IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT LAGOS
Before His Lordship:-
HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE
DATE: 2016-11-24
SUIT NO: NIC/LA/673/2013
BETWEEN
PASTOR (MRS.) ABIMBOLA PATRICIA YAKUBU.........................................................CLAIMANT
AND
FINANCIAL REPORTING COUNCIL OF NIGERIA ANOR .………………………………..DEFENDANT
REPRESENTATION
R. U. Ezeani with him is Uduak Bhavnani (Mrs), Okechukwu Nwoko and Jude Mbonu for the claimant
Tony Nwaneri with him is A.A Oloyede, Omotola Suavres for the defendant
JUDGMENT
By the claimant’s General Form of complaint dated 14th of August, 2014, the claimant seeks the following reliefs:
1. A DECLARATION of this Honourable Court that the contents of the 1st Defendant's letter of employment dated the 28thday of February, 2006 which was purportedly accepted by the Claimant cannot override the provisions of the Financial Reporting Council of Nigeria Act, 2011 and by extension, the Conditions of Service applicable in cognate institutions within the public service of the Federal Government of Nigeria and the Federal Government Public Service Rules.
2. AN ORDER of this Honourable Court to set aside and declare null and void the deliberation and proceedings conducted and held by the 1st Defendant and its Board with the Claimant on the 6th of August, 2013 and 28th of August, 2013 as the proceedings were against the extant Rules 030302 -030307 of Section 3, Chapter 3 of the Federal Government Public Service Rules and all known rules of fair hearing and natural justice.
3 A DECLARATION of this Honourable Court that the purported termination of the Claimant's appointment by the 1st Defendant and its Board negates the Fundamental Rights Provisions of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).
4 AN ORDER OF DECLARATION of this Honourable Court that the purported termination of the Claimant's appointment/employment vide the 1st Defendant's letter dated the 27th day of September, 2013 is contrary and negates the Conditions of Service applicable in cognate institutions within the public service of the Federal Government of Nigeria and the Federal Government Public Service Rules and is to that extent illegal, unlawful, wrongful and same null and void and of no effect of whatsoever.
5 AN ORDER OF DECLARATION of this Honourable Court that the purported termination of the Claimant's appointment/employment vide the 1st Defendant's letter dated 27th day of September, 2013 is contrary to the provisions of the Pension Act of Nigeria in that the Claimant is a permanent and pensionable staff of the 1st Defendant.
6 AN ORDER OF DECLARATION of this Honourable Court that the non-payment of the Claimant's salaries, allowances and other emoluments from 1st of September, 2013 till date by the Defendants is illegal, unlawful, wrongful and same null and void.
7 AN ORDER OF DECLARATION of this Honourable Court that the Claimant is still lawfully employed in the services and employment of the 1st Defendant and therefore entitled to be paid all her salaries, allowances, and benefits due to her from the 1st of September, 2013 till the date of this judgment and thenceforth.
8 A MANDATORY ORDER of this Honourable Court forthwith reinstating the Claimant to the services and employment of the 1st Defendant together with all the entitlements, allowances, benefits, rights and perquisites of her office from the 27th day of September, 2013 till the date of judgment entered in this suit and thenceforth.
9 A MANDATORY ORDER of this Honourable Court directing and/or compelling the 1st Defendant to give and/or accord the Claimant an accelerated promotion to that grade/rank and/or position that the Claimant would have attained in the employment of the 1st Defendant had the Defendant not stagnated the Claimant's growth in the employment of the 1st Defendant by the purported termination of the Claimant's employment.
10 DAMAGES of the sum of N100,000,000 (One Hundred Million Naira) only specifically and personally against the 3rd Defendant for his serial acts of sexual harassment, sexual advances, seduction of the Claimant with the attendant depression, trauma, psychological torture, emotional stress, depression and the 2nd Defendant's desecration of the Claimant's marriage, self esteem and pride.
11. A post Judgment Interest Sum of fifteen percent (15%) on the various judgment sums commencing from the date when judgment is entered by this Honourable Court until when the entire judgment sums is finally liquidated.
12. The sum of N10,000,000 (Ten Million Naira) as the incidental cost and expenses for instituting and prosecuting this action.
ALTERNATIVELY TO 8 and 9 ABOVE, the Claimant claims from this Honourable Court:
(1) A DECLARATION that the Claimant's entitlement as at 27th day of September, 2013 in the event of or when the 1st Defendant purported to terminate the Claimant's appointment or employment is the sum of N2,112,896.05 (Two Million, One Hundred and Twelve Thousand, Eight Hundred and Ninety-Six Naira, Five Kobo).
(2) A MANDATORY ORDER of this Honourable Court directing the Defendants to forthwith pay the Claimant as follows:
(a) The sum of N2,112,896.05 (Two Million, One Hundred and Twelve Thousand, Eight Hundred and Ninety-Six Naira, Five Kobo) being the appropriate salaries, allowances and other entitlements of the Claimant as at 27th September, 2008 when the Defendants purportedly terminated the Claimant's appointment.
(b) The sum of N24,594,836.04 (Twenty-Four Million, Five Hundred and Ninety-Four Thousand, Eight Hundred and Thirty Six Naira, Four Kobo) being the Claimant's salaries, allowances, entitlements and other benefits up to the Claimant's attainment of the applicable retirement age of sixty (60) years from the employment of the Defendants by the year 2032.
(c) General damages of the sum of N100,000,000 (One Hundred Million Naira) only against the Defendants for loss of expectation in the Claimant's chosen career as a result of the unlawful and illegal termination of the Claimant's employment by the Defendants the psychological torture and the emotional stress occasioned on the Claimant incidental thereto from the action of the Defendants by unlawfully and wrongfully terminating her employment.
It is claimant’s case as per her statement of facts, that she was employed by the 1st defendant then known as the Nigerian Accounting Standard Board on the 28th of February, 2006 as Deputy Manager (Admin) on Grade Level 10, Step 2. That her employment was confirmed six months after and she was promoted to Level 12 Step 2 effective from 1st March, 2010. That her employment is not governed by the Conditions of Service of staff made by the Board of the 1st Defendant but as provided by the extant Act, i.e. the Financial Reporting Council of Nigeria, Act, 2011within the Public Service of the Federal Government of Nigeria and Federal Government Public Service Rules. That in the year 2010, she was redeployed to the Executive Office directly presided over by the 2nd Defendant wherein she reported and worked directly with him. That while working with the 2nd defendant she was at various times subjected to incessant seductive, infidel and sensuous compliments and gestures. That on her continuous rebuff, he resorted to unnecessarily harassing her and would not mind scolding her over mundane issues, even at the time she was heavily pregnant of her third baby. She averred further that when she politely expressed her discomfort to him, she was then redeployed to the Library Unit which is one of the Units under his direct headship. That this afforded him a better opportunity to further his pestering, promiscuous and seductive advances on her, as he could not but come to the Library every day, not to read, but to indulge in endless gist with her, whom he would most times thereafter invite to his office for meaningless, promiscuous and obscene talk, which even though nauseating and irritating to her, she would reluctantly indulge to listen to, in order not to incur his wrath. She continued that no sooner had he become the Acting Executive Secretary of the 1stDefendant in July, 2010 before he eventually became the substantive Executive Secretary that he instructed that the Claimant be redeployed from the Library Unit to the Executive Office as the Executive Office Manager. She pleaded that despite her fears, she had to yield working with him knowing what the consequences would be, were she to object same. That this close working relationship provided him the opportunity to intensify his sexual demands on her and at times, he deliberately caused her to close very late from the office, sometimes past 10.00pm, as against the normal closing time of 4.00pm, even when at most times there is nothing meaningful to warrant the late closure. She pleaded that the 2nd Defendant in a bid to achieve his satanic plot and desires to having sex with her caused the Claimant to travel round the country together with him, purportedly on official duties, to places like Calabar, Uyo, Enugu, Ibadan, Ijebu Ode, Abuja and Minna wherein all of the times after parties have retired to their hotel rooms, the 2nd Defendant would either call or invite her to come over to his room or that he shall be coming to the Claimant's room. She went on that the 2nd defendant went to the despicable extent of proposing to marry her and promised to relocate her to United States of America (USA) if she agrees to divorce her husband, as according to the 2nd Defendant, he is very much ready to divorce his own wife too, whom he claimed not to have any iota of love for, but just trapped in the marriage, the reason he says accounts for why he does not go back home early from work. Claimant continued that she brought her husband in the know of all the 2nd defendant advances towards her.
She continued that sometime in December, 2012, during the 1stDefendant's Press Retreat at Akodo, when she had retired to her room at night, the 2nd defendant came knocking at her door, she opened the door and he entered into her room went down on his knees begging profusely to have sexual intercourse with her and professing how much he loves her. The claimant told the court that she refused his desire and this got him upset and promised to get back at her for refusing his sexual advances for seven years. She stated further that he became very hostile with her, rendered her redundant at work by assigning all the Claimant's work schedules to her subordinates, refused her all privileges and went further to heighten his harassment and threats on the Claimant with words like "when I am done with you, you will cry" "when I am done with you, you will hang yourself". True to his threat, she received a letter of transfer to the 1st Defendant's Liaison Desk at the Corporate Affairs Commission in Kaduna, on the 24th day, 2013. She accepted the transfer even without being paid her due allowances. That few days at Kaduna she received a memo directing her to report to a Grade Level 08 officer, who incidentally was the most Senior Officer at the 1st Defendant's Corporate Affairs Commission office in Kaduna and that on no account should she be granted the indulgence to leave her duty post without clarifying from the junior officer, who in turn must receive directive only from the 2nd Defendant directly. She averred that in the face of these happenings and victimization against her, she visited the Chairperson of the 1st Defendant's Board and narrated to her, her ordeals in the hands of the 2ndDefendant and equally wrote to her that her malicious and punitive transfer to Kaduna was borne out of her refusal to accede to the serial sexual demands and overtures of the 2nd Defendant. This the Chairperson promised to look into and get back to the Claimant, but never did till this moment. She went further to personally write and complain to the Permanent Secretary of the Ministry of Industry, Trade and Investment, which is the supervising Ministry and he promised to intervene but which effort was to no avail as the 2nd Defendant was hell bent on frustrating her out of the 1stDefendant's employment. That she wrote again to the Honourable Minister of the Supervising Ministry copied the Permanent Secretary and the Chairperson of the 1st Defendant's Board and in the face of no result and/or intervention, she met and narrated her ordeals to Public Interest Lawyers league (PILL) and the organization caused a Petition to the Honourable Minister of the Supervising Ministry and copied the Ministry's Permanent Secretary as well as the Chairperson of the 1stDefendant's Board, whom she had previously reported to. Sequel to the petition, he 2nd Defendant convened a Management meeting and the Claimant was invited to the meeting which she attended at the Lagos office of the 1stDefendant on the 6th of August, 2013 for explanation on the alleged posting of her Petition to the Honourable Minister on the Gongnews website, even though no query was issued to her and none had been issued to her till this moment. At the meeting, she told them on inquiry that she was not the one that posted the Petition on the Gongnews website and neither did she give any person or group to so do.
