IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

 

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

 

DATE: MAY 3, 2024                                                              

SUIT NO: NICN/LA/327/2016

BETWEEN

MR. SIMEON ADEMOLA OKE                                                                   CLAIMANT

AND

THE WEST AFRICAN EXAMINATION COUNCIL                                 DEFENDANT

REPRESENTATION

A.R. Fatoki for the Claimant.

Olakunle Ajala, with Oluwadara Adewale for Defendant.

 

JUDGMENT

Introduction and claims

[1] The Claimant filed this complaint against the Defendants on 17 May 2016 together with the accompanying processes seeking the following reliefs:

 1. A Declaration that the purported dismissal of the Claimant herein by the Defendant herein based on the report of the Panel of Investigation who acted on the spurious report of the Police at the Panti C.I.D. Lagos without given the Claimant an opportunity to be heard is unlawful, illegal and constitute a gross violation of the Claimant.

2. A Declaration that the purported dismissal of the Claimant based on the report of the said Panel was wrongful, inhuman and constitute a breach of the terms and condition of service of the Claimant with the Defendant herein.

 3. A Declaration that the refusal of the aforesaid Panel to allow the Claimant herein confront his alleged accusers is unlawful and constitute a breach of the Claimant right to the inalienable right of fair hearing.

 4. An order of the Honourable Court reinstating the Claimant herein back to his duty post as a Senior Examination Officer (Account) or alternatively an order of the court compelling the Defendant to pay all the Claimant’s entitlement to him forthwith.

The Defendant entered a conditional appearance on April 3, 2017, and filed a statement of defence together with the accompanying processes on the same date. The Claimant filed a reply to the Defendant’s statement of defence on September 25, 2017

Case of the Claimant

[2] The Claimant’s case on the pleadings is that he was a Senior Examination Officer (Account) with the Defendant; and joined the service of the Defendant on the 23^rd October, 1987 as a Clerical Officer on Level 5. The Claimant averred that he was  dedicated and honest at his duty post which resulted in his rapid and progressive advancement to the senior cadre. He stated that as a testimony to his dedication to duty at he was giving a long service award on the 2^nd November, 1999. The Claimant averred that on the 19^th March, 2004 in the course of the computer printout of the scratch cards, it was discovered that several cards had been pilfered and tampered with by some unknown persons. He stated that shortly after the discovery a member of the security apparatus of the Defendant, one Mr. Jimoh Seriki, a Police Officer said he was the source of supply to the illegal dealer Miss Lamide Olanrewaju arrested by the Area ‘G’ Police, and further stated that his immediate boss Sergent Catherine Ogunlami was the source of the supply.

[3] The Claimant averred that the alleged offence culminating in his purported dismissal was not made known to him. He stated that nobody physically confronted him either at the Police station or before the Panel set up by the Defendant as being connected to the alleged crimes apart from the uncorroborated allegation of Sergeant Ogunlami. The Claimant stated that and he was not allowed to confront Sergeant Ogunlami or anybody else in connection with the alleged offence. He averred that he never saw or knew the content of the Police Report from the State Criminal Investigation Department, Panti Lagos used as the basis for the report of the Panel. He further averred that at all time material to the removing of the Scratch Cards under his care he never knew that the cards were being tampered with, and that he was not the only person that had access to the room where the cards were kept.

[4] The Claimant averred that without an instruction for stock taking he would not know that the cards were being tempered with until some of the cartons were discovered opened and he raised alarm to the authority concerned. He stated that the report submitted by the Panti Police was a doctored report influenced by the husband of Catherine Ogunlami a high-ranking Police officer; that the initial report submitted by the Area ‘G’ Police Station was the authentic report and no mention was made regarding him in the said report. The Claimant stated that the Defendant acted contrary to the Conditions of Service for National Staff of Council in Nigeria effective from 1^st June, 1999 particularly, paragraphs 11, 10 on page 31 of the pamphlet.

[5] The Claimant in his reply to the statement of defence stated that he was only responsible for the supervision of the Revenue Section and seldom supervised the issuance of the scratch cards to any officer. He stated that it was the Principal Accountant that had direct supervision and control of the scratch card. The Claimant stated that he was present at the Panel hearing but that in the month of June 2004 when the members of the Panel, the Police, and other suspects had a joint meeting, he was barred from entering the venue. The Claimant averred that the Panel of Investigation did not recommend him for dismissal but compulsory retirement.

