defendant and he relied on the case of Bon v. Adegoke (2006) 10 NWLR (Pt. 988) P.339 at 356. He submitted that the Officer’s Disciplinary Committees set up by the Defendant was not fair to the Claimant when they failed to permit him to listen to the testimony of the witnesses during the disciplinary proceedings set up to inquire into allegations of his drunkenness on duty.

[24] Learned Counsel submitted that the Claimant’s contract of employment with the 1st Defendant was not validly determined in accordance with his terms and conditions of employment. He submitted that the Claimant’s contract of employment with the Defendant is one with a statutory flavour which can only be determined by strict adherence to the statutory provisions citing Iderima v. Rivers State (2005) 7 SCNJ 493 at 505. He argued that the Defendant did not comply with the procedure in Rule 030303 of the Public Service Rules before compulsorily retiring the Claimant. Counsel submitted that the power or authority vested in the Board of the Defendant by PSR 030303 cannot without any express provision, be delegated to and or be performed by the Officer’s Disciplinary Committee (O.D.C).

[25] Replying on point of law, learned defence counsel drew the courts’ attention to a document attached to the Claimant’s final address that was not pleaded or admitted in evidence and submitted that the Claimant dumped the said document on the Court which cannot serve any useful purpose in the absence of oral evidence explaining its essence. He urged the court to disregard the document.

Decision

[26] I have carefully considered the processes filed, the evidence adduced, written submissions and authorities cited by the parties. I will first begin with the issue raised by learned defence counsel in the Defendant’s reply on points of law which is a preliminary issue: “whether the Claimant can at the close of evidence dump documents not pleaded by attaching same to his final address”. The answer is No. The said document does not form part of the records of this Court having not been pleaded, or admitted in evidence at the trial. It is hereby discountenanced.

[27] The issues that arise for determination are as follows:

1.      Whether the Claimant’s employment status is a master/servant relationship, or employment held at the pleasure of the employer?

2.       Whether the Defendant has established the reason it terminated the Claimant’s employment?

3.      Whether on the pleadings and evidence, the Claimant ought to be entitled to his claims?

[28] It is the law that parties and indeed the Court are bound by their pleadings, see BAC Electrical Co Ltd v Adesina (2020) 14 NWLR (Pt 1745) 548, Anyafulu v Meka (2014) LPELR-22336 SC, Kubor v Dickson (2013) 4 NWLR (Pt 1345) 534. The Claimant did not in his statement of facts plead that his employment is one with statutory flavor, neither did he plead that his right to a fair hearing enshrined in Section 36 (1) of the 1999 Constitution (as amended) was violated. In other words, there are no averments in the Claimant’s pleadings that his employment is one with statutory flavour, neither are there any averments by him that his fundamental right to fair hearing was breached. These are issues counsel to the parties have raised for the first time in their final addresses. Arguments of counsel in written address cannot be a substitute for pleadings or evidence, see Okwejiminor v Gbakeji [2008] ALL FWLR (Pt 409) at 447, Ayanwale v Odusanmi [2011] 12 MJSC (Pt 111) 1 at 9. Where an issue is raised by counsel for the first time in final address it should be disregarded by the Court, see Dodo v Solanke (2006) 9 NWLR (Pt 986) 447; and where a party leads evidence on facts not pleaded the Court will discountenance the evidence and place no reliance on it, see Anyafulu & Ors v Meka & Ors supra, Ogbogu v Ugwuegbu (2003) 10 NWLR (Pt 827) 189.  The submissions by counsel on the two issues not pleaded are hereby disregarded and discountenanced.

[29] The law is settled that when an employee complains that his employment has been unlawfully terminated, he has the burden not only to place before the court the terms and conditions of his employment but the manner in which the said terms or conditions were breached by the employer. The Supreme Court in Buka Modu Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 15, per Peter-Odili JSC stated the position of the law as follows:

What can be stated to be the rock solid position of the law with regard to an action by an aggrieved employee on the termination or dismissal from service is that to found his case there is no running away from pleading and proving his contract of service to substantiate his claim.

 Per Onnoghen JSC at 20:

Whether one is suing for wrongful dismissal from an employment with statutory flavor or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be plead (sic) but must be proved by evidence before a determination of the wrongful nature of his termination dismissal can be considered by the court.

[30] The Supreme Court in the earlier case of University Of Calabar v. Essien (1996) 10 NWLR (Pt 477) 225 at 257 para B-D stated the position of the law as follows:

In an action where a party seeks for a declaration that the termination of his employment was wrongful, null and void the most fundamental issue to put before the court is the condition of service. The aggrieved party must aver it as a cardinal point in his pleading and adduce evidence before the trial court on non-compliance with the terms of the condition of service in effecting the termination of his employment.

By these decisions of the Apex court, the terms and conditions of service under which an employee is employed is sine qua non in any claim for wrongful removal from service. Also see Nigeria Security Printing & Minting Plc v. Charles Umoh (2022) LPELR-56924(CA) 18-19, Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Umoh v ITF Governing Council (2001) 4 NWLR (Pt 703) 281, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630.

