IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON FRIDAY 29TH DAY OF JANUARY, 2021

BEFORE HIS LORDSHIP: HON. JUSTICE  SINMISOLA  ADENIYI

SUIT NO: NICN/KD/13/2017

BETWEEN:

 ADAMU SAMAILA………………………….........CLAIMANT

 AND

1. KADUNA STATE MINISTRY OF

    LOCAL GOVERNMENT………………………..}

2. KADUNA STATE LOCAL GOVERNMENT………} DEFENDANTS

    SERVICE COMMISSION………………………..}               

J U D G E M E N T

The Claimant commenced the instant action for unlawful dismissal vide Complaint and Statement of Facts filed in this Court on 09/05/2017, wherein he claimed against the Defendants, the reliefs set out as follows:

1.   A Declaration that the purported dismissal of the Claimant by the Defendants is unlawful, malicious and vengeful having not been predicated on any valid reason.

2.  An Order of Court setting aside the purported dismissal of the Claimant’s employment with the Defendants for not being predicated on any valid reason and in return order the Defendants to recall the Claimant.

3.  A Consequential Order of Court mandating the Defendants to pay to the Claimant all his salaries, emoluments and other privileges accruable to him since his unlawful dismissal.

2. It is borne by the record of proceedings in this suit that the Defendants were duly served with the Originating processes and hearing notices for the scheduled hearing dates. It is equally borne by the record of proceedings that the Defendants were represented by counsel but failed to file any processes in defence of the suit.

It is pertinent to further state that after the Claimant gave his testimony; the Defendants filed a Notice of Preliminary brought pursuant to Section 2(a) of the Public Officers’ Protection Act Cap. P 41 Laws of Federation of Nigeria 2010 (POPA) by which they prayed for an order of dismissal of this suit for want of jurisdiction for being statute barred. The Court in its considered Ruling of 08/10/2019 held inter-alia as follows:

“Going forward, the arising nagging question is, has there been a change in the position of law on this subject? Put differently, is the position earlier taken by the Appellate Courts (Supreme Court and Court of Appeal) still subsisting and remains the legal regime for resolution of this lingering issue posed for determination in this application? To my mind, I will answer with an emphatic NO; that the trend has changed.

Another prevalent precedent has emerged, given the recent position taken by the Supreme Court in the very recent case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors Vs Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 at 270, on this recondite issue. In that case, Ariwoola JSC, in the lead judgement of the Apex Court, wittingly included Contract of Service in the family tree of contracts not affected by the limitation statutes, thereby reversed the age-long dichotomy in operation of limitation statutes between specific contract and contract of service, as maintained by the Supreme Court and Court of Appeal over the years, in many decided cases (I had earlier cited and reviewed).

The celebrated Johnson’s case involved employment claims of some persons employed by the National Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A & F.C) at the twilight of the outgoing military administration in May 1999 but which employment was cancelled by the incoming civilian Government. Referring to NPA’s Case and Osun State’s Case (supra), the Supreme Court at Pg 270, held as follows:

“Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. In this case, the respondent’s claim is on service contract. Thus, the appellants are not covered by the provisions of the Public Officers Protection Act”. (Underlining for emphasis)”

Having brought forth to the fore this most recent and apt authority of the Apex Court on the issue slated for determination in this application under consideration, and in due reverence to the hallowed doctrine of stare decisis and judicial precedent, of which I am sworn-bound to honour and observe, I can only take a bow and bend to apply the law as it is now, no longer as it was before. Consequently, I hold that the earlier position taken by the Appellate Courts no longer represents the current state of the law on the subject, which frees me to discountenance same. Nevertheless, I am again bound to follow a new pathway set forth in the new precedent.

Accordingly, in line with the recent Apex Court decision in the Johnson’ Case (supra), and this suit being an employment claim of service contract, in my considered view, Section 2 (a) of the POPA prescribing 3-month time limit to commence suit upon arising of the cause of action, no longer apply to employment claims, as in the instant case. I so hold.”

4. The Claimant at the trial testified in person and called no other witness. He adopted his Statement on Oath and tendered in evidence a total of twenty – seven (27) documents as exhibits to establish his case.

 In view of the Defendants’ failure to file defence to the action, the Court ordered parties to file and exchange their written final addresses as prescribed by the provisions of the Rules of the Court.

The Claimant’s final address was filed on 07/03/2019, wherein his learned counsel, R. O. Agboola, Esq., formulated three issues for determination namely:

1.     Whether the dismissal of the Claimant was valid and lawful in view of the provisions of the guidelines regulating the Claimant’s employment with the Defendants?

2.     Whether the Claimant’s dismissal from service was not arbitral to principles of fair hearing?

3.     Whether judgement will not be given against Defendant(s) who has willfully refused to defend themselves in a suit?

