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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON WEDNESDAY 08TH DAY OF MAY, 2024

BEFORE HIS LORDSHIP: HON. JUSTICE SINMISOLA O. ADENIYI

SUIT NO: NICN/KD/46/2018

 

BETWEEN:

ISTIFANUS KATO NYAM ………………………………………………... CLAIMANT

AND

KADUNA STATE URBAN PLANNING

AND DEVELOPMENT AGENCY (KASUPDA) …………………………… DEFENDANT

J U D G E M E N T

The Claimant commenced the instant action vide a Complaint and Statement of Facts filed on 20/12/2018 and by Amended Statement of Facts deemed filed by leave of Court on 08/11/2019, his claims against the Defendant are set out as follows:

1.    A DECLARATION that the termination of the Claimant from the service of the Defendant as contained in letter Ref No: PERJSEC.1854/VOL1/ of 12th September 2018 is wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.

2.    A DECLARATION that the decision of the Defendant’s Board Meeting held on 1st July, 2018 which culminated in the termination of the  Claimant’s employment is contrary to the principles of natural justice, equity and good conscience, and a deliberate and calculated infraction of the Claimant’s right of fair hearing as contained in Section 36 of the 1999 Constitution as Amended, Chapter 4 of the Kaduna State Public Service Rules 2005 and Guidelines for Appointments, Promotion and Discipline of Staff Rules issued by the Kaduna State Civil Services Commission and is null and void and of no effect whatsoever.

3.    A DECLARATION that the employment of the Claimant with the Defendant is still subsisting notwithstanding the purported termination.

4.    AN ORDER commanding the Defendant to reinstate the Claimant to its services and to pay the Claimant his full salaries in the amount of N51,183.85k (net pay) from the month of September 2018, the date of his termination up to the date of judgement and all other entitlements, allowances and benefits of his and promote him as due.

5.    General and Special Damages to the tune of N1,000,000.00 (One million Naira only) for conducting themselves in a manner capable of undermining the reputation of the Claimant and for the psychological trauma the Claimant is being put through.

6.    Cost of filing this suit and prosecuting this action as well as legal costs.

2. The Defendant filed a Joint Statement of Defence on 19/09/2019 and with the leave of Court, an Amended Joint Statement of Defence was filed on 03/12/2019. I should remark that the Defendant’s objection challenging the jurisdiction of the Court was overruled on 27/02/2019, thereafter, parties explored a possibility of out of Court settlement. However, the case proceeded to trial when settlement was reported to have broken down.

At the plenary trial, the Claimant testified in person and two witnesses were subpoenaed to testify for the Claimant. A total of seventeen (17) sets of documents were tendered as exhibits to further substantiate the Claimant’s case; whilst the witnesses were all subjected to cross-examination by learned Defendant’s counsel, after which his case was closed on 02/11/2021.

3. The records of the proceedings of the Court bear it out that several

adjournments were granted at the instance of the Defendant to defend the action, however, in spite of the adjournments, the Defendant failed to defend the case. Therefore, upon the application by the learned Claimant’s counsel, the Defendant was foreclosed from defending the action on 17/05/2023. Thereafter, parties were ordered by the Court to file their final written addresses as prescribed by the provisions of Order 45 of the Rules of this Court.

4. Expectedly, only the Claimant filed a written address, deemed filed on 16/10/2023, wherein his learned counsel, B. P. Achi, Esq., identified two (2) issues as having arisen for determination in this suit, namely:

a)        Whether with regards to the various queries issued to the Claimant and consequent response to the queries by the Claimant, the Defendant was justified to terminate the employment of the Claimant on grounds of misconduct?

b)        Having regards to the principles enunciated in Eze Vs Unijos [2021] 2 NWLR (Pt1760) 208, whether the Defendant accorded the Claimant fair hearing before purportedly terminating the employment of the Claimant, bearing in mind the provisions of Rules 04305 and 04306 of the Kaduna State Government Public Service Rules (2005), Guidelines 22, 23 and 24 of the Guidelines for the Appointment, Promotion and Discipline of Kaduna State Civil Service Commission?