[31] The Claimant did not plead his terms and conditions of service with the Defendant. In the absence of averments in the pleadings on the terms and conditions of service, the Court cannot speculate. However, the documents related to the Claimant’s employment placed before the Court are his offer of employment (exhibit C1), promotion letter (exhibit C2), query (exhibit C3), reply to query (exhibit C4), invitation to disciplinary hearing (C5), notification of compulsory retirement (exhibit C6), demand letter (exhibit C7), defendant’s reply (C8), promotion letter dated 12th October, 2020 (exhibit C9), internal memo (exhibit C10), FIRS human resources policies and process (exhibit C11), warning letter (exhibit NI 1).

[32] The Defendant’s offer of appointment to the Claimant for the position of Gardener (exhibit C1) does not state the terms and conditions under which he is employed and does not make any reference to any other document. The Claimant’s promotion letter (exhibit C2) states that: “the Management of Federal Inland Revenue Service has approved your promotion to the post of OFFICER 1 (SLO9) in the Career Path of HR with effect from 01 January 2017.” It is also silent on the terms and conditions of service regulating his employment. The only proper conclusion to reach on the employment status and relationship between the Claimant and Defendant is that it is one of master-servant which is one of the 3 types of employment in Nigerian Labour jurisprudence; and I so hold.

[33] The law imposes on the employer a duty to justify the reason/s given for the termination of the Claimant’s appointment, see Olatunbosin v NISER Council [1988] 3 NWLR (Pt 80) 25. The Claimant’s letter of compulsory retirement (exhibit C6) is reproduced as follows:

 

Idoko Nicholas, IR: 16197                                                             18th January, 2021

Officer 1

NOTIFICATION OF COMPULSORY RETIREMENT

Following your disciplinary case with the service in respect to scandalous misconduct (drunkenness) and the consideration of your representation, Management has directed that you proceed on compulsory retirement with effect from 18th January, 2021.

Please note that by this letter you are entitled to Reward for Outstanding service as enshrined in the Human Resource Policies and Process (HRPP 10.5.1).

You are required to hand over all government properties in your possession i.e  Identity card, laptop/desktop, vehicle(s), and handover notes to your Head of Department/Office.

 

Bashiru Umar,

Director, Human Capital Management

For: Executive Chairman

[34] The reason given by the Defendant for the Claimant’s compulsory retirement is scandalous misconduct (drunkenness). The evidence before the Court reveals that the Claimant had been queried (exhibit D1, D2, D4, D5, D11) over the years spanning 2014 through to 2019 for drunkenness during official hours. He had been warned and counselled but there was no change in his attitude. By the Claimant’s own evidence, he admitted that on the 9th and 23rd May 2019, he was “intoxicated and looked drunk” during working hours. He admitted that he was queried and he appeared before the Officers Disciplinary Committee.

[35] Misconduct is defined in clause 5.3 of the Defendant’s Human Resources Policies and Processes (exhibits C11 & D16) as a specific wrong-doing or an improper behavior which is inimical to the image of the service and which can be investigated and proven. It may also lead to termination and retirement. It includes:

(a) Scandalous conduct such as:

(i) immoral behaviour;

(ii) unruly behaviour;

(iii) Drunkenness;

(iv) …….

 

 The Claimant’s offence of drunkenness falls within clause 5.3 (a) of the Defendant’s Human Resources Policies and Processes which includes drunkenness. The provision further allows for the wrong doing to be investigated and also proven. The evidence reveals that the Claimant’s drunkenness during his official working hours was investigated and proven.

[36] The observations/findings of the disciplinary committee are reproduced:

·        He admitted that he takes Agbo (Local Herbs) mixed with Local Gin.

·        In the past, he also admitted that he reported late to work on 22nd April 2015 due to Local Herbs (Agbo) which contains little Alcohol he took because he was treating malaria.

·        The Officer has been exhibiting scandalous acts for a very long time and has refused to change.

·        In response to a query issued to him on 28th May 2019, he claimed he is treating typhoid fever and that is why he has been taking Agbo (Local Herbs) mixed with Gin.

·        Efforts have been made to put him on track with issuance of queries, advice, several verbal and written warnings but the outcome has not been impressive.

·        It is worthy to note that the officer after being queried on 5th May, 2015 was invited to appear before the officers committee where the committee recommended that he should be warned, counseled and placed on rehabilitation for (3) three months which was approved by Management.

·        In line with policy, the sanction for his misconduct is termination or retirement.

·         In view of the fact that the officer has put in 22 years in service, it is recommended that the officer be retired from service.

[37] Following the recommendations of the committee, the Defendant exercised its disciplinary powers as the employer, and approved the recommendations of the committee. The Claimant was properly, and compulsorily retired for acts of scandalous misconduct. From the totality of the evidence, the Defendant has established to the satisfaction of the Court the reason it compulsorily retired the Claimant. The Claimant’s scandalous misconduct of drunkenness in the office is grave and weighty; it has eroded and undermined the confidence reposed in him by the Defendant to carry out his duties. I am satisfied that the Defendant has justified the reason it compulsorily retired the Claimant. I hold that the Claimant’s compulsory retirement by the Defendant is lawful. Consequently, the reliefs sought by the Claimant are hereby refused having failed to prove his case.

[38] The case is hereby dismissed in its entirety. Costs awarded the Defendant in the sum of N100,000.00.

Judgment is entered accordingly.

                                                ____________________________

                                                Hon Justice O.A.Obaseki-Osaghae