5. Mr. Sanusi Usman, learned Defendants’ counsel in turn filed his written address on 17/08/2020. I should note that the lone issue as formulated by learned counsel for the Defendants bother on issue of the jurisdiction of the Court on the ground of being statute – barred pursuant to Section 2 (a) of the POPA, which as I earlier stated, had been determined and dismissed by this Honourable Court in its ruling of 08/10/ 2019.

Now, what should learned counsel do if he is unsatisfied with this ruling? It is to go on appeal. If he cannot go on appeal immediately because it is an interlocutory matter, he is expected to wait for the judgment on merit and then if dissatisfied, include the ruling of this Court of 08/10/2019. He did not do this. Instead, he raised the issue again in his final written address praying the Court to dismiss the Claimant’s claim insisting that the position of the law on the issue of applicability of Section 2 of the POPA in employment cases still remains the same. The learned counsel’s submission was made without giving due regard to the position of the Apex Court in its recent decision in the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors Vs Ajibola Johnson & 10 Ors (supra) and the Ruling of 08/10/2020 of this Honorable Court.

Hear him at page 25 paragraph 3:37 of his written address:

“The Defendants therefore respectfully submit that to hold that the earlier plethora of cases (supra) has now been overturned by the recent decision in the National Revenue Mobilization case (supra) would amount to ascribing confusion and unreasonableness on the part of the Court, which is highly inappropriate.” (Emphasis mine)

What a way to be impudent, impertinent, bumptious and discourteous! A counsel ought to know what can be done under the law if dissatisfied with the ruling yet chose to be an irritant. I doubt if learned counsel understands that the ruling was a considered one and so can only be set aside on appeal? I must reiterate that the choice of language and conduct of Mr. Sanusi Usman is not only discourteous (indeed disrespectful) but it is highly unprofessional. In the circumstance therefore, the written address filed by the learned Defendants’ is hereby discountenanced.

6. Now, in my view, the issues as formulated by the Claimant as I had set above, quite captures the field of dispute in this suit and this suit shall be determined on this basis. The issues are however rephrased as follows:

“Whether the Claimant clearly established that his dismissal from appointment from the employment of the Defendants was unlawful to entitle him to the reliefs he sought in this suit.”

As I proceed, it is pertinent to consider at first, the legal implication of the Defendants’ failure to join issues with the Claimant on his claim by not filing a defence thereto. The settled general principle is that where evidence called by the Claimant in a civil suit is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof; except, however, where his claim involves relief for declaration in which he will be required to establish the same with cogent and credible evidence. See Kosile Vs Folarin [1989] NWLR (Pt 107) 1 Monkom V Odili [2010] All FWLR (Pt. 526) 542-563; Dumez Nig. Ltd Vs Nwakhoba [2008] 18 NWLR (Pt 119) 361 at 373-374.

In the instant case therefore, even though the Defendants failed to defend the action, the Claimant is still duty bound to adduce satisfactory evidence in order to be entitled to the principal reliefs he seeks from the Court, being declaratory in nature.

7. The Claimant’s case is simple and straight forward. By my understanding of the totality of his case, the basic, essential and relevant facts upon which the Claimant has predicated his claim could be enumerated as follows:

1.   That he was employed as a Health Attendant by the Sabon Gari Local Government on 07/01/1997 and that his appointment was confirmed and upgraded to the position of a Health Officer on 12/12/1997.

2.   That he was further trained at the School of Health Technology, Kaduna and he rose through the ranks to the position of an Environmental Officer.

3.   That his salary for December 2014 to April 2014 was not paid and that upon inquiry he was informed that his salary had been posted to Soba Local Government where he served before he was transferred to Sabon Gari Local Government.

4.   That he filed a formal complaint to his labour union (Medical and Health Workers Union - MHWU), when the Defendants failed to pay his outstanding salaries and that the said Union petitioned the ICPC on his behalf.  

5.   That through further efforts that he made, his salary was normalized and paid.

6.   That when he received a letter of dismissal from service he lodged a complaint to his Union; (MHWU) that the Union wrote a letter of appeal to the 2^nd Defendant for his reinstatement and that when his union replied that it has no locus another letter was written to the Head of Service.

7.   That the Head of Service in its reply maintained that his dismissal cannot be reversed on the ground that he (the Claimant) had committed many offences that warranted his dismissal.

8.   That his purported dismissal is strange as he was never accused of any wrong doing neither was he ever invited to defend any allegation.

