IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

DATE: 28^TH JULY, 2026                        

SUIT NO: NICN/ABJ/467/2024

BETWEEN:

OKORO JOSEPH O. N. -----                                              CLAIMANT

AND

NATIONAL BIOTECHNOLOGY 

DEVELOPMENT AGENCY --- DEFENDANT

 

REPRESENTATION:

 

BOSEDE F. OGUNDARE ESQ., WITH CHIBUIKE OYOYO ESQ., AND S. O. ADENU ESQ., FOR THE CLAIMANT.

E. W. IKPI ESQ., FOR THE DEFENDANT.

 

JUDGMENT

INTRODUCTION

 

a. A Declaration that the termination of the Claimant’s appointment on the ground of negligence is unlawful, wrongful, illegal, null and void abinitio as he has always been in the office and has never been queried for being absent.

b. A declaration that the termination of the appointment of the claimant without an invitation or appearance before the disciplinary committee breached his fundamental right to fair hearing as enshrined under the 1999 constitution and is thus unlawful, wrongful, illegal, null and void.

c. An Order reinstating the claimant back to work with full payment of his salary and allowances with effect from the date of the termination of his appointment to date.

d. An order directing the Defendants to pay the claimant the sum of N10,000,000(Ten Million Naira) being general damages for unlawfully terminating the claimant employment and causing him untold hardship and trauma.

e. And any other order as this Honourable court may deem fit in the circumstances.

 

 

BACK GROUND FACTS OF THE CASE

 

 

CLAIMANT’S STATEMENT OF FACTS

 

 

DEFENDANT’S STAMENT OF DEFENCE

 

 

COMMENCEMENT OF HEARING

 

 

EVALUATION OF EVIDENCE

 

 

 

 

 

 

 

 

 

 

 

 

CLAIMANT’S COUNSEL ARGUMENTS

 