She pleaded that she was invited to the Corporate Affairs Commission Head Office in Abuja for undisclosed reasons on the 28thof August, 2013 wherein she met with six (6) members of the 1st Defendant's Board where she was subjected to trial devoid of any atom or attributes of fair hearing and against Rules 030302 - 030307 of Section 3, Chapter 3 of the Federal Government Public Service Rules. She stated that she was not informed of her allegations in writing, not called to make representation, or given an opportunity to confront her accusers and she was never interdicted. That whilst down with ailment, she got a call from the 1st Defendant's Human Resources Office that she should not resume from her leave at the 1st Defendant Kaduna's office but to report at the Lagos Office. That before she could report at the Lagos Office even though she had caused an Excuse Duty Certificate dated 26th September, 2013 sent to the1stDefendant, she received a letter dated 27th September, 2013 purportedly terminating her appointment with the 1st Defendant. She alleged that her termination was illegal, unlawful and contravened all laws and rules applicable to her employment relationship with the defendants. She averred that by her position on Grade Level 12 Step 2 which she was promoted to vide a letter dated 2nd March, 2010 her gross salary is N709,224.00 (Seven Hundred and Nine Thousand, Two Hundred and Twenty-Four Naira) only and which took effect on the 21st day of March, 2010. That her full entitlement in accordance with her condition of service for the seven (7) years plus she had put in the service of the 1st Defendant is N7,845,790.00.That she had at all times paid her pension contribution entitlement as prescribed by the Pension Act. That the Court can rightly order her reinstatement into the services of the 1st Defendant since the termination of her employment is illegal and/or unlawful.
The claimant during trial testified for herself as CW1 and her testimony is in all fours with the facts stated supra. CW1 stated under cross examination that she was ordained a Pastor in 2002. That she is due for promotion every 3 years and promotion is automatic. She stated that she was promoted in 2006. That while in the establishment of the 1st defendant, the 2nd defendant sexually harassed her since 2006 when she first resumed at the defendant’s establishment. She stated that she never complained to her employer because it might place her job on the line. In her understanding sexual harassment to her means the period when the 2nd defendant keeps her late at work, tells her that he loves her countless times, begs her to accept his proposal to be his girlfriend. She admitted that she knows that sexual harassment is a crime. She stated that she never reported this harassment to the Police because she doesn’t want to lose her job. That she never had sexual intercourse with the 2nd defendant. That the 2nd defendant invites her to his office and as soon as he became the Acting Chief Executive, he instructed that the claimant be redeployed to executive office. She contends that the 2nd defendant takes her round the country as his P.A and though they stay in different hotels, he comes to her hotel to disturb her. She stated that he sends her suggestive text messages. That her husband has asked her to resign but she told him that it is her spiritual challenge. He stated that she first wrote a complaint when she was transferred to Kaduna because she felt it was borne out of her resistance to the sexual advances of the 2nd defendant. She first wrote to the Chairperson of the Board of the 1st defendant and the Permanent Secretary of the Federal Ministry of Trade complaining about the 2nd defendant's sensual advances to her, the refusal of which culminated in her transfer to Kaduna. It was in the absence of any response from the two authorities that she did a letter to an NGO, known as Public Interest Lawyers narrating her ordeal to them in the hands of the 2nd defendant though it was not part of the rules of engagement to send petition to an NGO. She stated that the investigation conducted by the 1st defendant was a kangaroo investigation because those persons she approached to beg the 2nd defendant to stop making advances to her were those that sat on the panel. She testified that she has not received her entitlement. That she claims 100 Million Naira because she was traumatized and a victim of sexual harassment and having objected to such at the work place, he became hostile to her by transferring her to Kaduna.
On re-examination by her counsel claimant stated that her official closing time is 4.pm but was always kept in the office by the 2nd defendant till 10pm or 11pm.
The CW2 is one Ibrahim Usman the Head of Admin Citizen Rights Department of the public interest lawyers’ league. He adopted his written statement on oath and confirmed that his averments in paragraph 5 is correct. He stated that the claimant is their client, that they haven’t heard from the 2nd defendant who was invited by them to state his own side of the story. That his averment was based on what the claimant told him. That he is aware that sexual harassment is a crime. That they did not advise her to report to the 1st defendant internal investigatory agencies and its agencies is not vested with authority to investigate sexual offences. He admitted publishing the allegation of sexual harassment against the 2nd defendant on Gongnews an internet news media. He went on that they wrote to the Board of the 1st defendant and there was no acknowledgment hence they had to publish it. He denied that he aided and abetted the claimant to engage on a gold digging mission.
The CW3, he adopted his sworn deposition and stated that he is the claimant’s husband who testified that his wife told him that the 2nd defendant is sexually harassing her in her place of work. He stated that he believes the 2nd defendant tried to have sexual intercourse with his wife. That he did not do anything in the matter because the 2nd defendant had always pleaded and was cordial about it. He read out in open Court the messages sent by the 2nd defendant to the claimant, which was forwarded to his phone by his wife, which confirmed that the 2nddefendanttruly made such advances to his wife. He admitted that he was aware of the series of journey his wife made with the 2nd defendant and allowed her because, first they were official and that the 2nd defendant only sexually harasses her and not molestation, and that he trusts that his wife will never yield to such. That his wife was paid for her official job as it was official trip. He continued that while the harassment persisted, he asked her to resign but his wife told him that she can cope. That it is not true that he and his wife are on a gold digging venture. He went on that his wife has not been paid her entitlement and finally urged the Court to do justice in favour of his wife the claimant.
All the claimant's witnesses tendered documents were admitted and marked as Exhibits PA1-PA18.
The 1st and 2nd defendants filed a joint statement of defence, wherein they jointly pleaded that prior to the Claimant's redeployment to the 2nd Defendant's office, he had worked in different capacities for the 1stDefendant and the Government of Nigeria, for many years without blemish or allegation of any act of indiscipline, harassment of any sort none the least "sexual" whatsoever. That from the inception of the 2nd Defendants employment with the 1stDefendant and also till date, hard work, honesty, integrity and loyalty has always been his watchword and he has always performed his obligations to the 1stDefendant with utmost good faith, and without any fear or favour to anybody whatsoever. It is the further statement of the defendants that soon after the Claimant was deployed to serve as Executive Office Manager to the 2nd Defendant, the 2nd Defendant observed that the Claimant clearly exhibited the following traits to wit:
a. Poor performance arising from poor attitude and disposition to work
b. Absent mindedness
c. Low productivity and laziness
d. Dishonesty with the handling of impress/funds kept in her custody
e. General incompetence
The defendants pleaded further that the claimant introduced a man to the 2nd defendant’s office claiming that the man was her husband and a Pastor and General Overseer with Prevailing Life Ministry Church in Lagos State, shortly after the Claimant was deployed to the 2nd Defendant's office. That the 2nd defendant discovered through the analysis of the status of churches registered with the Corporate Affairs Commission that although such churches exist in the Registrar's book in the Corporate Affairs Commission, they have never filed annual returns to the Corporate Affairs Commission. That the claimant’s husband and Pastor contacted the 2nd Defendant and informed him of the need to offer prayers for him, and in addition indicated a prophesy that the 2nd Defendant will soon be promoted to a higher office in Nigeria including the need to rid the office of the 2nd Defendant of some perceived evil forces and enemies among the members of staff of the 1st Defendant. This made him to suspect that the claimant was up to some mischief but he continued working with her. Defendants contended that Claimant was morally deficient. This was shown at the point when the 2nd Defendant consistently warned the Claimant to sit up and show more seriousness to her job, rather than doing so, the Claimant embarked on gradual and consistent seduction of the 2ndDefendant so as to make him compromise the work standard of the 1stDefendant as it relates to the Claimant. That when it became obvious that she would not improve, the 2nd defendant had to transfer her to Kaduna vide an internal memo dated 22nd of May, 2013 with effect from June 3rd, 2013. That the claimant flouted the constituted authority and instead of resuming duty on June 3, 2013 in line with the letter of transfer dated May 24, 2013, the Claimant resumed duty two days later on June 5, 2013, sought an excuse from the defendant for 10 days, wrote a petition to the Governing Council and the Honourable Minister of Trade and Investment and caused a copy of the Petition to be posted on Gongnews website an online Magazine. The defendants pleaded that by a correspondence dated August 2, 2013, issued under the hand of E. E. Okoli (Mrs.) the Claimant was requested to report to the 1st Defendant on August 6, 2013 to clarify some issues raised in the said Petition but she refused to submit herself to the authority and responded that she has nothing to clarify beyond the issues of intimidation, sexual harassment. That prior to the Claimant's transfer to Kaduna, she applied for annual leave which was refused by the 1stDefendant on the ground that same was not in consonance with the approved leave roaster for the year 2013 and by extension the application was not in line with the approved Council's policy on leave. It stated that the allegation by the claimant against the 2nd defendant in regards to sexual advances to her are all blatant lies to smear his good name and by extension that of the 1st Defendant as several other staff has worked with the 2nd defendant without any reported cases of sexual intimidation.
That the Claimant’s employment with the 1st Defendant is tainted with illegality and not subject to the Federal Civil Service Rules as alleged or at all. That the Claimant's employment is in the circumstance governed by the letter of employment dated February 28, 2006. That even in the event that the Federal Civil Service Rules (PSR) were applicable to her employment, the Claimant has grossly misconducted herself in the course of her employment in a manner which merited the termination of her employment in line with the Public Service Rules. That the Defendants being aware of the nature of her employment proceeded nonetheless in strict compliance with the Public Service Rules, in the determination and or termination of her employment by affording claimant an opportunity to state her case. That the Committee after thorough discussions came up with some recommendations including but not limited to:
1. That the posting of the Petition on the internet by the Claimant is not in conformity with behavior expected of a civil servant.
2. That the said Claimant's Petition did not follow normal routine process
3. That the 2nd Defendant may also wish to file criminal charges against the Claimant for threatening text messages to the 2nd Defendant.
4. That the allegation of sexual harassment levied against the 2nd Defendant lacked substance.
5. That the transfer of the Claimant to the Kaduna branch of the 1stDefendant was done in conformity with the Service Rules and all her allowances due to her was paid.
Defendants continued that in an emergency meeting convened by the board of the 1st Defendant held on September 12th 2013, the Board ratified the recommendation of the Committee that claimant's employment be terminated with immediate effect. That claimant’s application for leave several times affected her duties adversely and created hardship on the 1st Defendant. The dates includes but not limited to, October 31, 2006, May 8, 2007, October 15, 2007, December19, 2007, February 13, 2008, May 13, 2008, August 19, 2008, September 3, 2008, August 25, 2009, February 8, 2010, June 25, 2010, March 21,2011, May 6,2011, September 21,2011, April 25,2012, July 16, 2012, October 23, 2012, February 14, 2013 and April 19, 2012. That the Claimant was paid her legitimate entitlements upon the termination of her appointment with the 1st Defendant which payment she voluntarily accepted without complaint to the Defendants or any other person. That the payment of pension is extraneous and it is not within their authority to determine. That the Claimant's claims are unfounded, frivolous, vexatious, gold digging and should be dismissed with substantial costs.