8. To further support his case, the following documents were admitted in evidence:

i.             Letter of offer of temporary appointment dated 07/01/1997, Letter of permanent and pensionable appointment dated 05/07/2004 – Exhibits C1 and C2

ii.           Employee bio data forms – Exhibit C12

iii.          Various letters of postings dated 04/10/2012, 29/04/2014 and 14/04/2015 – Exhibits C4, C4C, C4E

iv.          Application, complaints and correspondences over the denial of salary dated between 26/05/2015 and 19/04/2016 – Exhibits C7, C8, C9, C14 and C15

v.            Pay slips from September 2014 – April 2016 – Exhibits C6 – C6E

vi.          Letter of dismissal of appointment dated 24/03/2016 – Exhibit C13

vii.        Letter of appeal for reinstatement of Claimant written by the Medical and Health Workers’ Union to the Head of Service dated 25/04/2016 – Exhibit C16

viii.       Reply of Head of Service to the Chairman Medical & Health Workers’ Union dated 27/04/2017 – Exhibit C17

9. Now, as rightly submitted by learned counsel for the Claimant, 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 Odoniboye- Obu Vs NNPC [2003] All FWLR (Pt 146) 959 at 992 (as cited by learned counsel) and Olaniyan Vs University of Lagos [1985] 2 NWLR (Pt 9) 599; Iderima Vs Rivers State Civil Service Commission 

The further submission of the learned counsel for the Claimant is that the method of dismissal by the Defendants against the Claimant is contrary to the guideline regulating the relationship of the parties. Learned counsel for the Claimant submitted further that the disciplinary procedure for serious misconduct as stated under the Rules were not observed by the Defendants and that the Claimant was not accorded fair hearing as guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which makes the purported dismissal unlawful. To buttress her submission, learned counsel cited the cases of Kotoye Vs CBN [1989] 1 NWLR (Pt 98) 419; Olatunbosun Vs NISER [1988] 3 NWLR (Pt 80) 25 at 48

10. In resolving the issue for determination, I had undertaken a crucial review of the Claimant’s letter of dismissal admitted in evidence as Exhibit C13. The relevant portion of the exhibit states as follows:

“The Commission noted that your action (abscondment from duty, engagement in political activities without the consent of the Commission, forgery of the former Sabon Gari Local Government Chairman’s signature and refusal to go on posting) are serious acts of misconduct punishable under the provisions of Part IV, Section 17 (1a) of the Kaduna State Unified Local Government Service Staff Regulations 2012 (The Rules).

The allegations of abscondment, engaging in political activities and forgery of signature levelled against the Claimant are very grave. I agree with the submission of learned counsel that the Claimant has a constitutional right to fair hearing to defend himself.

11. The grouse of the Claimant against the Defendants as contained in paragraphs 26 and 27 of his Statement on Oath is that the allegations made against him in Exhibits C13 and C17 were untrue; that he had never been queried and that he was never invited before any administrative panel to defend any allegation against him.

The disciplinary procedure for serious misconduct is stated under Section 17 (1) (e) and (2) of the Rules as follows:

Section 17 (1) (e) (i):

“When a serious case that may lead to dismissal has been instituted against a staff, the Head of Local Government Administration may interdict him on not more than half pay pending the determination of the case.

Section 17 (2):

“Suspension shall not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious has been established against a staff and it is considered necessary in the public interest that he should forthwith be prohibited from carrying on his duties.”

12. Now, can one say in all honesty, that the Claimant was given an opportunity to be heard against alleged grave offences?

As rightly submitted by the learned counsel for the Claimant, in matter of discipline of an employee whose employment is statutory, the procedure laid down by such statute must be fully complied with. See Oloruntoba-Oju Vs Abdul-Raheem (supra) at 46 to 47; Nasarawa State University & Anor Vs Nekere [2018] LPELR 44550

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

I had earlier summarized the Claimant’s testimony which remained sacrosanct, unchallenged and uncontroverted. The Court therefore has no difficulty in believing the same, more so that no aspect thereof appeared incredible. The Claimant has successfully established that his dismissal from the employment of the Defendants did not follow the statutory procedure and which, without any evidence challenging the same, is unlawful and void. I so hold.

In the circumstances therefore, failure of the Defendant to comply with the disciplinary procedure for dismissal of its staff as provided in the Rules, the purported dismissal of the Claimant by the letter of dismissal dated 24/03/2016 is hereby set aside. I further so hold.

13. 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 four: 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, 56; Iderima Vs RSCSC [2005] ALL FWLR 431.

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. I so hold.

14. 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 dismissal of the Claimant by the Defendants vide the letter of dismissal dated 24/03/2016 is invalid, unlawful, null and void and of no effect.

2.     An Order of this Honorable Court setting aside the letter of dismissal of the Claimant’s appointment dated 24/03/2016.

3.     An Order of this Honourable Court reinstating the Claimant to the position of Environmental Officer in the services of the Defendants.

4.     An Order of this Honourable Court directing the Defendants to pay within one (1) month, all arrears of salaries, allowances and other entiltlements from the date of the purported dismissal till date.

5.     Costs of N250,000.00 (Two Hundred and Fifty Thousand Naira) is awarded in favour of the Claimant.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

29/01/2021

 

Legal representation

R.O. Agboola Esq. for Claimant

Sanusi Usman Esq. for Defendants