18. Learned Counsel to the Claimant, Bosede F. Ogundare Esq. and Oyoyo Chibuike Esq. (Chief Legal Aid Officers), submitted as follows on the issues identified for determination.
    1. Whether the suit is statute-barred under Section 2(a) of the Public Officers Protection Act —
19. Learned Counsel to the Claimant submitted that the suit is not statute-barred and that the Claimant's cause of action was preserved by the internal grievance mechanisms he initiated timeously. Counsel drew the Court's attention to the fact that the sole witness of the Defendant, Mr. Daniel Olobo Omachie, admitted under cross-examination that he acknowledged and signed, on 5th September 2023, the Claimant's 'Appeal for Suspension of Dismissal' dated 17th August 2023. Counsel submitted that this document, already admitted in evidence, confirms that the Claimant challenged the dismissal letter of July 2023 well within the three-month statutory window prescribed by Section 2(a) of the Public Officers Protection Act. Counsel further submitted that the law is settled that where a statute or contract of service provides for internal appeals, a Claimant must exhaust those remedies before approaching the court, and that time spent pursuing an internal administrative remedy required by law may not be counted against a Claimant for the purposes of limitation, relying on Eboigbe v. NNPC [1994] 5 NWLR (Pt. 347). Counsel also relied on University of Ilorin v. Adeniran [2007] 6 NWLR (Pt. 1031) 498, for the proposition that when an employee is pursuing internal administrative remedies to reverse his dismissal, the injury is deemed to be continuing and the limitation period under the Public Officers Protection Act may only begin to run after the final decision of the administrative body is communicated to the employee. Counsel submitted that since the Defendant received and acknowledged the Claimant's appeal on 5th September 2023, the Defendant cannot now claim the action is statute-barred, relying on Obiefuna v. Okoye [1961] 1 All NLR 357 for the proposition that a continuance of injury exists as long as the act complained of is being actively contested through proper administrative channels. Counsel further submitted that the intent of Section 2(a) of the Public Officers Protection Act is to prevent stale claims and not to shut out a Claimant who is actively seeking redress through the Defendant's own established protocols, and that to hold otherwise would be to penalise the Claimant for attempting an amicable settlement as encouraged by law. Counsel additionally submitted that contracts of employment are not simple contracts to be stifled by short, restrictive limitation periods, and that the Defendant cannot invoke Section 2(a) of the Public Officers Protection Act to circumvent the statutory and constitutional duties owed to the Claimant. Counsel relied on the Third Alteration Act 2010 to the Constitution of the Federal Republic of Nigeria 1999 (as amended), submitting that the National Industrial Court was vested with specialised jurisdiction to deal with labour matters in a way that ensures international best practices and equity. Counsel placed heavy reliance on the decision in Dr. Mrs. Regina Eze v. Federal Polytechnic Ohodo, Enugu State & 3 Ors (NICN/EN/13/2025), submitting that in that case this Honourable Court held that reading Section 2 of the Public Officers Protection Act into contracts of statutory employment is unfair, unreasonable, and disproportionate, that Section 2(a) of the Act was declared unconstitutional, null, and void to the extent that it hinders access to justice in labour matters, that labour relations are sui generis and must be shielded from statutes that run counter to fundamental employment rights, and that the three-month grace period is unreasonably short and cannot be used as a shield by public employers to escape liability for unlawful dismissals. Counsel further submitted, relying on J.O. Ayinde v. Samuel A. Adigun (1993) 3 NWLR (Pt. 313), that the Supreme Court had already expressed concern that the time limit in the Public Officers Protection Act is so short as to constitute a hindrance to the constitutional right of access to court. Counsel submitted that even if the Public Officers Protection Act were applicable, which was vehemently denied, the Defendant could not hide behind it because the Claimant took proactive steps by writing an appeal for suspension of dismissal immediately upon receiving the dismissal letter, and that the Defendant's failure to respond to this internal appeal created a continuance of injury, such that the limitation clock could not have run against the Claimant while he was actively seeking resolution within the administrative framework of the Defendant. Counsel urged the Court to dismiss the Defendant's plea of statute bar and to apply punitive measures against the Defendant.