[6] The Claimant testified in support of his case. He adopted his statement on oath and he relied on his admitted documents.  He told the court that he could not remember the circumstances that led to his dismissal; and that he was dismissed for a case of missing or stolen scratch cards belonging to the Defendant, and that he was not a party to the loss. The Claimant stated that he raised the alarm when he observed it; and that he replied the query issued him in respect of the missing scratch cards. He confirmed that he wrote a statement at the Police station. The Claimant told the court that Mr. Seriki alleged that Sergeant Catherine was the source of the scratch card he sold to the public and that the panel members accepted the confession. He testified that he had nothing to do with Jimoh Seriki and that he did not question Seargent Catherine.

Case of the Defendant

[7] The Defendants case on the pleadings is that the Claimant was its ex-employee who worked in the Accounts Department and had the direct supervision and control of the scratch cards storeroom. The Defendant averred that the Claimant was promoted based on his academic qualification OND and HND in Accountancy. The Defendant averred that the information about some of the missing scratch cards in the store room was raised by the Claimant through his letter of 19^th March 2004 that the cards were stolen the previous night after the store room was burgled. The Defendant stated that the incident of stolen scratch cards at its Ikeja Zonal Office was reported to the Area ‘G’ Police Station who began investigative action and a consequent report.

[8] The Defendant stated that contrary to the Claimant’s information that the cards were stolen the previous night of 19^th March 2004, the computer print-outs by Fleet Technologies revealed that some of the scratch cards had been missing as far back as February 2004. The Defendant stated that apart from its responsibility to report the incident to the Police, its Head of National Office set up a Panel of Enquiry to conduct investigations into the stolen or missing scratch cards vide a Memorandum dated 13^th April, 2004 and referenced L/SDR/IP/70/VOL.8/219. The Defendant averred that the Claimant could not refute the allegation of one Mr. Jimoh Seriki whose testimony linked the source of his own possession of the missing scratch cards to the Claimant.

[9] The Defendant stated that the Claimant was invited by letter dated 5^th May 2004 to appear before the Panel of Enquiry and the Claimant was in attendance before the Panel, fully participated and made representations on the allegation of the stolen scratch cards. The Defendant averred that its decision to dismiss the Claimant on the 1^st June 2005 was based on the investigation carried out by the Panel. The Defendant stated that the Claimant was in sole possession of the key to the store where the scratch cards were being kept, and that he was a sole administrator of the sale of scratch cards without any supervision from the Principal Accountant. The Defendant averred that its action dismissing the Claimant on the 1^st June 2005 was in full compliance with the provisions of 11.10 of the Conditions of Service for National Staff of Council in Nigeria; and was not in breach of any existing law of the land.

[10] The Defendant stated that Claimant's immediate boss who was then the Principal Accountant of the Defendant informed the Panel that he had lost confidence in the Claimant. That consequent upon the findings and observation of the Panel, the Claimant by letter dated 1^st June, 2005 was dismissed from the Council. The Defendant averred that if the Claimant had properly, and diligently taken records being the officer in charge, the incident could not have occurred.

[11] The Defendant stated that the Court lacks jurisdiction to determine this suit as it is  statute barred having commenced in 17^th May, 2016 when the cause of action arose on the 1^st June, 2005.

[12] The Defendant called two witnesses. Mr. Ukpong Godwin Itoro (DW1) the HR officer, and Mr. Oluwole Adulofai (DW2). They adopted their statements on oath. DW1 informed the court that the case was reported to the Area G Police station but that the Police report is not before the court. He stated that the Claimant could not refute the allegations of Mr. Jimoh Seriki and those from other sources too. He told the Court that the Claimant’s dismissal was in accordance with the conditions of service.

DW2 stated that his employer provides online service for the Defendant. He informed the court that he was not present in 2004 when the incident occurred but only read through the records.

 

 

Final Address

[13] The Defendant’s final address is dated and filed 27^th June 2023. The Claimant did not file a final address despite being served with the Defendant’s final address, and given the opportunity to file his final address.  Learned counsel to the Defendant adopted the final address and made oral submissions. The Defendant submitted one issue for determination:

 

Whether the dismissal of the Claimant from the employment of the Defendant was not proper given the facts and circumstances of this case.