5. Upon proper examination of the pleadings filed in this suit; the totality of the evidence led on the record, including the documents tendered, my view is that the critical issue germane for determination in this suit, without prejudice to the issues formulated by learned counsel, could be reframed broadly as follows:

          “Whether the Claimant clearly established that his termination from the

employment of the Defendant was unlawful to entitle him to the reliefs being sought in this suit?”

6. As a starting point, permit me to state that the legal implication of the failure of the Defendant to call evidence in defence of the claims is that the Defendant is presumed to have admitted the case made against it by the Claimant. See: Okoebor Vs Police Council [2003] 12 NWLR (Pt 834) 444; Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd [2006] 8 NWLR (Pt 983) 585

The law, however is that, this does not on its own, translate to automatic victory for the Claimant against the Defendant. This is because a Claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of evidence by the Defendant does not exonerate the responsibility on a Claimant to prove his claim. Harka Air Services Ltd Vs Keazor [2006] 1 NWLR (Pt 960) 160; Ogunyade Vs Oshunkeye [2007] 15 NWLR (Pt 1057) 218.

7. It is a universal evidential principle that he who asserts proves his assertion; he who claims proves his claim. It is needless to cite authorities for this well-known principle. It is also settled law, that the onus is squarely on a Claimant, in an action for unlawful dismissal or termination of appointment to prove the existence of the contract of employment, the terms and/or conditions thereof and how those terms and/or conditions were breached by the employer.

See Oloruntoba - Oju Vs Abdul - Raheem [2009] All FWLR (Pt 497) 1 at 42; Imasuen Vs University of Benin [2011] All FWLR (Pt 572) 1791 at 1809.

8. The Claimant testified that he was employed by the Defendant as a Town Planning Officer II. According him, upon his transfer to Zaria in 2017, he received an oral reprimand for acting in his official capacity and giving permission for building at Plot 17B, Western Way, Zaria being land within the category of land as stated by Kaduna State Geographic Information Service (KADGIS) and as contained in the publication of the Daily Trust Newspaper of 12th July, 2017. The Claimant testified further, that upon the oral instruction of the General Manager of the Defendant, the building permission/approval was withdrawn but on 03/05/2017, a written query was issued to him over the building approval that had been withdrawn. The Claimant replied the query and after about a month, a letter of warning was issued again over the building approval.

9. The Claimant testified further, that after he was deployed back to Kaduna, the Secretary to the State Government held a meeting with the staff of the Defendant; that at the meeting, three of the members of staff of the Defendant were recommended to be issued queries for improper discharge of their duties but the committee constituted for the investigation, without a formal query included the Claimant and that while on annual leave, another committee was constituted and another query was again issued by the new committee.

10. It is the further testimony of the Claimant that while still awaiting the outcome of the queries or the reports of the committees, he received a letter of suspension for one month without pay, that is between 01/01/2018 – 31/01/2018, this being the outcome of the second committee; that while still serving the suspension, the third committee, issued another letter of indefinite suspension and while on indefinite suspension, he received a letter of termination of his appointment on 20/09/2018. The Claimant appealed against his unlawful termination of his appointment and contends that the queries were maliciously issued; that the committees were improperly constituted contrary to the Public Service Rules and the proceedings of the committees grossly violated his right of fair hearing as prescribed by the Guidelines for Appointments, Promotion and Discipline of Staff of the Kaduna State Civil Service Commission.

11. Abdullai Idris and Lawal Yusuf, the Head of Administrative Department and

the Chief Town Planning Officer of the Defendant were subpoenaed and they testified as CW2 and CW3 respectively. Whilst CW2 stated the procedure for inaugurating and constituting investigation and disciplinary committee in his testimony, CW3, on his part stated the procedure for approval or permission for development of land.