The 1st and 2nd defendants during trial testified through DW1 and DW2, i.e. one Mrs Juliana Shibigem and Umar Sanusi. DW1adopted her sworn deposition and tendered documents which were admitted and marked as Exhibits JS1-JS10.She testified that she works for the 1stdefendant in which the 2nddefendant is the CEO and that is the only form of relationship she has with him, nothing informal. In her testimony, she mentioned that she is next in rank to Mr. Sanusi, HOD of the Admin Dept and that the CEO summoned her and made some unwritten reports to Mr. Sanusi about the claimant. She agreed that issues of the 2nd defendant’s sexual habits is personal to him and as such cannot discuss with her. She also mentioned that she wouldn’t know if he discusses such with the 1st defendant. She gave her job description under cross examination to include Administrator, Human Resources and general office management. That she and the CEO, i.e. the 2nd defendant, work within the same premises but different floors. She described the work schedule of the claimant to include amongst other things, duties like receiving and dealing with correspondences, attending to visitors, making reservations in case the 2nd defendant has engagements outside the office and sometimes it could warrant attending to outside engagements. That she doesn’t have unrestricted access to the office of the 2nd defendant as he can invite anybody any time if there are issues to be discussed. She gave her usual working hours to be between 8.00am to between 5/6pm depending on the workload. She said the official working hours of the 1st defendant is 8:00am to 5pm but work may be extended depending on exigencies of the office. She testified that the claimant is supposed to close at 5 or 6pm but that she is also aware that the 2nd defendant keeps the claimant in his office till 10:00pm. She said she would be surprised to know that series of sexual harassment issues were made on the claimant by the 2nd defendant because of the level of work they do. She told the Court that the claimant got several promotions and there was no time her promotion was delayed. She further told the Court that the criteria considered before a staff could be promoted includes; the staff must have spent a minimum of 3 years, performance and conduct of the staff will be considered and acts of indolence, absenteeism, poor attitude to work does not earn promotion. She confirmed that the claimant was not issued any query and if not that she was sacked, she would have earned another promotion. That claimant is entitled to annual leave of 30 days and she can’t say if the claimant at any time exceeded the number of days she should stay on leave. That before claimant was employed she was interviewed and given employment letter and that at the point of employing her she met all the requirements as regards qualification. She stated that there was nothing irregular about claimant's employment. She told the Court that claimant was transferred to Kaduna by the 2nd defendant and that he had no other choice than to do so. That the 1st defendant has management that consists of the Senior staff, HOD’s and some of their duties is that they meet regularly to iron out issues assigned to them and outside the Management, the 1stdefendant has powers to discipline employees, transfer, promote and or terminate employment of its staff. That some of the powers are vested in the Management but they make recommendation to the Board who makes final decision on them. She went further in her testimony that sexual overtures are sometimes done openly and that she wouldn’t have expected the 2nddefendant to show to other staff that he is wooing the claimant. She said she is not in a position to tell the Court that the 2nd defendant never made sexual overtures to the claimant. She admitted that it is not proper in the rules of service for a senior officer to report to a grade level 8 officer, a junior officer and that she was only called upon in her official capacity to come and sign the witness statement on oath.
DW2, Umar Sanusi; testified on oath and tendered documents admitted and marked ‘exhibit US’. In his testimony, he stated that he works for the 1st defendant and made reference to payments of entitlements to the claimant. He denied knowing about the sexual harassment and complaint of the claimant. He said he sat throughout the proceeding of the committee when the claimant appeared but later went on leave and travelled to Saudi on pilgrimage and hence was away during the other sittings of the committee. He mentioned that he was not present at the Committee when the 2nd defendant testified as he excused himself at that time but present throughout the proceedings when claimant testified. He stated further that he prepared a draft report but was not present when the committee concluded and wrote the Report ‘Exh PA18’ which he believed must have been written by the person who took over from him. He said he was there when claimant alleged that she received text messages from the 2nd defendant and she read the text messages to the committee. That even though the claimant asked the committee to call for her call record/log to confirm what she said, he did not contact MTN for any record. He said he did not hear the 2nd defendant’s response to claimant’s allegation against him but only heard from the committee. He testified that claimant and 2nd defendant were invited separately. He continued that claimant worked under him and did not have to at any time issue her any query even though he received a complaint against her. He stated that claimant was invited by e-mail to attend the F& G committee. He identified ‘exh PA12’ as an invitation to an important meeting and ‘exh PA3’ as rules of discipline. He stated that exh PA12 complied with rules 5 and 6 and 030307 of the Civil service Rules. He stated that the conclusion of the deliberations was not sent to the Federal Civil service because according to DW2, the 1st defendant does not have to. He admitted that the Chairman confirmed the petition written against the 2nd defendant by the claimant but the report is not in the minutes of the committee's report. He went on that he does not know if the committee found that the 2nd defendant was making indecent comments and jokes at the claimant. He posited that with respect to claimant’s termination it is the absolute responsibility of the Board of the council to do so.
The claimant in reply to the defendants' statement of defence traversed that she has never been issued query with regards to the allegations levied against her by the defendants. That while working with the 2nd defendant she was made to stay as late as 10.00pm at night and was not paid for the extra hours put in at work, by way of over time allowances. She averred that she was only compelled to introduce her husband to the 2nd Defendant in her bid to discourage and dissuade the 2rdDefendant from his incessant sexual harassment and demands on her when all efforts by her to make the 2ndDefendant stop his pestering on her would not yield any fruitful result. She stated further that upon her transfer to Kaduna she called one Mrs Kate Aliu a junior officer to her and whom she was supposed to report to, to give her Routine and Scope of Duties, and also relevant training on Registration before proceeding to resume in her new Station in Kaduna on Monday, the 3rd day of June, 2013, but learnt that the said Mrs. Kate Aliu had been officially away to Canada on a Training Course and was due back to resume office on the 3rd day of June, 2013. That upon resumption, and while Mrs Aliu was putting her through the Routine, the 2ndDefendant summoned her and fiercely warned her to stop attending and/or entertaining any form of briefing to claimant and also threatened that should she not report in Kaduna office that very day of 3rd June, 2013 "the claimant would dance to a different music". That her travel allowances were not paid to her until the 7thday of June, 2013, well after she had resumed in Kaduna office on Wednesday, the 5th day of June, 2013. She states that the Defendants Joint Statement of Defence should be discountenanced as same is diversionary, a total sham, full of concocted and fabricated falsehood, lack evidential and probative value.
At the close of trial, as it is customary to do, the defendants on the 17th of May, 2016, filed their joint final written address wherein they framed four issues for the Court’s consideration viz;
1. Whether the Claimant has proven the allegation of sexual harassment against her by the 2nd Defendant beyond all reasonable doubt.
2. Whether the Claimant was given fair hearing by the Committee set up by the 1st Defendant to enquire into her conducts leading to the termination of her employment.
3. Whether the claimant's employment was lawfully terminated by the 1st Defendant.
4. Whether the claimant is not estopped from making further monetary claims against the 1st defendant having collected/accepted her entitlements from the 1st Defendant.
On issue one, learned counsel to the defendant submitted that the claimant has made a very weighty allegation of sexual harassment, abuse or molestation against the 2nd Defendant and contended that it was her refusal to yield to the sexual advances of the 2nd Defendant that led to the termination of her appointment. Counsel submits that she stated in her averment that the 2nd defendant, her boss scripted and profiled her to accompany him in travels in order to whisk her into accepting his desires and on certain nights after they had both retired to their different rooms he would call and ask her to come over to his room or vice versa. It must be noted at this point, that no single hotel receipt or evidence of any such travel and sleeping in Hotels by the claimant was put before this Court for its consideration and to enable the Court reach an informed and well considered decision. Counsel stated that it is not in dispute that sexual harassment is a crime which must be dealt with according to law. The claimant has only relied on words of mouth to sustain her claim of sexual harassment of 7 years. He posited that to sustain a claim of sexual harassment claimant ought to have known that the only way of dealing with issues as weighty as this is to report to authorities for proper investigation, and probable prosecution if an indictment is obtained against the 2ndDefendant. He argued that criminal infractions are serious offences which by our laws must be proven beyond reasonable doubt for appropriate sanctions to be met out to the alleged offender. He cited the case of ULUEBEKA V, STATE [2011] 4 NWLR (PT 1237) at 361where the court held that;
"Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution it depends on the quality of the evidence adduced by the prosecution"
Counsel submitted that in an allegation such as this the claimant has the onus of proof of the allegations of sexual harassment in this matter to the satisfaction of the Court. She has the burden to convincingly establish this claim. However the purported evidence of the claimant is not convincing enough to establish her case of sexual offence against the 2nd defendant before the Court. Counsel posited that it is the Claimant's evidence that the 2nd Defendant sent text messages to her mobile phone. Yet, in the trial of this suit, the claimant as CWI yet again, failed to place anything before this Court to confirm or at least show that the 2nd Defendant allegedly sent such text messages to her. Also he stated that the entire evidence of CW2 is mere hearsay which is centered on the facts given to him by the claimant who is his wife. In that regards, counsel urged the Court to discountenance same as it is unreliable. He submitted further that the evidence of CW3 is unreliable as that of CWI and CW2. CW3is a representative of a non-governmental organization. He testified under oath confirming that the allegation of sexual harassment by the Claimant was published in an online news outfit named "The Gong news". That it is surprising that CW2's NGO which describes themselves as Public Interest Lawyers League (PILL) could take steps to publish facts relating to a weighty allegation of sexual harassment without first advising the claimant to go to the relevant authorities for investigation and other possible actions. That having done all they did in relation to the complaints of CWI, their Client without properly advising the Claimant to take her complaint to the appropriate authority, the evidence of CW2 therefore lacks the necessary probative value to give it weight and make it believable. CW2 have only come to Court to give evidence in support of the illegality carried out by them on behalf of the complaint.
Counsel posited that contrary to the claimant averment that she complained about her plight to the 1st defendant urging the Permanent Secretary to intervene in the matter, her alleged complaint to the Permanent secretary, Ministry of industry, Trade and Investment was dated August 13th, 2013 Exhibit PA9, was made over 7years after the alleged sexual harassment purportedly commenced. That it is interesting to note that Exhibits PA8, PA9 and PA10. All letters dated13th of August. 2013 were all made after the claimant was transferred to the Kaduna office of the 1st defendant, a transfer which did not go down well with her. That the only time the Claimant complained of her so called sexual harassment out of the 7 years of harassment was about three months after her transfer to the 1st Defendant's office in Kaduna, a transfer she claimed was born out of malice for her purported refusal to yield to her claim of sexual harassment. A claim she failed to prove before the Court. He posited that having failed to prove this claim beyond reasonable doubt, the claimant claims of sexual harassment must be treated for what it is a gold digging adventure and a calculated attempt to embarrass the 1st Defendant, a Federal Regulatory Agency and destroy the image and character of the 2nd Defendant. He urged the Court to so hold.
On issue two, counsel posited that the 1st Defendant vide Exhibit PA12 gave the claimant fair hearing in dealing with her conducts leading to the termination of her employment with the 1st Defendant. That the report of the said Finance and General Purpose Committee (Exhibit JS4) shows clearly how the proceedings of the committee went and the claimant willfully submitted herself to the invitation of the 1st Defendant, took part in the deliberations of the committee and never complained thereafter. Therefore he submitted that it is an afterthought for the claimant to give the impression that the 1st defendant did not give her fair hearing in the events leading to the termination of her employment by the 1st Defendant. He further submitted that the process adopted by the 1st defendant did not run contrary to the claimant status of employment as her employment with the 1st Defendant is purely a master servant relationship which is not clothed in any status, hence the said appointment can be terminated at any time subject only to the contents of Exhibit PA tendered by the Claimant.