    2. Whether the Defendant complied with the provisions of the Public Service Rules, the principle of natural justice, and fair hearing in the termination of the Claimant's appointment — 
20. Learned Counsel to the Claimant submitted that the Claimant's dismissal is fundamentally flawed, null, and void. Counsel submitted that it is a settled principle that where an employment is protected by statute, the procedure for dismissal must be strictly followed and any deviation renders the act ultra vires. Counsel submitted that the Claimant was never served a query, issued a warning, or invited to face a disciplinary committee, and that this constitutes a direct violation of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel relied on Iferi Ejika v. The Minister of Labour and Productivity (2023), submitting that this Honourable Court held in that case that dismissal without an opportunity to be heard is unfair, unconstitutional, and illegal. Counsel also relied on Egbo Juliet v. Volcano Peak Court Nigeria Limited (2020), submitting that the Court declared in that case that failure to issue a query before termination based on allegations of misconduct constitutes a gross violation of fair hearing. Counsel further submitted that the Claimant's appointment was purportedly terminated for absence from duty, yet the Defendant bypassed the mandatory disciplinary steps, relying on Longe v. First Bank of Nigeria (2010) 6 NWLR (Pt. 118) and CBN v. Igwillo (2007) 14 NWLR (Pt. 1054), where the Supreme Court emphasised that statutory provisions in employment cannot be waived and that strict adherence is a condition precedent to a valid dismissal. Counsel submitted that the Defendant's case regarding the service of queries collapsed during the cross-examination of their sole witness, and that the witness's admissions under cross-examination demonstrated that the Claimant was not properly served with any query or invitation to appear before a disciplinary committee. Counsel submitted that the Claimant's promotions in 2020 and 2022 are probative contradictions that rebut the Defendant's allegation of persistent misconduct, arguing that an employee who was consistently absent from duty without leave could not have been promoted, and that the promotions constitute an implied condonation of any alleged absence. Counsel urged the Court to hold that the dismissal is unlawful and to grant the reliefs sought by the Claimant.
    100. Whether probative contradictions in the Claimant's promotion constitute a rebuttal to the alleged misconduct — 
21. Learned Counsel to the Claimant submitted that the Claimant's confirmed promotions in June 2020 to Librarian I on CONRAISS Level 8 and in December 2022 to Senior Librarian on CONRAISS 9 are irreconcilable with the Defendant's allegation that the Claimant had been persistently absent from his duty post since 2018. Counsel submitted that the Defendant cannot simultaneously promote an employee and maintain that the same employee was guilty of gross misconduct warranting dismissal, and that the promotions amount to a waiver or condonation of any alleged infraction.
    500. Whether the Claimant deserves appropriate remedies for unlawful dismissal — 
22. Learned Counsel to the Claimant submitted that the Claimant is entitled to reinstatement to his position with full payment of his salary and allowances from the date of his dismissal to date, and to the sum of Ten Million Naira (N10,000,000.00) as general damages for the unlawful termination of his employment and the untold hardship and trauma caused to him. Counsel urged the Court to grant all the reliefs sought.