12. To further support his case, the following documents were admitted in       

evidence:

i.                    Letter of offer of temporary appointment and Letter of confirmation of appointment - Exhibit C1 and Exhibit C2.

ii.                 Queries dated 03/05/2016 and 22/12/2017 - Exhibits C3 and C3A.

iii.               Letter of warning and letters of suspension dated 09/06/2017, 27/12/2017 and 17/01/2018 - Exhibits C4, C4A and C4B.

iv.               Letter of termination of appointment dated 12/09/2018 - Exhibit C5.

v.                 Minutes of Meeting held at the Office of the Secretary to the State Government on 03/08/2017 - Exhibit C6.

vi.               Interim Report on the demolition notice issued on Constituency project at Hunkuyi on 02/08/ 2017 - Exhibit C7.

vii.            Report of the Committee set up to investigating allowing of a development to be erected up to painting level at Hunkuyi and Kudan towns - Exhibit C8.

viii.          Committee’s report on the investigation of the alleged negligence of duty by TPL Istifanus Kato Nyam - Exhibit C9.

ix.               Reply to Queries dated 04/05/2017 and 22/12/2017 - Exhibits C10 and C10A.

x.                  Attendance list of 03/08/2017 - Exhibit C11

xi.               Letter of withdrawal of planning permission dated 02/05/2017

- Exhibit C12.

xii.             Letter of appeal of termination from service dated 18/10/2018 – Exhibit C13.

xiii.          Notice to owners of undeveloped and uncompleted properties – Exhibit C14.

xiv.          Reply of Defendant for application for Certified True Copy – Exhibit C15.  

13. Now, it is stating the obvious to affirm, from the onset, that from the evidence on record, the employment relationship between the Claimant and the Defendant is regulated by statute. This is clearly seen in that the Defendant, by paragraph 2 of the Amended Statement of Defence, positively admitted the averments in paragraphs 1 and 2 of the Claimant’s Statement of Facts. Essentially, the grouse of the Claimant as stated in paragraphs 37, 38 and 39 of his Statement on Oath is that, in terminating his appointment, the Defendant did not follow the prescribed rules and guidelines and the proceedings of the committees grossly infringed his right to fair hearing.

14. The submission of learned Claimant’s counsel is that the way and manner prescribed for the termination or dismissal of statutory employment such as the Claimant’s employment, must be religiously observed otherwise, such termination has no effect whatsoever and the employee will be deemed as continuing in his employment. See Olaniyan Vs University of Lagos [1985] 2 NWLR (Pt 9) 599; Iderima Vs Rivers State Civil Service Commission; and Bob Vs The Council, Abia State University, Uturu & Anor [2015] LPELR 25611; [2003] All FWLR (Pt 146) 959 at 992; Shitta-Bey Vs Federal Civil Service Commission [1981] SC40 (cited by learned counsel).

14. Learned counsel argued further that, mere issuance of a query to an employee

 does not amount to an indictment or punishment and submitted that the method of termination by the Defendant against the Claimant is contrary to the Rules prescribed in the Kaduna State Public Service Rules 2005 and in the Guidelines for Appointment, Promotion and Discipline of the Kaduna State Civil Service Commission. Learned counsel for the Claimant submitted further, that the Claimant was not given opportunity to defend himself or call his witnesses or afforded with all the documents for his defence or accorded fair hearing and also submitted that the Committee was improperly constituted as same was chaired by the Head of Department of the Claimant. Learned counsel finally urged the Court to hold that procedure culminating to the issuance of the purported letters of suspension and termination of Claimant’s appointment is unlawful. To buttress his submission, learned counsel cited the cases of Eze Vs Unijos [2021] 2 NWLR (Pt 1760) 208; U.T.C. (Nig) Plc Vs Peters [2022] 18 NWLR (Pt 1862) 297 at 316.

