Akure –The Presiding Judge, Akure Division of the National Industrial Court of Nigeria, His Lordship, Hon. Justice O. O. Oyewumi on Wednesday 21st November 2018 in a judgment set aside letter of compulsory retirement presented to VINCENT OMOSIGHO (claimant) dated 23rd of June, 2016 by THE REGISTRAR, UNIVERSITY OF BENIN, ordered claimant to be reinstated to his position as a Senior officer within 30 days.
The claimant sought against defendants among others; A Declaration by this Honourable Court that the defendants' act of compulsorily retiring the claimant should be declared null and void as they failed or neglected to follow the procedure envisage in the University of Benin Transitional Provision Act UB4 especially S.17 in the Revised Edition of Law of the Federation Act 2004 dated 31st day of December, 2010. . A Declaration by this Honourable Court that the claimant cannot be tried for an offence committed outside the official hours of his employment.
Likewise, An Order of this Honourable Court directing the defendants to reinstate the claimant to his position and pay all his entitlements forthwith.
It is the case of the claimant that he was employed on the 25th of March, 1982 as a porter and rose to a senior staff and was promoted twice to the next stage of his career on the recommendation and evaluation by the head of his department who he worked directly with without any query before the incident that led to this case.
He stated that his salary for the month of February, was not paid on the ground that he did not sign the salary return sheet and that he reported it to the head of his department through text message, who advised him to apply through her office to the bursary department but that he was surprised to be invited by the security department over criminal allegation of threat to life of the said head of department, the invitation which he said he honoured and denied the allegation.
That he later got an invitation from the Nigeria Police Force on same allegation where the D.P.O. could not establish any threat from the facts presented. He stated that before the conclusion of the investigation by the Police, the 4th defendant issued him query on 9th of May, 2016 without any report from the security indicting him over the alleged crime, he also stated that no ad-hoc committee was set up by his department to look into allegations contained in the query relating to absenteeism or lateness to work. He was invited to appear before the disciplinary committee of THE REGISTRAR, UNIVERSITY OF BENIN -4th defendant where he was found guilty and made to retire compulsorily.
Defendants submitted that a case of act of insubordination, absence from duty without permission and alleged threat to life was reported to management by the Head of department of the claimant’s former department.
That the security department's investigation reveals that the claimant sent a message to the head of department during official hours threatening her person and giving an ultimatum that if his salary is not paid within a specific date something drastically will happen to her and that upon investigation it was discovered that claimant deliberately refused to sign the monthly return for February 2016 because of his incessant absence from work.
The defendants stated that the 4th defendant in line with the extant rule issued the claimant with a query to respond to issues raised, which he did unsatisfactorily, that he subsequently appeared before ad-hoc committee and thereafter before Senior Staff Disciplinary Committee (SSDC) by a letter of 18th May, 2016 and that based on the report of the SSDC, the Governing Council, accepted the recommendation of compulsory retirement of the claimant with all the rights accruing to him.
They pleaded that they complied with the procedure stated in the University of Benin Act and Regulations of the Senior Staff of the University, 2003. The defendants contended that this suit was brought mala fide and liable to be dismissed with huge cost.
On whether the defendants had followed the procedure to compulsorily retire the claimant, counsel referred the Court to the Regulations Governing the Service of Senior Staff of the University dated 16th August, 2003 and Section 17 of the University Act dated 31st December, 2010 and submitted that there was no letter of complaint from the head of department to the 4th defendant before the 4th defendant issued query on him, also that the defendants could not tender before the Court the security report which triggered the query.
Counsel submitted that the procedure adopted by the defendants is against the fundamental principles of fair hearing guaranteed by the Constitution and the Court was urged to declare the process leading to the compulsory retirement of the claimant as null and void.
After carefully considered all the processes filed, the evidence led and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice O. O. Oyewumi expressed thus;
“…it is immaterial whether or not the act complained of is done outside official hours, what is material to this suit is that the alleged threat message was sent to the recipient in her official capacity as the Head of department of the claimant for which the 1stdefendant has authority to investigate and discipline any erring officer, but has to do so in strict compliance with the disciplinary procedure envisaged by the University of Benin Act and the regulations governing the service of senior staff of the university of Benin.
“There is no evidence on record to evince that the defendants constituted an Ad Hoc Committee of three members as statutorily provided. It is also noteworthy that there is no iota of evidence before the Court that the SSDC as argued by learned counsel is statutorily charged to investigate allegations of misconduct.
“I cannot equally find any documentary evidence adduced on record that either the 2nd defendant, the Governing Council or the Registrar delegated their disciplinary powers under Section 17 of the Act or Rule 5 of the regulation to the SSDC.”
The Court further held that the letter of compulsory retirement dated 23rd of June, 2016 but with effect from 8th of June, 2016 is null, void and hereby set aside.
His Lordship directed that claimant be reinstated to his position as a Senior officer of the UNIVERSITY OF BENIN and is entitled to salary and emolument from 8th of June, 2016 when he was compulsorily retired unlawfully till the date of his reinstatement within 30 days.