 

 

DEFENDANT’S COUNSEL ARGUMENTS

 

 

24. Learned Counsel to the Defendant submitted that the suit is statute-barred and that this Court consequently lacks jurisdiction to entertain it. Counsel submitted that the three yardsticks for determining whether an action is statute-barred are: the date the cause of action accrued, the date the action was instituted, and the limitation period prescribed by the relevant statute, relying on Mr. Michael Idachaba & Ors v. University of Agriculture, Makurdi & Ors (2021) Legalpedia (SC) 11894, where the Supreme Court so held. Counsel submitted that the Claimant himself stated in paragraph 8 of his Statement of Claim that he received his letter of dismissal in July 2023, that the Writ of Summons shows the suit was instituted on 16th December 2024, and that Section 2(a) of the Public Officers Protection Act prescribes a limitation period of three months. Counsel reproduced Section 2(a) of the Public Officers Protection Act, which provides that an action shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof. Counsel submitted that three months from July 2023 is October 2023, and that the Claimant therefore had until 31st October 2023 to bring this action but failed to do so, filing the suit instead on 16th December 2024, one year and five months after the cause of action arose. Counsel relied on Mr. Michael Idachaba & Ors v. University of Agriculture, Makurdi & Ors (2021) Legalpedia (SC) 11894, where the Supreme Court held that the effect of a limitation law is that it removes the right of action, the right of enforcement, the right of judicial relief, and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. Counsel also relied on Aroyame v. Governor of Edo State (2023) 1 NWLR 549, where the Supreme Court, per Kekere-Ekun JSC, enforced the provisions of the Public Officers Protection Law of Edo State in a contract of service matter and held that the matter was statute-barred, and that the effect of a statute of limitation is to denude a plaintiff of his action, that is his right of enforcement and right to judicial relief. Counsel further submitted that the Claimant's claims are stale and contrary to the overriding purpose of statutes of limitation, relying again on Mr. Michael Idachaba & Ors v. University of Agriculture, Makurdi & Ors (2021) Legalpedia (SC) 11894, where the Apex Court held that the overriding purpose of limitation laws is expressed in the Latin phrase interest rei publicae ut sit finis litium, that litigation shall be automatically stifled after a fixed length of time irrespective of the merits of a particular case, and that the purpose is also to prevent plaintiffs from prosecuting stale demands and to protect defendants from disturbance after a long lapse of time when they have grown accustomed to the position or lost the evidence to defend it, citing Atunrbase v. Sunmola (1985) 1 NWLR (Pt. 1) 105 and Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649. Counsel relied on Officer in Charge, G.P.G. v. Gudu (2010) 2 NWLR Part 1177 page 148, where the Court held that limitation law deprives a court of law of jurisdiction and that the lack of jurisdiction robs the court of the competence to hear and decide the matter, and also on Ajayi v. Adebiyi (2012) 11 NWLR Part 1310 page 137. Counsel urged the Court to hold that the suit is statute-barred and to dismiss it accordingly.
    2. Whether, in view of the facts and circumstances of this case, the Claimant's dismissal is valid — 
25. Learned Counsel to the Defendant submitted that the Claimant's dismissal is valid. Counsel submitted that prior to the dismissal, the Defendant issued the Claimant a query dated 18th March 2019 (Exhibit DOC3), which drew the Claimant's attention to the fact that he had been absent from office from 2nd July 2018 to 18th March 2019 without official permission and requested him to explain within 24 hours why disciplinary action should not be taken against him, and that the Staff Attendance Logbook (Exhibit DOC4) attests to the Claimant's abstention from work without approval. Counsel submitted that the Claimant was in the habit of not acknowledging internal memos and hence refused to acknowledge receipt of the query that was duly served on him, as stated in paragraph 6(a) and (b) of the Statement of Defence and paragraphs 16 and 17 of the Written Statement on Oath of DW1. Counsel submitted that the Claimant did not file a Reply to the Statement of Defence to deny the averments in paragraph 6(a) and (b) thereof, and that the Claimant is therefore deemed to have admitted those averments, relying on Yaro v. Manu & Anor (2014) LPELR-24181(CA), where the Court held that where the defence raises new issues in the Statement of Defence and the plaintiff fails to file a reply, the plaintiff will be deemed to have admitted same, and on King v. INEC & Ors (2008) LPELR-4403(CA), where the Court held that failure to file a reply to pleaded facts means the appellant has not denied those facts. Counsel submitted that the Defendant constituted a three-man Disciplinary Committee vide an Internal Memo dated 19th April 2023 (Exhibit DOC5), and that an Internal Memo of the same date (Exhibit DOC6) was sent to the Claimant inviting him to appear before the Committee on 26th April 2023, giving him six days' notice, but that the Claimant failed to attend, citing ill health as an excuse which was unfounded, as recorded in the Report of the Disciplinary Committee dated 9th May 2023 (Exhibit DOC7). Counsel further submitted that a Review Committee drawn from the Federal Ministry of Innovation, Science and Technology and the Federal Civil Service Commission was thereafter constituted to review the Report of the Disciplinary Committee (Exhibit DOC8), that the Review Committee also tried to summon the Claimant to defend himself but to no avail, and that the Review Committee recommended that the provisions of PSR 030401(e), dealing with absence from duty without leave, be invoked against the Claimant. Counsel submitted that the Claimant, having been afforded ample opportunity to defend himself through a query and invitations by both the Disciplinary Committee and the Review Committee, cannot be heard to allege that the Defendant did not give him fair hearing before his dismissal, relying on MFA & Anor v. Inongha (2014) LPELR-22010(SC), where the Apex Court held that once a party has been afforded the opportunity to present his case and fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached, and on Nwokocha v. AG of Imo State (2016) LPELR-40077(SC), where the Supreme Court held that where a party is afforded every opportunity to present his case and fails to take advantage of such opportunity, he cannot later contend that his right to fair hearing was breached. Counsel urged the Court to hold that the dismissal is valid and to dismiss the suit.

 

COURT’S DECISION

 

 

1. Whether, having regard to Section 2(a) of the Public Officers Protection Act and the facts and circumstances of this case, this suit is statute-barred so as to deprive this Court of jurisdiction to entertain it.

2. Whether the Defendant complied with the applicable provisions of the Public Service Rules and the constitutional requirements of fair hearing and natural justice in the dismissal of the Claimant, and whether the said dismissal is accordingly valid.