15. Now, by the evidence on record, particularly as contained in Exhibit C6, the Minutes of the Investigation held in the Office of the Secretary to the State Government, and Exhibit C7, the interim report on the demolition notice, a recommendation was specifically made for the issuance of query to three of members of staff of the Defendant who were directly involved in development control activities namely: Tpl. Hauwa Ladan, Tpl. Aliyu Usamatu and Mr. Kazah Zakaria. However, contrary to the recommendations and by the report of the Committee set up to investigate the development activities – Exhibit C8, a query was issued to the Claimant alongside with the three members of staff. It is equally on record that the Claimant was issued two queries - Exhibits C3 and C3A and his reply to the queries are contained C10 and C10A.

16. Despite his replies to the queries, the Defendant arrived at a decision that the Claimant committed three offences and was awarded with three punishments,

 viz-a-viz:

(i). Warning letter issued on the 9th June, 2017 for granting approval on a carved-out plot at No. 77B Western Way Close, GRA Zaria – Exhibit C4.

(ii). One month suspension with effect from the 01/01/2017 for

allowing Development at Hunkuyi and Kudan – Exhibit C4A

(iii) Indefinite suspension with effect from 17/01/2018 for negligence/refusal to discharge his official duty diligently at Millennium City Area Office, Kaduna – Exhibit C4B.

17. Undoubtedly, the right to suspend an employee is available to an employer in order to effect proper investigation. There are both foreign and local judicial decisions approving suspension of an employee pending the final determination of his involvement in the allegations levelled against him. See Esiaga Vs University of Calabar [2004] LPELR 1109. Therefore, the Claimant was lawfully suspended by the Defendant pending the outcome of its decision but the discretion to suspend must be exercised with a good sense of duty. The Defendant’s right to suspend its staff is provided for in Part V Rule 7 (V) of the Guidelines for Appointments, Promotion and Discipline. It provides as follows:

“Under no condition should interdiction or suspension be made to last more than 3 months in the first instance. Where the need for arises, the permission of the State Civil Service Commission shall be obtained.”

18. As stated above, the right of the Defendant to suspend its employees is not indefinite. From the unchallenged facts and evidence, the Claimant was placed on suspension in Exhibits C4A and C4B, respectively on the allegations that bother on allowing development to be erected up to the painting level at Hunkuyi and Kudan towns and negligence/refusal to discharge his official duty diligently in Millennium City Area. While the Claimant was serving his suspension for the allegation in Exhibit C4A, which suspension was for one month without pay, he was placed on indefinite suspension in Exhibit C4B with effect from 17/01/2018. His appointment was terminated on 12/09/2018 while on indefinite suspension.

19. Learned Claimant’s counsel contends that in spite of the Claimant’s replies to the queries, the Defendant neglected the defence of the Claimant as stated in his replies to the queries; that the Defendant did not write the Claimant to notify him whether the reasons that were stated in his reply was sufficient or not and he was also not requested to make further representation as prescribed by Rule 04302 of the Kaduna State Government Public Service Rules (2005), before his suspension and the eventual termination of his appointment.

20. Now, as I had stated earlier, the Claimant’s employment is regulated by the Kaduna State PSR. In view of its relevance to the determination of this case, I find it necessary to refer to Rule 04305 of the Kaduna State PSR, relevant to the case at hand. I have taken liberty to reproduce the said Rule as follows:

Rule 04305:

            “If it is represented to the Civil Service Commission that an officer has

been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 04306 with a view to dismissal, it may cause an investigation to be made into the matter in such manner as it considers proper and the officer shall be entitled to know the whole case made against him and shall have adequate opportunity of making his defence. If as a result the Commission decides that the allegation is proved, it may inflict any other punishment upon the officer such as reduction in rank, withholding or deferment of increment or otherwise.”

21. I must reiterate that the effect of the above provisions is that, the Claimant

cannot be validly removed from the employment unless the provisions provided

in the statute for removing him as stated is followed strictly. See Olaniyan V University of Lagos [1985] 2 NWLR (Pt 9) 599; Okwusidi V Ladoke Akintola University [2012] All FWLR (Pt 632) 1774.