[14] Learned counsel submitted that cases of dismissal have often turned on whether the processes or procedures involved in the determination of the contract of employment of the employee have been duly followed or complied with or at any rate the application of the elementary rules or requirement of natural justice or the right of fair hearing as enshrined in the 1999 constitution of the Federal Republic of Nigeria have been adhered to or observed. He cited Eze v Spring Bank Plc (2011) 18 NWLR (Pt. 1278) p.113. He submitted that where an accusation or allegation of misconduct against an employee borders on criminality, the decision on the misconduct notwithstanding could sustain the basis for a summary dismissal of the employee by the employer without requiring the employer to first prosecute and probably convict the employee before dismissal. He relied Yusuf v Union Bank of Nigeria Ltd (1996) 6 NWLR Pt. 457 650;

[15] Learned counsel submitted that in cases of misconduct also bordering on criminality, what is required of the employer in the exercise of its summary power of dismissal is to give the employee fair hearing by confronting the employee with the accusation made against him and requiring him to defend himself citing Yusuf v Union bank Plc supra, Eigbe v N.U.T.(2008) 5 NWLR Pt. 1081 p.604. He submitted that on the evidence adduced, the Claimant was given a fair hearing. He then urged the Court to dismiss the case.

Decision

[16] I have carefully considered the originating processes, the evidence, the submissions of counsel and authorities relied on in the final address. The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the court the terms and conditions of his employment that provides for his rights and obligations. See Ibama v SPDC (Nig) Ltd (2005) 17 NWLR (Pt 954) 364, WAEC v Oshionebo (2006) 12 NWLR (Pt 1994) 258, Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. The Claimant has placed before the court his offer of temporary employment (exhibit C1), conditions of service (exhibit C2), report of investigation panel (exhibit C3), letter of dismissal (exhibit C7). The Defendant has also placed in evidence the report of the Investigation Panel (exhibit D2), and its inter office memorandum on the investigation of the stolen scratch cards (exhibit D4).

 

 [17] There is no dispute between the parties that the Claimant was an employee of the Defendant. The evidence before the Court is that the Defendant’s Ikeja zonal office was burgled on 18^th March 2004 and its scratch cards were stolen. The burglary and theft was reported to the Nigeria Police. A Panel was set up by the Defendant to investigate the circumstances leading to the theft of the scratch cards. Thereafter, the Claimant was summarily dismissed. His letter of dismissal is reproduced as follows:

L/P/3197                                                                                        1^st June, 2005

Mr. S.A. Oke

WAEC Zonal Office

 

Dear Mr Oke,

DISMISSAL

The Nigeria Administrative and Finance Committee at its 154^th meeting held on 9^th May, 2005 considered the report of the Panel which investigated your involvement in the case of missing scratch cards at the WAEC Zonal office, Ikeja.

The Committee decided that your action amounted to gross misconduct bordering on dishonesty which contravenes Chapter 11 of Council’s Conditions of Service for National  Staff (June 1999 Edition) which attracts dismissal.

Consequently, you are hereby DISMISSED from the services of the Council with immediate effect.

Please hand over all council’s property in your possession including your identity card to the Senior Deputy Registrar/ Zonal Coordinator, Ikeja.

Yours sincerely,

S.B. TAIWO

Deputy Director (HRM)

 

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

1. Whether the Claimant was denied his right to a fair hearing.

2. Whether the Defendant has established the reason it summarily dismissed the    Claimant?

3. Whether the Claimant ought to have been tried by a Court before the Defendant could act?

[19] The claimant asserts that he was denied his right to a fair hearing. The question is was the claimant given the opportunity to be heard? The report of the Investigation Panel (exhibit C3 & D2), and Inter-Office Memorandum (exhibit D4) is before the Court. The evidence reveals that the Claimant was queried on 25^th March 2004 on the missing scratch cards, and he replied the query as seen in exhibit D4. By his own evidence under cross-examination he confirmed this. The report of the Investigation Panel reveals that the Claimant appeared before the Panel along with others. He was interviewed, and he responded to the questions he was asked on the entire incident. It is settled law that fair hearing audi alterem partem is satisfied once a party has been given the opportunity to be heard in respect of any matter or cause touching on, or affecting his interest, see INEC v. Musa (2003) 3 NWLR (Pt 806) 72, Aiyetan v. The Nigerian Institute of Oil Palm Research (1987) LPELR-275 (SC). Fair hearing is simply “hear the other side”. How then can the claimant allege that he was not given a fair hearing when he was heard in writing and orally?