On issue three, counsel submitted that having said that the employment of the defendant is one of master and servant, it is a well established point of law that a master can terminate the appointment of a servant for any reason or for no reason at all upon due notice or on payment of salary in lieu of notice. He cited the case of NIGERIA AIRWAYS LTD V. AHMADU [1991] 6 NWLR (198) 492 AT 494 AND 495. Continuing, he posited that claimant made a vain effort to give the impression that her employment was such that has statutory flavor. He stated that the employment of the claimant was defined in terms by her letter of employment, Exhibit PA. Exhibit PA never made reference that the claimant's appointment shall be defined or construed by any other statute or rules/regulations apart from the said employment letter which well stated the claimant's status with the 1st Defendant, her conditions of appointment, indeed the mode of termination of that appointment. That the claimant claims that she was pensionable does not mean that her contract of employment was protected by statute.
Counsel posited that claimant’s counsel under cross examination of DW2 emphasized on whether Civil Service Rules were followed in the process leading to the termination of the appointment of the claimant. DW2, in his response stated clearly that the public service rules do not guide employment by the 1st Defendant. He further stated that the Public Service Rules have delegated the powers to act independently on the 1st Defendant. He cited the provisions of the Federal Government Service Public Service Rules which states as follows:
“Rule 160201(a) "Statutory Boards/ Councils shall set operational and administrative policies in accordance with government policy directives and supervise the implementation of such policies. The administrative policies may include those relating to appointment, promotion and discipline of staff'.
On disciplinary matters, Rule 160501 of the rules states as follows:
"The power to exercise disciplinary control over officers in parastatals is vested in the supervisory Boards/Councils in accordance with their respective conditions of service".
Counsel sequel to the above urged the court to hold that the 1st Defendant has the power to terminate the employment of the claimant subject only to the contract of employment of the claimant being Exhibit PA and nothing more.
On issue four, counsel submitted that to strengthen the evidence of the Defendants, the representative of Union Bank Plc, appearing in Court through a Subpoena, tendered the statement of account of the claimant with the Bank and an examination of same will show that the 1st Defendant paid the sum of over =N=400, 818, 04 (Four Hundred Thousand, Eight Hundred and Eighteen Naira, Four Kobo) into the account of the Claimant as her entitlement. This fact was corroborated by Exhibit J59 same being the payment voucher dated the 10th of October, 2013. Exhibit J59. He posited that the claimant's counsel did not cross examine DW2 on the payment instrument tendered by him in evidence on behalf of the Defendants. Having not cross-examined DW2 on this piece of evidence which was not disputed counsel urged the Court to take same as proven. He cited the case of MUDASIRU V. ABDULAHI [2011] 7 NWLR (PT 1247) 591at 600 where it was held that where there is nothing to contradict or controvert an evidence, the court will be on a firm ground to admit and rely on same. He stated that having established that claimant accepted the entitlement she is estopped from further claiming from the defendants. He cited the case of NWAKORWBI V. UDEORAH [2013] 7 NWLR (PT 1354) 499 AT 503.
On the claim of the sum of N100,000,000.00 (One Hundred Million Naira) counsel posited that damages are not awarded for a mere claim of a breach of contract and the fact that the 1st Defendant acted within its right to terminate the employment of the Claimant makes it more imperative that this claim for damages is discountenanced by the Court. He cited the case of EZENDUKA V. N.S. ENG. CO. LTD [2002] 6 NWLR (PT. 762) 202 AT 207, the Court held as follows:
"On the Appellant claim for general damages respectfully, general damages is not awarded or cognizable in an action founded on a claim for breach of contract".
He urged the Court to hold in his favour.
The claimant on the 17th of May, 2016 filed her final written address wherein she distilled three issues for the Court's determination.
1. Was the Claimant sexually harassed?
2. Was Claimant's employment terminated lawfully?
3. What is the effect of Exhibit US3, i.e. payment advice from Union Bank of Nigeria?
On issue one counsel defining sexual harassment cited the case of EJIEKE MADUKA V MICROSOFT NIGERIA LTD &ORS. [2014] 41 NLLR (PT 125) 67where the court defined sexual harassment in terms of General Recommendation 19 of the Convention on the Elimination of All Forms of discrimination Against Women (CEDAW) as follows:-
Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.
Continuing, he cited the case of Bangladesh National Women Lawyers Association v Government of Bangladesh and Others, a judgment delivered on 14/5/2009 in petition No 5916 of 2008, the supreme Court of Bangladesh, High Court Division!, (the BNWLA Case) issued a directive on sexual harassment for the guidance of the authorities and persons in that country. The directive stated that sexual harassment includes:-
a. Unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances;
b. Attempts or efforts to establish physical relation having sexual implication by abuse of administrative, authoritative or professional powers;
c. Sexually coloured verbal representation;
d. Demand or request for sexual favours;
e. Showing pornography;
f. Sexually coloured remark or gesture;
g. Indecent gesture, teasing through abusive language, stalking, joking having sexual implication.
h. Insult through letters, telephone calls, cell phone calls, SMS, pottering, notice, cartoon, writing on bench, chair, table, notice boards, walls of
office, factory, classroom, washroom having sexual implication.
i. Taking still or video photographs for the purpose of blackmailing and character assassination;
j. Preventing participation in sports, cultural, organizational and academic
activities on the ground of sex and/or for the purpose of sexual harassment;
k. Making love proposal and exerting pressure or posing threats in case of
refusal to love proposal;
l. Attempt to establish sexual relation by intimidation, deception or false assurance.
He posited that as these acts were carried out by the 2nd defendant in the course of his employment, the 1st defendant is vicariously liable to the Claimant. He continued by submitting that the acts of the 2nd defendant were unwelcome sexual advances by words and text messages, that the resistance of these advances, made the claimant disadvantaged at work and the 2nd defendant created a hostile environment for her at work. He stated that Defendants assumes, wrongly, that sexual harassment is a crime and referred to Sections 23(1) &(2), 359 and 360 of the Criminal Code. That Section 23 of the Criminal Code, Sections 359 and 360 of the code do not define sexual harassment. Counsel stated that insisting on the proof beyond reasonable doubt as the defendants wants the Court to, will mean that many cases of sexual harassment would not be reported or punished.
On the proof of sexual harassment as alleged by the defendants, counsel argued that there was no need to proof sexual harassment as the incidents were admitted by the defendants on the pleadings and also that the evidence tendered by the defendants especially to the Finance and General Purpose Committee (FGPC) Report on the Petition Written by Claimant (Exhibit PA is/Exhibit JS 5) and the extract of the Emergency Board Meeting of the defendant (Exhibit JS 9) reveals vides Exhibit PA and Exhibit JS5 that the committee recommends that the CEO (i.e. the 2nd defendant 'avoid visiting his female staff late at night.’)This was after the committee had advised him on page 6 of the report, to avoid this for 'appearance sake.' The 2nd defendant did not deny that he made such visits to the Claimant but claimed (according to the report) that his mind was plain. Exhibit JS 9 (page 3), the following decision of the Board was recorded:-
'That the ES/CEO be advised to desist from using inappropriate jokes especially on female staff.'
He urged the Court to hold that the claimant has succeeded in proving her case of sexual harassment.
On issue two, counsel posited that the termination of claimant's employment was not lawful. That her termination was discriminatory against her and amounted to inhuman treatment contrary to her fundamental rights guaranteed under the Constitution. He submitted that the decision to terminate claimant’s employment was based on the report of the 1st defendant's FGPC (exhibit PA 18/JS5).However the proceeding of this committee was fraught with breach of fair hearing and so rendered the report illegal and unacceptable. He stated that;
(a) Claimant was never informed that she was going to face an investigating panel. See the letter of invitation exhibit PA12.
(b) DW2, who was secretary of the panel, did not write the report and was not in the country when it was written as he travelled for hajj. Yet he signed the report as the author/secretary. See cross examination of DW2.
(c) DW2 heard the Claimant testify but was sent out when 2nd defendant testified. So he did not hear 2nd defendant's testimony.
(d) Claimant was not allowed or given opportunity to confront the 2nd defendant.
(e) The committee considered and acted on extraneous information when itreceived information from the chairman of the Board (in the absence of the claimant) about claimant's communication with her.
Continuing, counsel stated that the Board sat to consider the report, i.e. Exhibit PA 18/Exhibit JS4, and it called upon one Mrs. Shibigem (DW1) who was not a member of the FGPC and who did not seat over the complaint against the claimant and asked her questions concerning the allegations against the Claimant. Mrs. Shibigem volunteered answers to the questions, in the course of which she raised new allegations relating to financial impropriety against the Claimant. At that stage, Claimant had no opportunity to defend herself on these new allegations. Thus the Board received information or representations in the absence of the claimant. The effect is that the decision of the Board to terminate the Claimant was also unlawful, null and void. It is counsel submission that the defendant’s assertion that the termination of the claimant’s employment by the 1st defendant is lawful is erroneous on the basis that the 1st defendant is controlled by statute and the statute prescribed that where a staff is to be removed for misconduct, then such staff must be given opportunity to defend himself. He cited Rule 030307 of the Federal Government Public Service Rules sub rules (i) (ii) (v) (vi) (vii) &(viii) thereof. This rule applies to the Claimant's employment by virtue of Section 22 of the FRCN Act No 6 of 2011. He posited that the claimant’s employment was terminated on the grounds of misconduct and according to Rule 030307 of the Federal Government Public Service Rules, the defendants could dismiss the Claimant if and only if it followed the following procedure:-
(a) The officer involved must be issued a query in writing notifying her inter alia of the ground on which it was proposed to discipline her. The query must relate the circumstances of the offence and the rule or regulation which the officer has broken and the likely penalty. See Rule 030307 (i)
(b). The query or preliminary letter shall be in the format shown in Appendix II. See Rule 030307 (ii).
(c) . Where a board of enquiry is set up, the head of the officer's department shall not be a member of the board. In this case DW2, who was the head of claimant's department, was the secretary of the board! See Rule 030307 (v).
(d) The officer shall be informed that on a specific day the question of her dismissal shall be brought before the board and she shall be required to appear before it to defend herself and shall be entitled to call witnesses. See Rule 030307 (vi).
(e). Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless she has previously been supplied with a copy thereof or given access thereto. See Rule 030307 (vii).
He posited that none of these rules was adhered to by the defendants in the case of the Claimant. That though the specific language of Rule 030307 refers to 'dismissal' the duty on the defendants to adhere to its provisions in the case of the Claimant still remained notwithstanding that the language used in removing her referred to her purported removal from office as 'termination' not 'dismissal.' The two terms have the same effect, i.e. that person in question has been removed from office. He urged the court to so hold.
On issue three, counsel submitted that contrary to submission of the defendant’s counsel that claimant is estopped from making claims against it by reason that she has been paid all entitlement vide Exhibit US3, i.e. payment advice from Union Bank of Nigeria, there is no pleading on which Exhibit US3 can stand. That in the circumstances, no estoppel can be raised in this case as Estoppel must be specifically pleaded and several authorities have held that payment of salary in lieu of notice or entitlements does not debar a Claimant from challenging termination of employment with statutory flavour. He cited the case of ADEYEFA V BAMGBOYE [2014] 11 NWLR (PT 1419) SC 520 AT 543B-C; HASSAN V ABU, ZARIA [2011] 1 NWLR (PT 1259) 417 @ 467;He urged the court to resolve all the issues in her favour and grant the reliefs claimed
By way of reply on points of law, defendant’ counsel submitted that the claimant's failed to proof that the 2nd defendant transferred her to his office for the purpose of taking sexual advantage of her or even had made sexual advances to her. He stated that claimant having not proved same, he urged the court to find against her.