3. If the dismissal is found to be unlawful, what reliefs, if any, is the Claimant entitled to?

 

RESOLUTION OF ISSUE ONE

 

 

28. In resolving this issue, it is necessary to first state that the Defendant, the National Biotechnology Development Agency, is a public institution established by the National Biotechnology Development Agency (Establishment) Act 2022, and as such, qualifies as a public officer. This is in accordance with the long-settled principal authority of Ibrahim v. Judicial Service Committee, Kaduna State & Ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20, which established that public institutions and bodies are "public officers" entitled to the protection afforded by the Public Officers Protection Act. The law is equally settled that in determining whether an action is statute-barred, the Court must dispassionately examine the originating process, specifically the complaint and the statement of facts, to ascertain when the cause of action arose and compare it with the date when the suit was filed. This principle was recently reiterated by the Supreme Court in Olateju v. Commissioner for Lands & Housing, Kwara State & Ors [2024] LPELR-62589(SC) and Incorporated Trustees of Roman Catholic Diocese of Kano v. Ministry of Lands and Physical Planning, Kano State & Ors [2024] LPELR-80084(CA), which mandate that the Court must confine itself to the processes filed by the Claimant without importing external averments from the Defendant's processes.
29. On the face of the originating processes filed by the Claimant on 16th December 2024, the Claimant received his letter of dismissal (Exhibit DOC10) sometime in July 2023. The receipt of this dismissal letter is the definitive act that completed the alleged wrong and gave the Claimant his cause of action. Under Section 2(a) of the Public Officers Protection Act, a plaintiff is granted a mandatory period of three months within which to institute an action against a public officer for any alleged neglect, default, or act done in the execution of public duty. Where the originating process is filed outside this three-month window, the action becomes unenforceable and the Court is completely divested of jurisdiction to entertain it, as held by the Supreme Court in Owoniyi v. Aiyewumi & Ors [2025] LPELR-81500(SC) and University of Port Harcourt v. Mr Edwin Chira Nwuzor [2024] LPELR-62382(SC).
30. The Claimant, however, argues that his suit is saved from being statute-barred on the ground that he timeously initiated internal administrative appeals. The record shows that the Claimant wrote an appeal for the suspension of his dismissal on 17th August 2023, which was signed and acknowledged by the Defendant's witness, Mr. Daniel Olobo Omachie (DW1), on 5th September 2023. The Claimant further caused his counsel from the Legal Aid Council of Nigeria to write letters of review and pre-action notices dated 28th February 2024 and 27th May 2024, to which the Defendant replied on 19th June 2024. The Claimant contends that these administrative appeals and the Defendant's failure to respond to his initial appeal created a "continuing injury" or administrative suspense that stopped the running of the limitation period.
31. This argument, though appealing, is completely contrary to the established principles of limitation law. The law is clear that once a limitation period begins to run, it does not cease to run merely because the parties are engaged in internal negotiations, administrative appeals, or discussions. In Owoniyi v. Aiyewumi & Ors [2025] LPELR-81500(SC), Hon. Justice Ogunwumiju, JSC, citing Eboigbe v. NNPC [1994] 5 NWLR (Pt. 347) 649, held that: "when the period of limitation begins to run, it does not cease to run merely because the parties engaged in discussions, consultations or negotiations." Similarly, in Okebu v. Delta State Judicial Service Commission & Anor [2023] LPELR-60590(CA), His Lordship Sirajo, JCA, held that: 

 

"For purposes of limitation law, intervening acts, such as the letters written by the Appellant... pleading for review... do not count when the period of limitation is being computed, unless provision is made in the rules that before resort to Court, some laid down internal mechanisms must be exhausted." 