It is equally settled that for the dismissal to be unlawful, the Claimant must prove that there was a departure from the prescribed procedure or that in applying the rules there was a violation of the rule of natural justice so as to render the formal compliance a travesty.

22. The Courts have held in a plethora of cases that the real issue where the question of fair hearing has been raised is, whether an opportunity of hearing was afforded to the parties entitled to be heard, and by hearing it means full hearing which includes allowing the parties to put in all they have. See Yusufu Garba & Ors Vs University of Maiduguri [1986] 1 NWLR (Pt 18) 550. The unchallenged evidence before the Court is that, the Claimant was not afforded the opportunity by the Defendant to present his defence. As seen in Exhibit C5, the immediate termination of the Claimant’s appointment was based on, “the Board of KASUPDA’s decision at its meeting held on 16th July, 2018”. By the Kaduna State PSR, the representation must be made to the Commission and the decision to terminate an appointment must be made by the Commission and not the Board as in the instant case. I should also note that the letter of termination of appointment was dated 12/09/2018, that is, two months after the Board made its decision.

23. The Claimant’s testimony is uncontroverted and remain sacrosanct. Therefore, the Court has no difficulty in believing same, more so, since no aspect thereof, appeared incredible. With the foregoing facts and evidence, it is clear that the Defendant did not observe the prescribed procedure for the suspension and termination of the Claimant. Therefore, the Claimant has successfully established that the termination of his appointment from by the Defendant is unlawful and void. I so hold. In the event, the letter of termination of appointment dated 12/09/2018 is hereby set aside. I further so hold.

24. It is trite that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office and the Court will void the unlawful act and order the re-instatement of the victim of the capricious exercise of power. The cases on this point are legion. I will cite only three: Kwara Polytechnic Ilorin Vs Oyebanji (2008) All FWLR (Pt 447) 141 at 199; Mailiki Vs Michael Imoudu Institute of Labor Studies [2008] LPELR 8467; Shitta Bay Vs FCSC [1981] SC 40.

In the instant case, there is nothing legally standing in the way of the Claimant from having his job back with its attendant rights, benefits and privileges.

On the basis of the uncontroverted evidence on record therefore, and the settled position of the law, it will be appropriate, in the circumstances of the present case, to grant the Claimant’s claims. I hereby grant the Claimant the following reliefs:

1.                 A Declaration that the decision of the Board of the Defendant at its meeting held on 16/07/2018 in the termination of the Claimant’s appointment is contrary to the Rules as contained in the Kaduna State Public Service Rules 2005 and the Guidelines for Appointments, Promotion and Discipline of Staff Rules issued by the Kaduna State Civil Service Commission is therefore null and void.

2.                 A Declaration that the termination of the Claimant by the Defendant vide the letter of termination of appointment dated 12/09/2018 is unlawful, null and void and of no effect whatsoever.

3.        An Order of this Honourable Court reinstating the Claimant in the services of the Defendant.

4.        An Order of this Honourable Court directing the Defendant to pay the sum of N3,531,685.65 (Three Million, Five Hundred and Thirty -One Thousand, Six Hundred and Eighty- Five Naira, Sixty-Five Kobo) within one (1) month being arrears of salaries and allowances at a monthly sum of N51,183.85 (Fifty-One Thousand, One Hundred and Eighty-Three Naira, Eighty-Five Kobo) only, from 12/09/2018, the date of the purported termination of the Claimant’s appointment till date.

5.        Costs of N500,000.00 (Five Hundred Thousand Naira) is awarded in favor of the Claimant.

6.        It is hereby further ordered that the Defendant shall pay to the Claimant, the sums set out in (4) and (5) above within 30 (thirty) days.

7.        10% interest is awarded on the judgement sum from the date of default until final liquidation of the judgement sum.

Parties shall bear their respective costs.

 

SINMISOLA O. ADENIYI

(Hon. Judge)

08/05/2024

Legal representation:

P. B. Achi Esq., for Claimant

Defendant not represented.