On the issue of whether claimant is estopped from receiving entitlement, counsel argued that Defendants actively pleaded and led evidence to show that the claimant’s entitlements were settled and paid her upon the termination of her employment. These facts are not in denial or in issue in the entirety of this proceeding. That the attempt by the claimant to create admission where there is not only misconceived but an attempt to mislead this Court.
It is counsel’s position that claimant has failed to prove the purported text messages as averred text message exchanged by her and the 2nd Defendant in the cause of her employment, that the said phone or any other gadget to show or suggest the entirety of the text messages exchanged by both parties was not before the Court as evidence. He stated that having failed to front load anything in evidence as to the facts of text messages exchanged, he submitted that the averments and submission from the claimant in relation to the contents of text messages in her phone are mere opinion, which are speculative in nature and which can not avail the claimant. He urged the Court to hold so.
That the cases of MADUAKA V MICROSOFT NIGERIA LTD AND ORS supra and other cases cited by the claimant on sexual harassment are in contradistinction with this present case.
It is counsel’s submission that contrary to claimant’s submission with respect to Exhibit JS9, that at nowhere shows an admission by the defendant as to sexual harassment by the 2nd Defendant. That in opposition to the claimant’s submission, with regards to her status, submitted that Exhibit PA, the letter of employment of the claimant is explicit and speaks for itself with regards to her status of employment with the defendant. Learned Counsel urged the Court to dismiss this suit in its entirety and grant substantial costs to the defendants.
Upon a careful consideration of the processes filed in this case, the written submissions of both learned counsel and the authorities cited in support of their respective arguments, and also observed the demeanor of the witnesses, i.e. the claimant, her husband and one Ibrahim Usman on the one part and Umar Sanusi and one Mrs Juliana Shibigem on behalf of both the 1st and 2nd defendants on the other part; it is in the light of all these that I frame these issues for the just determination of this case viz:
1. Whether or not the termination of claimant's employment by the 1st defendant was unlawful, and
2. Whether or not the claimant was sexually harassed by the 2nd defendant and thereby breached her fundamental right to human dignity and self worth/respect.
It is the claimant’s contention that she was employed by the 1st defendant then known as the Nigerian Accounting Standard Board on the 28th of February, 2006 as Deputy Manager (Admin) on Grade Level 10, Step 2. That her employment was confirmed six months after and she was promoted to Level 12 Step 2 effective from 1st March, 2010. That her employment is not regulated by a Condition of Service of staff made by the Board of the 1st Defendant but as provided by the extant Act, i..e. the Financial Reporting Council of Nigeria, Act, 2011within the Public Service of the Federal Government of Nigeria and Federal Government Public Service Rules. That in the year 2010, she was redeployed to the Executive Office directly presided over by the 2nd Defendant wherein she reported and worked directly with him. That while working with the 2nd defendant she was at various times subjected to incessant seductive, infidel and sensuous compliments and gestures, thereby sexually harassed her.
The 1st and 2nd defendants, on their own part jointly averred that prior to the Claimant's redeployment to the 2nd Defendant's office, he had worked in different capacities for the 1stDefendant and the Government of Nigeria, for many years without blemish or allegation of any act of indiscipline, harassment of any sort none the least "sexual" whatsoever. That from the inception of the 2nd Defendants employment with the 1stDefendant and also till date, hard work honesty integrity and loyalty has always been his watchword and he has always performed his obligations to the 1stDefendant with utmost good faith, and without any fear or favour to anybody whatsoever. That soon after the Claimant was deployed to serve as Executive Office Manager to the 2nd Defendant, the 2nd Defendant observed the claimant's Poor performance arising from poor attitude and disposition to work, absent mindedness, Low productivity and laziness, Dishonesty with the handling of impress/funds kept in her custody and her general incompetence.
That when it became obvious that she would not improve, the 2nd defendant had to transfer her to Kaduna vide an internal memo dated 22nd of May, 2013 with effect from June 3rd, 2013.It is the further joint averment of the defendants that the Claimant employment with the 1st Defendant is tainted with illegality and not subject to the Federal Civil Service Rules as alleged or at all. That the Claimant's employment is in the circumstance governed by the letter of employment dated February 28, 2006. That even in the event that the Federal Civil Service Rules (Service Rules) were applicable to her employment, the, Claimant has grossly misconducted herself in the course of her employment in a manner which merited the termination of her employment in line with the Service Rules.
Now, it is pertinent at this stage before going on with this judgment to determine the status of the claimant, in view of the fact that parties are at cross purposes on this issue, i.e. whether or not her employment has a status of statutory employment. To the claimant, her employment is that of a statutory employment, see paragraphs 9,10, and 11 of the statement of facts; while the defendants contend otherwise. It is the law that he who asserts must prove the existence of his assertion. See Section 137 of the Evidence Act, 2011.The claimant in this suit had pleaded in her averment that her employment is governed by the extant Act, which is the Financial Reporting Council of Nigeria, Act, 2011. It is necessary to also state that the fact that an employer is a creation of statute or statutory body, does not without more, raise the legal status of its employees over and above the normal common law master and servant relationship. Also, the fact that a person is pensionable Federal public servant does not mean that his contract of employment is protected by statute. Whether a contract of employment is governed by statute or not depends on the interpretation of the contractual document or the applicable statute. The character of an appointment and the status of the employee is determined by the legal character of the contract. Contracts of employment are determinable by the agreement of the parties’ simplicita. See the cases of ALHASSAN V. ABU ZARIA [2011] 11NWLR (PT. 1259, 417 @ 464;NITEL V JATTAU [1996] 1 NWLR (PT. 425) 392 CA; INSTITUTE OF HEALTH AHMADU BELLO UNIVERSITY HOSPITAL MANANGEMENT BOARD V MRS JUMMAI R.I ANYIP [2015] 6 ACELR PAGE 27.IMOLOAME V. WAEC (1992) 9 NWLR(PT. 265) 303.Where it was held that the condition for appointment or determination of a contract of service with a statutory flavour are governed by the provisions of a statute, such that a valid determination or appointment is predicated on satisfying such statutory provisions, such contracts is said to enjoy statutory protection. Going by the claimant's position that her employment is that with statutory flavour as same is governed by the Financial Reporting Council of Nigeria Act 2011, (hereafter called the Act). I have taken judicial notice of the Act and examined the provisions of same. Section 20 (3), (4), (5) of the Act, empowers the Board established under the Act to appoint staff for the Council; to determine their conditions of service, including appointment, promotion, discipline, remuneration, allowances, benefits and pensions. Section 21, is to the effect that the service in the council shall be approved service for the purposes of the Pension Reform Act, that employees of the council shall be entitled to pensions, gratuities and other retirement benefits as prescribed under the Pension Act. While Section 22 empowers the Board to make staff regulations relating generally to the conditions of service of the staff, and that such regulation is to provide for appointment, promotion, disciplinary control and dismissal of an employee of the council. Before the Court are 3 important documents, the consideration of which is germane to the earlier posed question. First is the claimant's offer of employment letter dated 28th February, 2006, which specified certain terms and conditions of claimant's employment, secondly, is exhibit PA18, i.e. the Finance and general purpose committees Report, a committee directed by the Board to investigate the petition written by the claimant, which relied heavily on the civil service rules in making its recommendations to the Board and third is the Public Service Rules, i.e. exhibit PA3( hereafter called PSR).It is pertinent to note that the Act empowers the Board to make regulations as regards the conditions of service of employees of the Council, their promotion, discipline and dismissal as stated supra. It is however, not clear on record if the Board did infact make any regulations in that regard. What is apparent on record, is that the Board directed the Finance and general purpose committee to investigate claimant's allegations against the 2nd defendant, who is the Executive Secretary of the 1st defendant and the Committee relied on the PSR to determine claimant's plight. The law is trite that where an enactment confers a power or impose a duty, the power may be exercised and the duty shall be performed from time to time as occasion demands. It is also a common position of the law that where an enactment confers power to appoint a person, that power includes the power to remove or suspend and power to make subsidiary legislation or regulation includes power exercisable in the like manner. See Sections 10, 11 and 12 of the Interpretation Act, CAP.123 LFN 2007. The import of the provisions of the Interpretation Act vis a vis the provision of Sections 20 (3), (4) (5), 22(a) and (b) of the Act, which specifically allows the Board to place reliance on any instrument relating to conditions of Service in the Public service of the Federal Government on the issue of promotion or discipline of its staff, hence the reliance of the committee on the PSR by the 1st defendant in its proceeding between the claimant and the 2nd defendant. Thereby recommending the sack of the claimant and same approved by the Board also relying heavily on the PSR. The Act did infact provides that the 1st defendant could rely on the PSR, in the absence of any regulation. It is obvious from the community reading of the above cited Sections of the Act and the action of the 1st defendant that the 1st defendant's service is one regulated by Statute, i.e. the Act. Thus it placed reliance on the provisions of the PSR. In OLORUNTOBA-OJU V ABDUL RAHEEM [2009] ALL FWLR (PT. 497) 1 @ 42. The apex Court held thus-
''... I must express that where terms and conditions of a contract employment or service are specifically provided for by statute or regulations made there under, it is said to be a contract protected by statute or, in other words, an employment with statutory flavour.''
Also, by E.C.W.A v. Dele (2004) 10 FWLR (Pt. 230) 297; the Court held that where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination of appointment. To hold that it is the one applicable at the time of appointment will mean that if the amended one introduces benefits such as improved conditions of service, which ought to be the case, the employee who was employed before it comes into effect not take the benefit of the same.
It is in the light of all stated above and the case law authorities cited supra on this issue that, I therefore disagree with the learned defence counsel's argument that claimant's employment is that of master servant. To hold as argued by the defence will occasion injustice to the claimant. The failure of the Board to make regulation as provided by the Act, should not be held against the claimant for no fault of hers and also bearing in mind that the 1st defendant did infact placed heavy reliance on the PSR in its disciplinary action against the claimant as evinced by exhibits JS4 and JS6 respectively. It specifically stated at page 2 of exhibit JS6, thus
''1. That since the Financial Reporting Council of Nigeria is an agency of the Federal government, that the Board would restrict itself to the enabling laws and regulations, relating to the Council and staffing including the Civil Service Rules as applied by the Committee''
The express action of the 1st defendant in relying on the PSR, is a clear indication that the 1st defendant's staff employment is regulated by statutes. They applied it and subjected the claimant to its provisions. They are not allowed at this stage to resile from it. It is also in consequence of this, that I find that the claimant's employment is one with statutory flavour. I so find and hold.