[20] The Supreme Court in the case of Imonikhe v Unity Bank Plc [2011] 4 SC (Pt 1) 104 at 135; [2011] 12 NWLR (Pt 1262) 624 at 640 has held that where an employer accuses an employee of misconduct by way of a query and the employee answers the query before the employer takes a decision on the employee’s appointment, that satisfies the requirement of fair hearing. The claimant was queried, he responded, and he appeared before the Panel before he was dismissed. I find that the Claimant was given a fair hearing; and I so hold.

[21] The reason given by the Defendant for the Claimant’s dismissal in the dismissal letter is gross misconduct bordering on dishonesty. The law imposes on the employer a duty to justify the reason given for the dismissal, see Olatunbosin v NISER Council (1988) 3 NWLR (Pt.80) 25, Afribank (Nig ) Plc v Osisanya (2000) 1 NWLR (Pt 642) 592. Some of the Panel observations and findings on the Claimant are reproduced:

(vi) Although Mr Oke vehemently denied any involvement in the manipulation /giving out of scratch  cards to anybody and tenaciously held on to his allegations that thieves burgled the Store in the night of 18^th March 2004; evidence from the computer print-outs by Fleet Technologies showed that some of the missing scratch cards had been used since February 2004, that is long before the alarm of burglary.

The import of the above is that the alleged burglary of 18^th March, 2004 is far from being real.

(vii) Inspection of register of sales by the Panel revealed that proper Books of Accounts were not kept for the scratch cards by Mr Oke.

(viii) The Panel believed that Mr Oke’s alarm about the burglary on 19^th March, 2004 was borne out of the common knowledge in the Revenue Section of a planned stock taking of the scratch cards the following Monday knowing full well that if the stock was taken, it would be revealed that the stock of scratch cards had suffered tremendous losses since some of them had already been used before that day as revealed by Fleet Technologies computer printout.

(ix) The Panel found out that none of the handing over notes of Mr Oke to his immediate subordinate, Mrs Fabusiwa, contained the balance of the scratch cards whereas he always recorded the balance of receipts for her whenever he was going on leave or official tour.

(x) Considering the above detailed facts, the Panel believed that Mr S.O Oke should be held responsible for the missing scratch cards.

[22] From the evidence adduced, the Claimant was in sole possession of the key to the store where the scratch cards were kept, and he was a sole administrator of the sale of scratch cards without any supervision. I find the Claimant’s misconduct is grave and weighty; it has eroded and undermined the confidence reposed in him by the Defendant to carry out his duties. See Sule v Nigeria Cotton Board [1985] 2 NWLR (Pt. 5) 17 S.C, Olatunbosun v NISER Council supra. I am satisfied that the Defendant has justified the reason it dismissed the Claimant.

[23] The Claimant asserts that the allegation of crime against him ought to have first been established by a Court of law before the Panel could act on the Police report and dismiss him. The law is settled that it is not a requirement of the law that before an employer terminates the employment or summarily dismisses his employee, the employee must be tried before a Court of law where the accusation against him is for gross misconduct bordering on criminality. See Yusuf v Union Bank Plc [1996] 6 NWLR (Pt 457) 632, A.T.A. Poly v Maina [2005] 10 NWLR (Pt. 934) 487, Arinze v FBN Ltd [2000] 1 NWLR (Pt. 639) 78, Damabara v A.G. of Federation & Anor [2021] LPELR-56480 (CA).

 [24] I hold that the dismissal of the Claimant is lawful; it is in accordance with the rules of natural justice, and the Defendant’s conditions of service. Consequently, the declarations sought in reliefs 1, 2, and 3 must fail, and they are refused. The declarations having failed, the ancillary order in relief 4 also fails having no foundation, see Nwaogu v Atuma [2013] 11 NWLR 117 at 156 para D.

[25] The Claimant’s case is dismissed in its entirety. Costs awarded the Defendant in the sum of N200,000.00.

Judgment is entered accordingly.

                                                        _______________________________

                                                             Hon Justice O. A. Obaseki-Osaghae