 

32. The Claimant has failed to show this Court any statutory provision or rule of the Defendant's agency making the exhaustion of such internal administrative appeals a mandatory statutory condition precedent to the filing of an action in court. Consequently, the letters written by the Claimant and his counsel did not stop the limitation clock from running. Even if one were to erroneously compute the limitation period from the date of the Defendant's final administrative response of 19th June 2024, the three-month period would have elapsed on 19th September 2024. The filing of this suit on 16th December 2024 is still several months out of time under any calculation.
33. Furthermore, this Court must address the Claimant's reliance on the decision in Dr Mrs Regina Eze v. Federal Polytechnic, Ohodo, Enugu State & Ors (unreported Suit No. NICN/EN/13/2025, ruling delivered on 19th December 2025), which purported to hold that the Public Officers Protection Act is unconstitutional, discriminatory, and inapplicable to public employment disputes. I have carefully reviewed the reasoning in that decision and find myself unable to adopt or follow it. First, the question of the constitutionality of the Public Officers Protection Act was not an issue raised or prayed for by the parties in that suit, which was a simple case of unlawful termination. The pronouncements in Regina Eze(supra) striking down the Public Officers Protection Act as unconstitutional are therefore at best obiter dicta and lack binding force, as established in Kente v. Bwacha & Ors [2023] LPELR-59743(SC).
34. Second, the proposition in Regina Eze (supra) that the Public Officers Protection Act is unconstitutional because it lacks provisions for the extension of time or violates the International Labour Organisation's Termination of Employment Convention, 1982 (No. 158) is legally unsustainable. Nigeria has not ratified Convention No. 158, and an unratified convention cannot be applied to override a valid municipal statute. Even within the framework of international labour standards, the ILO itself recognizes and utilizes strict limitation periods. Under Article VII (2) of the Statute of the Administrative Tribunal of the International Labour Organization (ILOAT), which handles employment disputes for the ILO's own employees, it is expressly provided that: "To be receivable, a complaint must also have been filed within ninety days after the complainant was notified of the decision impugned." If the ILO itself prescribes a strict ninety-day or three-month limitation period for its own employees, it is impossible to argue that the three-month limitation period under Section 2(a) of the Public Officers Protection Act is "undenied," "unreasonable," or "contrary to international best practices." Many member states of the ILO, such as Armenia and Mexico, prescribe even shorter limitation periods of two months or one month for filing unlawful termination claims, and these have never been declared to violate international labour standards.
35.  Third, the Supreme Court has repeatedly affirmed that the Public Officers Protection Act applies to public contracts of service and employments with statutory flavor. While there was a historical oscillation in the jurisprudence—with National Revenue Mobilisation Allocation and Fiscal Commission & Ors v. Ajibola Johnson & Ors [2019] 2 NWLR (Pt. 1656) 247 SC holding that limitation laws do not apply to employment contracts, and subsequent cases like Abubakar Abdulrahman v. NNPC [2020] LPELR-55519(SC) and Philip Ikhanoba Aroyame v. The Governor of Edo State & Anor [2022] LPELR-57819(SC) holding that they do apply—the matter has now been decisively resolved. In the recent leading judgments of the Supreme Court in Dr Moses U. Anolam v. The Federal University of Technology Owerri (FUTO) & Ors [2025] LPELR-80027(SC); [2025] 5 NWLR (Pt. 1984) 651 SC and Okoronkwo v. INEC [2025] LPELR-80425(SC); [2025] 8 NWLR (Pt. 1991) 131, the Apex Court firmly departed from the older line of cases. In Anolam v. FUTO (supra), Hon. Justice Adah, JSC, held that: "the Public Officers' Protection Act is applicable to issues of employment with statutory flavour." Under the doctrine of stare decisis, where there are conflicting decisions of the Supreme Court, the lower courts are bound to follow and apply the most recent decision of the Apex Court, as held in Edeoga & Anor v. INEC & Ors [2023] LPELR-61806(SC).
36. The Claimant's action was commenced on 16th December 2024, which is approximately seventeen months after his dismissal in July 2023. This is way outside the mandatory three-month limitation period prescribed by Section 2(a) of the Public Officers Protection Act. I therefore find and hold that this suit is statute-barred, and this Court is consequently divested of jurisdiction to entertain it.