Having held supra that claimant's employment is that of a statutory employment, the next germane question to answer is whether or not the procedure for terminating her employment was in compliance with the PSR? By Section 22 (a) and (b) of the Act, the Board of the 1st defendant is empowered to make regulations relating to the conditions of service of the 1st defendant staff for their appointment, promotion, dismissal and any disciplinary control, and until any such regulations are made, any instrument relating to conditions of service in the Public Service of the Federal Government shall be applicable, with such modifications as may be applicable with and necessary to the employees of the Council. See Section 22(b) of the Act. The Extract of the Board's meeting of the 1st defendant dated the 12th September, 2013, according to the minute, the Board decided to restrict itself to the enabling Act and regulations relating to the Council and its staff, including the PSR as stated supra. That being the case, and in the absence of a regulation, what is then the provisions of the PSR as it relates to staff discipline, dismissal or termination of employment?, and was the provisions followed by the 1st defendant in terminating claimant's employment? It is plain on exhibit PA18 and JS4, specifically at page 4, that the claimant was referred to Rules 030301, 030401, and 0302427 of PSR. It is the submission of the defence counsel that the 1st defendant gave the claimant fair hearing as provided in the Civil Service Rules. While the learned claimant's counsel on his part contends that the 1st defendant failed to adhere to the provisions of the PSR, specifically cited Rule 030307, which provides that an officer proposed to be dismissed/terminate shall be notified in writing of the grounds for which it proposed to discipline him and this is to be specified in the query issued to the concerned staff. To him, the 1st defendant's action fell short of the procedure required for the determination of the claimant's employment. The law is trite that he who has the power to appoint has the corresponding power to dismiss/sack as stated earlier in this judgment. See Section 11 of the Interpretation Act, supra. However, where a procedure is laid down to be followed for doing so, appointment of the claimant cannot be terminated other than in the way and manner prescribed by the Act and her condition of service as contained there from, or that which is obtainable in the Public Service and any other manner of termination inconsistent with the statute or her condition of service is null and void. See OSUAH V EDO BROADCASTING SERVICE [2005] ALL FWLR (PT. 253) 773 @ 787. It is without paradventure that the 1st and 2nd defendants' pleading coupled with documents on record evince that it followed the PSR in terminating claimant's employment. That being the case, did the 1st defendant follow the procedure under the Rules in terminating claimant's employment?. The PSR by its Rule 030307, provides that the officer concerned is to be notified in writing of grounds on which it is proposed to discipline him/her. The letter notifying the officer in writing of the grounds should accuse the officer of specific or particular misconduct. It is not enough to invite him to a committee sitting. In AIYETAN V. NIIGERIAN INST. FOR OIL PALM RESEARCH(1987)3NWLR(PT. 59)48.SC, where the appellant in that case was merely invited to testify on what he knew about the loss of the employer's N12,000.00 which was reserved for the payment of salaries. He testified and was dismissed. The court held that his dismissal was wrongful, in that, he was not given formal notice of the charge for stealing and a hearing on that accusation. It is also noteworthy as provided under PSR 030307, that the officer should be given access to all documents relevant to allegations against him and equally be given opportunity to cross examine any witness invited by the committee.
The 1st defendant, being a creation of statute, the rights, fortunes and protection of its workers including the claimant is guaranteed under the Act and subsidiary legislation pursuant to same, which in this case is the PSR, thus the power to terminate the claimant or any staff of the 1st defendant go beyond the whims and caprices of the 1st or 2nd defendants, but strictly by the procedure laid down in the statute and PSR as stated supra. See UNIVERSITY OF ILORIN V ABE [2003] FWLR(PT. 164) 267 @ 278.What transpired in this case was that the claimant wrote to the Board narrating the incident that culminated in her transfer by the 2nd defendant to Kaduna, copied the chairman and the Permanent Secretary Ministry of Trade and Commerce, i.e. the Supervising Ministry, a letter titled ''plea for reconsideration of my transfer'' in the letter she also alleged that the 2nd defendant sexually harassed her severally but according to her she rebuffed his acts, culminating in her transfer to Kaduna to work under her subordinate, i.e. a level 8 officer, whilst she was a level 12 officer. This she reasonably believe was as a result of her refusal to accept the 2nd defendant's sexual advances and intimidation. Neither the Permanent Secretary nor the Chairman of the Council responded to her plea, until a similar petition was seen on website of Gongnews posted by CW2's NGO. The claimant was then invited by the 1st defendant to a meeting vide a letter dated 26th August, 2013, i.e. exhibit PA12, refusing her request for leave and inviting her for a meeting at Corporate Affairs Commission, Abuja, without stating the reasons for such an invitation or allegations against her or simply put what she is expected to do at the meeting. The membership of the committee consist of her immediate boss, and the Board when considering the Committee's report invited DW1 to state what she knew about the claimant's allegations of sexual harassment against the 2nd defendant who is her boss, without given the claimant an opportunity to cross examine her before it made its conclusions. The report of this meeting is exhibit PA18, i.e. the report of the Finance and General Purpose Committee of the 1st defendant and the Board minute extract, i.e. exhibit JS6. Does this satisfy the requirement of Rule 030307? The answer is in the negative, given that the 1st defendant never issued a query against the claimant; the letter of invitation cannot suffice as a query, it does not contain the precise offence/allegation, the rule/regulations she has broken and the likely penalty for same. Rather what the 1st defendant did was to confront the claimant with Rules 030301,030401 and 0302427 at the committee; which defines misconduct after she was asked at the meeting to state her case. This is a case of the proverbial medicine after death. PSR 030307 makes provision for the step by step procedure for disciplining a Public Officer under the PSR. First is that the officer must be given a query, the circumstances of the offence, he should be given access to any document he may require. He would be allowed to make his own representation, if necessary a 3 man panel of inquiry may be set up, paragraph (v) specified that the members of inquiry shall be selected with due regard to the status of the officer involved in the disciplinary case. The officer is entitled to call witnesses and also to cross examine witnesses produced. It is on record that the claimant was informed by the 1st and 2nd defendants of the panel of investigation and was asked to give them all necessary cooperation, there is no proof of issuance of a query to her by the 2nd defendant/or any officer of the 1st defendant or the Federal civil Service.
The 7 man panel constituted fell short of the provision of PSR 030307. The composition of the panel of inquiry must be such as to assure its impartiality and fairness. Which is represented in the Latin maxim, nemo judex incausa sua and audi alteram partem. Members were according to claimant staff she had at one time or the other complained about the attitude of the 2nd defendant towards her. The apex Court in FALOMO V LAGOS STATE PUBLIC SERVICE [1977]5S.C.P51@ 75-76; pronouncing on similar provision as the one under consideration, held that the affected officer like the claimant in this case will be at liberty to call witnesses, examine documents which were placed at the disposal of the panel and cross examine witnesses, if any, who testified and may still testify against him. The composition of the panel left much to be desired, the claimant immediate boss was not represented on the committee when the 2nd defendant testified. Claimant was not given ample opportunity by the committee to examine documents used against her or to cross examine the 2nd defendant and DW1 who was invited later to state what she knew about the allegations against the claimant and the 2nd defendant.DW1 confirmed in her testimony that the claimant was never issued a query and the defendants did not canvass any evidence in prove of this.The 1st defendant became the accuser and the Judge. The 1st defendant's panel who investigated the issue before the court, whilst placing reliance on PSR 030301, 030401, and 0302427, failed to be ''a Potia man'' as postulated by Lord Denning, MR. in his book ''The Discipline of Law'' LexisNexis, Butterworth, page 30 and 31, where he drew lessons from Shakespeare's 'Merchant of Venice'. The story is about a bond holder, i.e. Shylock giving him the power to enforce the decree and penalty without mercy. Shylock said: 'I crave the penalty and forfeit of my bond' The law of Venice support his crave for strict application of the penalty and forfeiture and nothing of equity. Hence Shylock hailed the Judge by saying- '' A Daniel come to Judgment: yea a Daniel!- O wise young judge, how do I honour thee! Denning went on to state that in construing law, same should be done as justice and equity requires. As Portia told Shylock-
Tarry a little; - there is something else.
This bond doth give thee here no jot of blood:
The words expressly are a pound of flesh.
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy hands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.
In applying the above scene in Shakespeare's book 'Merchants of Venice', to the instance case, the committee who relied on the provision of the PSR, ought to have complied strictly with the procedure like Portia said in accordance with the PSR, the position they took in the handling of the proceeding. They leaned backwards in favour of the 2nd defendant, rather than giving the claimant the required opportunity to answer to all its questions and cross examine the 2nd defendant and Mrs Shibigem DW1, as required by PSR 030307 is fatal to their case.
The pronouncement of Karibi Whyte JSC, in F.C.S.C. V. LAOYE [1989] 2 NWLR (Pt.106) 652 at 699, where he held thus:
"The Ministry of External Affairs was both the accuser and investigator of the allegations against the Respondent. It is on the Ministry's Report that the Federal Civil Service Commission acted. The entire disciplinary action was initiated, investigated and determined by the Ministry of External Affairs which appeared to have been a judge in its own causes. Such a situation is intolerable in our concept of justice and clearly is a breach of the rules of natural justice"
Similarly, Obaseki J.S.C(Retired) while referring to the dictum of Lord Denning in KANDA V GOVERNMENT OF MALAYA [1962] AC 322, stated thus:
“If the right to be heard is to be real right which is worth anything, it must carry with it a right of the accused man to know the case which is made against him. He must know what evidence has been given and what statement had been made affecting him, and then must be given an opportunity to correct or contradict them. This appears in all the cases from the celebrated judgments of Lord Loreburn, L.G in The Board of Education v Rice down to the decision of their Lordships' Board in Ceylon University v Fernando. It follows therefore that the judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other. The Court will not inquire whether the evidence did work his prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing"
The decision of the two great jurists in the above cited cases are instructive and persuasive. The provision of the Rule 030307 is a mandatory requirement as failure to comply with same is tantamount to not granting fair hearing to the claimant. The 1st defendant did not only fail to comply with the procedure specified by the PSR which they relied on for the discipline and removal of the claimant, they also breached her right to fair hearing by denying her the opportunity of confronting the 2nd defendant who accused her of incompetence and lackadaisical attitude to work in person before the investigating committee, ditto the evidence of Mrs Juliana Shibigem. In other words, the 2nd defendant gave evidence to the committee behind her. The Finance and General Purpose Committee which investigated the issue ought to have observed the principles of natural justice by giving the claimant a fair hearing before proceeding to recommend disciplinary measures against her. It is quite interesting to note that the 2nd defendant admitted to sending love text messages to the claimant but according to him ''nothing was intended.''. Also of note is that the committee found his transfer to Kaduna to report to a grade level 8/10 officer administratively wrong and not supported by any PSR; also that the 2nd defendant should avoid visiting his female staff late at night and that the Board is to arrange leadership training for him to improve his interpersonal relationship. Yet the punishment meted out against the claimant vis a vis the recommendations and conclusions of the committee evince that the committee was bias against the claimant. See the erudite position of Oputa JSC (of blessed memory) in GARBA & OTHERS V UNIVERSITY OF MAIDUGURI [1986] ALL N.L.R., where he held thus:
"In such circumstances again that Board, since it is now performing a quasi judicial function, should, like Caesar's wife, be above any suspicion of bias, and do away with anything and everything which might engender suspicion and distrust of the Board and so promote a feeling of reasonable confidence in those to be affected by its finding”.
The attitude of the Committee and the Board of the 1st defendant fell short of the above requirement.
Furthermore, the 2nd defendant in his defence to sending the claimant suggestive text messages in 2011 at the committee, stated that his phones have been stolen. Claimant according to DW2, read out some text messages sent to her by the 2nd defendant to the committee and he was asked to read to the hearing of the Committee, and he did, but did not call for the MTN call log as requested by the claimant. An indepth scrutiny of 2nd defendants admission is suggestive of the fact that 2nd defendant verbally harassed the claimant sexually because I do not see the reasons why a man, a boss so to say would visit his PA a female late at night in her hotel room. What would the discussion be about at night? His admission of making jokes with his PA, the claimant that he would marry her is way out of the employment relationship between a boss and a subordinate and to me all the attitude of 2nd defendant coupled with his unwelcome altercations is a clear case of sexual harassment. It is evident that the claimant’s failure to accede to his sexual overtures, resulted in the transfer of the claimant by the 2nd defendant to Kaduna, directing her to report to a junior staff and thus created a hostile environment at work place for her. The 2nd defendant’s reply in PA18 with regards to the reasons he transferred the claimant is as follows;
“That during the Council of Commerce and industry meeting where he frowned at the way she was handling her calls. She did not arrange to pick him at Abuja airport which made him to miss a scheduled meeting. That she refused to send a reply to the council of stock exchange to the effect that he would be unable to deliver a paper personally but would send a representative to do same. That she failed to remind him about the wedding of the son of the former Chairman of council.”
By Rules 030302 of the Federal Government Public Services that;
“As soon as a superior officer becomes dissatisfied with the behavior of any officer subordinate to him/her, it shall be his/her duty to inform the officer in writing giving details of unsatisfactory behavior and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary actions. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether;
(a) the officer has exculpated himself/herself, in which case, he/she shall be so informed in writing and no further action shall be necessary, or
(b) the officer has not exculpated himself/herself but it is considered that he/she should not be punished in which case, the appropriate formal letter of advice shall be issued to him/her and he/she shall be required to acknowledge its receipt in writing, or
(c) the officer has not exculpated himself/herself and deserves some punishment, in which case, Rule 030304 shall apply''.
The 2nd defendant did not follow the above procedure, rather he decided to intimidate the claimant by transferring her and unreasonably made her believe that she would lose her job if she failed to proceed on the discriminatory transfer to Kaduna, subjecting her to self ridicule and indignity. It is the law by RAJI V. UNILORIN [2007] 15 NWLR (PT.1057)259 SC, the apex Court held in that case that where the terms of employment are governed by laws, rules and regulations as in this case, having statutory flavour, the employee's employment cannot be terminated except in accordance with such rules and regulations.
It is thus clear from all stated supra, that the procedure for terminating claimant's employment from the 1st defendant fell short of the requirement of the PSR, the regulation under which she was tried and sacked. I find that the Committee was bias against the claimant, thereby breaching her fundamental right to fair hearing, it did not follow the laid down procedure and thus the termination of the claimant's employment by the 1st defendant is unlawful, null, void and of no effect as it is contrary to the provisions of the PSR. Consequent upon which the Report of the Finance and General Purpose Committee and the Board's ratification of same is set aside.
As regards issue two which is, whether or not the claimant was sexually harassed by the 2nd defendant. It is the claimant’s contention that sometime in 2010 she was posted to the Executive Office directly presided over by the 2nd Defendant. That while working with the 2nd defendant she was at various times subjected to incessant seductive, infidel and sensuous compliments and gestures, also the 2nd defendant keeps her beyond the official working hours sometimes as late as 10pm. The defendants denying this assertion in their joint pleading stated that the 2nd defendant had worked in different capacities for the 1stDefendant and the Government of Nigeria, for many years without blemish or allegation of any act of indiscipline, harassment of any sort none the least "sexual" whatsoever. That the allegation of the claimant against him is to tarnish his good name. It is germane to state here that the 2nd defendant neither filed any separate defence against claimant's pleadings nor filed any written statement on oath to controvert the allegation. He did not of course appear in Court to traverse the claimant's allegation of sexual harassment against him.
Now, Section 254C(1)(f), (g), (h) and (2) of the 1999 Constitution as amended empowers this Court to adjudicate on cases relating to international best practice, discrimination or sexual harassment at work place and the application and interpretation of international Labour Standards and, Convention and Treaties or protocols ratified by Nigeria. In effect this Court is the only Court in this clime empowered by the 1999 Constitution as amended to apply and or interpret international treaties, standard, Conventions and protocols ratified by Nigeria. The provisions are highlighted for ease of reference as follows-
''254C - (1) Notwithstanding the provisions of sections 251 - 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
The effect of Section 254C(f), (g), (h) and (2) captured supra, is that this Court or an applicant can seek relief/refuge under any treaty or Conventions, Protocols ratified by Nigeria whether or not it is domesticated. I am thus clothed by the above provisions of the Constitution as amended to interpret or apply international Conventions or treaties and best practices as it relates to the subject under consideration. It is important to state that Nigeria has ratified CEDAW, i.e. Convention on Elimination of all Forms of discrimination against Women, ILO Convention No 111, Convention on Elimination of all Forms of discrimination at the work place, the provisions are meant to respect, protect, prevent and promote women's right. African Charter on human and Peoples' right, UN Charter on Human Right, which is the foundation of all rights and Protocol to the African Charter on Women's Rights is in most context similar to CEDAW are all geared towards the observance of the right of women and protection. Having said that, it is now pertinent to consider the meaning of the word 'sexual harassment' as there is no provision in our labour law defining it. It is also correct to state that sexual harassment is not defined/codified by our criminal code as an offence, thus contrary to the position of the learned defence counsel that it is a criminal offence requiring investigation by the Police and proof required likened to that of strictly prove beyond all reasonable doubt is unfounded and thus discountenanced. It is in the light of dearth of case law authorities and law defining same under our laws, that I took the liberty of examining the meaning of the word 'sexual harassment'' in international instruments ratified by Nigeria. I also considered the attitude of Courts to sexual harassment in other climes. This will enable the Court to make a finding as to whether or not claimant's allegations could be termed sexual harassment.
My first point of call, is the Black's Law Dictionary,9th Edition at page 1499, where sexual harassment is defined as;
“a type of employment discrimination consisting in verbal or physical abuse of a sexual nature”
The ILO defines sexual harassment as a sex-based behaviour that is unsolicited and offensive to its recipient. It is also said to be an overly over bearing attitude of a gender over the other gender for a hidden or obscene agenda. The ILO's committee on Equality in employment and occupation; Special survey on equality in employment and occupation in respect of ILO convention No 111, 1996 defines sexual harassment as;
“Any insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation etc, a condescending or paternalistic attitude with sexual implications undermining dignity any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats any lascivious look or other gesture associated with sexuality and unnecessary physical contact such as touching, caresses, pinching or assault.”
Whilst a Committee set up under CEDAW i.e. the Committee on the Elimination of Discrimination against Women constituted by the United Nations in its General Recommendation No.19 (specifically in January, 1992, titled violence against women said that 'Sexual harassment' is a form of gender based violence. The recommendation defined sexual harassment' to include-
''such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conducts can be humiliating and constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment''.
It is obvious from these definitions that any act of unwelcome/unsolicited sexually coloured remarks, or invitation or request by words actions. Insinuations or comments on a person's physique with sexual implications is sexual harassment. Where the woman has reasonable grounds to believe that her objection would be a disadvantage to her in connection with her employment, is also sexual harassment. The claimant in this case alleged that the 2nd defendant had at several times repeatedly subjected her to seductive, infidel, and sensuous compliments, obscene talks and gestures, sensual joke, threat and intimidation. That he would at times kneel down to beg her for sex, professing that he had always loved her and her love is eating him up. In his bid to achieve these promiscuous feat, the 2nd defendant directed that the claimant be redeployed to his office as his personal Secretary, profiled her to travel with her on official duties to different part of the Country.Ensure that they stay in the same hotel and his incessant calls to her late at night. According to the claimant the 2nd defendant even proposed to marry her and take her to America, if she agrees to divorce her husband, because he is very much ready to divorce his own wife as he never loved her. Claimant further told the Court that the 2nd defendant even urged her not to call him ''boss' but to call him by his first name ''Jim''. According to the claimant, her refusal to yield to the 2nd defendant, her boss repeated demand for sex resulted in the use of words of threat like, ''when am done with you, you will hang yourself'' and the eventual obnoxious transfer made by the 2nd defendant, transferring her to Kaduna to work under her subordinate, level 8/10 officer. In view of the scarcity of case law authorities on the subject in this clime except the MADUKA's case supra. I tried to consider the position of Courts in other jurisdiction to enable me arrive at a just decision as stated earlier in this judgment.
First, the Indian apex Court for the first time relying on the above recommendation of the United Nations under CEDAW, defined Sexual harassment in the case of VISHAKA V. STATE OF RAJASTHAN ( 1997) . The court held that it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruitment or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
The Canadian court in JANSEN V. PLATY ENTERPRISES LTD(1989)1SCR,1252; Dickson CJ, of the Supreme court of Canada, held amongst others that ..'' I am of the view that sexual harassment at the work place may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job related consequences for the victims of the harassment, ..'' it is an abuse of power , an abuse of both economic and social and sexual power. Sexual harassment is a demeaning practice, one that constitute a profound affront to the dignity of the employees forced to endure it. He went on to state that Sexual harassment in the work place attacks the dignity and self respect of the victim both as an employee and as human being.
In DUTTON V. BRITISH COLUMBIA (HUMAN RIGHTS TRIBUNAL) (2001)BCSC,1256; The Supreme Court of British Columbia refused to hold that the petitioner's conduct merely amounted to development of 'a social relationship during the course of the evening meetings'' The Court rejected the petitioner's contention that he did not cross ''the boundaries of acceptable behaviour'' and engaged in sexual harassment as there was no evidence of any ''overt sexual advances'' or sexual demands or suggestions'' or ''taunting, leering or gender based humour'' on his part. In rejecting the petitioners contention that there was no evidence that he indulged in any conduct a sexual nature, the Court invoked the test of creation of a sexualized environment by the petitioner. The Court also took note that the petitioner was a Professor, while the complainant was his student and thus in a vulnerable position. The unequal power status was considered in this case. Applying the position of the Court in this decision to the instance case, it is also apparent in this instance that there is in balance in the status of the claimant and the 2nd defendant, the 2nd defendant is at a vantage position above the claimant who in this case is a vulnerable female subordinate.
The Australian Court in SUSAN HALL, RE, DIANNE SUSAN OLIVER and KARYN REID V. A&A SHEIBAN PTY LTD,(1989)FCA 72:20 FCR 217(FC Aust); applying the test that for the unwelcome sexual conduct to constitute sexual harassment, the victim must have a reasonable grounds for believing that an adverse reaction to the conduct would occasion a disadvantage to the recipient n connection with actual or possible employment or work, or that the recipient suffered some tangible job detriment, are alternative and prove of these is not conjunctive. The import of which is that prove of either of the two situations will suffice.