 

RESOLUTION OF ISSUE TWO

 

 

38. Although I have already found that this Court lacks jurisdiction to entertain this suit on the merits because it is statute-barred, it is good judicial practice for a trial court to express its views on the alternative substantive issues in the event that an appellate court takes a different view on the question of jurisdiction. The Claimant's employment with the Defendant is governed by the Public Service Rules, which clothes the contract with statutory flavor. The legal consequence is that the Defendant must strictly adhere to the disciplinary procedure laid down in the Public Service Rules before the Claimant can be validly dismissed.
39. The Claimant asserted in his testimony that he was never issued any warning, served with any query, or invited to appear before any disciplinary committee, and that his dismissal came as a complete surprise. However, the documentary evidence placed before this Court by the Defendant heavily contradicts the Claimant's assertions. The Defendant tendered a warning letter dated 8th March 2018 (Exhibit DOC1), a formal query dated 18th March 2019 (Exhibit DOC3) regarding unauthorized absence from duty from 2nd July 2018 to 18th March 2019, and the Staff Attendance Logbook (Exhibit DOC4). The Defendant's witness, DW1, testified that the Claimant habitually refused to sign or acknowledge receipt of internal correspondence, including the query. Crucially, the Claimant did not file any Reply to the Defendant's Statement of Defence to deny these specific allegations of service and his refusal to acknowledge them. Under the rules of pleading, where a defendant raises new and specific facts in its statement of defence and the plaintiff fails to file a reply, those facts are deemed admitted and uncontroverted, as held in Yaro v. Manu & Anor [2014] LPELR-24181(CA).
40. Furthermore, the Defendant established that it constituted a three-man Disciplinary Committee via an Internal Memo dated 19th April 2023 (Exhibit DOC5) and invited the Claimant to appear before it via an Internal Memo of the same date (Exhibit DOC6). The Report of the Disciplinary Committee dated 9th May 2023 (Exhibit DOC7) records that the Claimant failed to attend and instead sent an excuse of ill health, which the Committee investigated and found to be unfounded. A subsequent Review Committee, comprising representatives from the Federal Ministry of Innovation, Science and Technology and the Federal Civil Service Commission (Exhibit DOC8), also attempted to hear from the Claimant but he failed to appear, leading to the recommendation to invoke Public Service Rule 030401(e) for dismissal (Exhibit DOC9). The law is clear that where a party has been afforded a sufficient opportunity to state his case and fails or refuses to utilize it, he cannot subsequently complain of a breach of fair hearing, as held in Nwokocha v. AG of Imo State [2016] LPELR-40077(SC).
41. However, the Claimant raised a significant point regarding his promotions. The record shows that the Claimant was promoted to Librarian I in June 2020 and to Senior Librarian in December 2022. The Defendant's allegation of continuous and persistent absenteeism dates back to 2018. Under our jurisprudence, the act of promoting an employee operates as an implied condonation of any previous misconduct or infraction. An employer cannot process, approve, and deliver promotions to an employee and subsequently use the pre-promotion infractions as grounds for dismissal, as the slate is deemed wiped clean by the promotions. In Federal Civil Service Commission v. Laoye [1989] 2 NWLR (Pt. 106) 652, the Supreme Court held that once an employer condones a misconduct, it cannot subsequently resurrect that misconduct as a ground for disciplinary action. 
42. To validly dismiss the Claimant in July 2023, the Defendant was under an obligation to establish acts of misconduct or absenteeism occurring ‘after’ his last promotion on 5th December 2022, and to issue a fresh query specifically addressing those post-promotion infractions. The Defendant failed to show that any such fresh query was issued to the Claimant after December 2022. Consequently, if this Court had jurisdiction, the disciplinary proceedings initiated in April 2023 based on historical, condoned absences would have been declared procedurally defective and invalid. However, since this Court has already held under the first issue that the suit is statute-barred, the Claimant's action is completely dead in law, and this Court lacks the jurisdictional competence to grant any declaration of invalidity on the merits.

 

RESOLUTION OF ISSUE THREE

 

 

 

 

 

 

 

…………………

Hon. Justice E. D. Subilim

JUDGE