Be that as it may, I have stated supra in this judgment that the 2nd defendant Mr. Jim Osanyande Obazee failed or refused to file a written statement on oath or appear in person to traverse the allegation of sexual harassment leveled against him by the claimant, rather he relied on the testimony of DW1 and DW2 respectively, who testified on behalf of both the 1st and the 2nd defendants. It is however, obvious from the evidence before the court that none of the defence put up by the two defence witnesses was able to defend/controvert the allegation of sexual harassment against the 2nd defendant, the allegation which is personal against him and he is required in law to personally and specifically defend same. What both defence witnesses stated in Court are if anything at all, repetition of what the 2nd defendant stated at the Finance and General purpose committee, the proceeding of which has been set aside by this Court in this judgment. DW1, Mrs Shibigem, stated under oath that she is not in a position to tell the Court that the 2nd defendant never made sexual overtures to the claimant. She confirmed that she was aware that the 2nd defendant keeps the claimant in the office uptill 10p.m, instead of the 5pm being the official closing hour of the 1st defendant. She admitted that it is not proper in the rules of service for a Senior officer to report to a grade level 8 officer, a junior officer and that she was only called upon in her official capacity to come and sign the witness statement on oath. It is plain from the testimony of DW1 on record that she was in Court to give evidence for the 1st defendant as its staff and not for the 2nd defendant who is equally an officer of the 1st defendant. DW2 equally agreed under cross examination that the issues bordering on the 2nd defendant's sexual inclination and overtures towards the claimant is personal to him and that he would never discuss such issues with him. He admitted that his office is on the 4th floor, while the 2nd defendant's office is on the 3rd floor and thus he would not hear him talk while in his office. While he told the Court that the claimant's office is very close to that of the 2nd defendant and would not know what transpires between the duo. DW2 stated that the claimant is supposed to close at 5pm, and aware that the 2nd defendant keeps the claimant in the office uptill 10p.m.It is apparent that the testimonies of both DW1 and DW2 did not help the 2nd defendant's case, given that they did not in any way controvert or challenge the allegation of sexual harassment leveled against the 2nd defendant. 2nd defendant admitted at the committee that he sent text messages to the claimant. He could not also deny visiting the claimant late in the night in her hotel room. It is in consequence that I find and hold that the 2nd defendant did not controvert or challenge the evidence of the claimant bordering on sexual harassment against him. It is obvious that the 2nd defendant, Mr. Obazee has no defence to the allegation of sexual harassment leveled against him by the claimant, hence he refused or chose not to specifically challenge it, but chose to rather file a joint statement of defence, thus hiding under the cloak of the 1st defendant, his employer. He did not also specifically deny the allegation of sexual harassment levied against him by the claimant, except the general traverse made in the joint Statement of defence filed by both the 1st and 2nd defendants.
The law is that each party must traverse specifically each allegation of fact which he does not intend to admit. The party pleading must make it clear how much of his opponent's case he disputes. The law is notorious that a traverse must not be evasive, but must answer the point of substance. The basic rule of pleading is that a traverse whether by denial or refusal to admit, must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent: he must either admit it frankly or deny it boldly. Any half-admission or half-denial is evasive." PER OGUNDARE, J.S.C. (P.16, paras.G-B) in MERIDIEN TRADE CORPORATION LIMITED V. METAL CONSTRUCTION (W.A.) LIMITED. (1998) 3 S.C 20. It is also the law that the fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but where a party refuses to take advantage of the opportunity to traverse specific allegations made against him, the averments will be deemed admitted and the defendant cannot complain of lack of fair hearing.
It is from all stated above that I find that the 2nd defendant failure to testify in defence of the grievous allegationof series of sexual harassment against him is fatal to his case, it is the case of the claimant against his, claimant's evidence on record as it relates to the allegation of sexual harassment against the 2nd defendant remained cogent, unchallenged and uncontroverted and is deemed admitted by Mr. Jim Obazee as the joint pleadings alone cannot speak, the averments in the joint amended statement of defence as it relate to the allegation of sexual harassment are deemed abandoned, while paragraphs 13 to 31 of the claimant's amended statement of facts are deemed admitted by the 2nd defendant. The import of this is that the 2nd defendant did not put up any defence to the allegation of sexual harassment against him. It is in the light of this that I find and hold that the 2nd defendant, Mr. Jim Osanyande Obazee, sexually harassed the claimant by his unwelcome utterances /conduct of a sexual nature which detrimentally affected the work environment, it also gave the claimant reasonable grounds and fear for believing that an adverse reaction to his conduct would occasion a disadvantage to her in connection with her employment or work, and she suffered some tangible job detriment leading to the oppressive transfer of the claimant to Kaduna to take orders from her subordinate, thus adversely affected her dignity and self worth. It is indeed an abuse of power, an affront to the dignity of the claimant who was forced to endure it as enunciated by Dickson CJ in JANSEN's case supra. The termination of the claimant's employment, simply because she refused to succumb to sexual harassment from 2nd defendant constitute a violation of her human dignity and freedom from discrimination as protected by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, ditto against the claimant's fundamental human right under the 1999 Constitution as amended. I so find and hold.
The defendant submitted that claimant is not entitled to her claims as she has already been paid her entitlement. The defendant in prove tendered exhibit US1 and US3 as a computation of the claimant’s entitlement and a bank statement of account of the claimant. A careful perusal of Exhibit US3 reveals that on the 10th of October, 2013 the claimant was credited with the sum of N400, 818.04. This payment constitutes claimant's October salary payment of her local travel allowance. This cannot constitute claimant's terminal benefit or gratuity. The claimant’s salary in lieu of notice though wrongly paid by the defendant, cannot either be her terminal benefit. Claimant by a letter dated 4th November, 2013 written by her Solicitors rejected her termination and demanded that she be reinstated and informed the defendants of her intention to seek legal redress at the National Industrial Court. The defendants rebuffed her demands, hence she instituted this suit on the 24th of December, 2013. Would it then be right to hold that the termination of the claimant's employment in the circumstances was mutual? The answer is in the negative, this is so in view of steps she took in protesting his termination, and the fact that what was paid into her account was actually not her terminal benefits, but her salaries and reimbursement for local travels she made. It is on this basis that I find that the claimant is not estopped from complaining about the manner of termination of her employment by the defendants. I so find and hold.
It is claimant’s claim that she should be reinstated back to her employment and all entitlement and promotion be given to her. It is the law that in an employment with statutory flavour as in this case, where the Court finds that termination of an employee is unlawful, i.e. not in accordance with the procedure laid down in the statute, the Court may make an order for reinstatement of the employee. See P.T.I. V. NESIMONE (1995) 6 NWLR(PT. 402) 474 CA. Having found supra that claimant's employment was unlawfully terminated by the 1st defendant by its letter dated 27th September, 2013, the right order to make in the circumstance in view of a special and higher legal status a statutory employee enjoys over and above the ordinary master and servant relationship, is an order for claimant's reinstatement back to the 1st defendant. It is a firm position of the law as held in plethora of cases that whereas in this case, the relationship is that of statutory flavour, the Court may make orders compelling specific performance of the contract of service because in the eye of the law, the purported termination is invalid, null, void and of no effect and the claimant continues to have the right to be treated as an employee of the 1st defendant uptill date until his lawful retirement. See the recent decision of the Court of Appeal in MR. SYED QAMAR AHMED V ABU & AANOR [2016] LPELR-40261,CA. It is in the light of this that I order for the immediate reinstatement of the claimant back to his position at the 1st defendant's. However, in view of the finding of the court as regards sexual harassment of the claimant by the 2nd defendant, I hereby make a consequential order that the claimant is to be posted to any other appropriate office relevant to her field of study in the 1st defendant's office in Lagos, but not as a Personal Secretary to the 2nd defendant.
Claimant is seeking for payment of her salaries and allowances from the date of the unlawful termination of her employment till the date of judgment. Having held supra,, that claimant's employment was unlawfully determined, it goes without saying therefore, that claimant is deemed to continuously be in employment since 27th September, 2013 uptill today. It is in that regard that I find and hold that claimant is entitled to be paid his salaries and allowance from September, 2013 till date less the October salary that was paid to her. It is obvious by exhibit US1, that the claimant's net monthly salary as at September, 27th 2013, was N142,921.21. This amount multiplied by 3 years and 2 months will give a total sum of N5,431,005.98. Accordingly, claimant is to be paid the sum of N5,431,005.98 as his salaries and allowances from September 27th 2013 till today less salary October, 2013 together with all her accrued promotion if any for the 3 years period. I so find and hold.
Next is the claimant’s claim for the sum of N100,000,000 as damages specifically and personally against the 2nd Defendant for his serial acts of sexual harassment, sexual advances, seduction of the claimant with the attendant depression, trauma, psychological torture, emotional stress and his desecration of the claimant's marriage, self esteem and pride. Damages as held in plethora of cases is that which the law will presume to be direct natural or probable consequence of the act complained of or damages resulting from the loss flowing naturally from the act complained of. Claimant alleged that she had to continuously endure the 2nd defendant's overtures and unwelcomed sexual comments in order to secure her job. She equally gave evidence of how she had to stay in office at the 2nd defendant's order uptill 10pm at night thereby losing a personal relationship with her children and the incessant trips organized by the 2nd defendant did infact affected her relationship with her family. The preamble of the 1999 Constitution as amended states that the Constitution of Nigeria is based on the principles of attaining justice and welfare of all persons on the principle of freedom, equality and justice. The Universal Declaration of Human Rights 1948 also expresses an aspiration towards a world in which human beings shall enjoy freedom from fear, intimidation or undignified treatment. The family unit of our society is important for the growth and development of the country as a whole and so any action geared towards destroying the foundation of this unit is to be strictly viewed. I dare to say, that the actions of the 2nd defendant did infact threatened the foundation and welfare of the claimant's home. It is also obvious that claimant would have suffered unquantifiable mental and psychological trauma, low self worth and dignity. It is in the light of all this that I exercise my discretion in awarding personal damages against the 2nd defendant in the sum of N5,000,000, though the damages done against the dignity of the claimant cannot be monetarily quantifiable/compensated. This is to be paid within 2 weeks of this judgment by the 2nd defendant, Mr. Jim Osayande Obazee to the claimant.
The attitude, the response and decision of the 1st defendant, as it relates to the claimant's complaint about the sexual harassment by the 2nd defendant, I must say leaves a sour taste in the mouth. I say so in view of the fact that the 1st defendant, did actually realized that the 2nd defendant's actions were unbecoming of an officer of his status, they even recommended a leadership training for him and advised him to watch his relationship with his female staff; they equally advised him to desist from visiting his female staff at night, but failed to reprimand the 2nd defendant. I would have awarded damages against the 1st defendant but could not do so, in view of the fact that the claimant did not ask for it. Given the position of the law which is to the effect that Courts are not father Christmas that dishes out gifts without asking for it. Consequently, I resolve this claim in favour of the claimant and order that the 2nd defendant pay the claimant the sum of N5,000,000.00 within two weeks of this judgment. The 1st defendant is directed as a consequential order to as a matter of urgency make regulations as prescribed by the Act.
On the whole I find and hold that claimant’s claims succeed and for the avoidance of doubt I declare and order as follows:
1. That claimant’s employment is guaranteed by the Financial Reporting Council Act, 2011 and by the Public Service Rules, thus a statutory employment and not master/servant.
2. That the termination of claimant’s employment was unlawful.
3. That the Finance and General Purpose Committee's Report of the1st defendant and ratification of same by the Board are hereby set aside.
4. That the termination of claimant's employment vide a letter dated 27th September, 2013 without following due process is null, void and of no effect.
5. That the claimant is to be reinstated to her position in the 1st defendant office in Lagos, but NOT as the Personal Secretary of the 2nd defendant.
6. That the 1st defendant is to pay claimant's salaries and allowances from September, 2013 till date less the October, salary which is the sum of N5,431,005.98 within 30days of this judgment failing which is to attract the interest of 15% per annum.
7. I award the sum of N5,000,000.00 against the 2nd defendant for sexually harassing the claimant, discrimination against her, inhuman and executive recklessness of the 2nd defendant, thereby creating a hostile working environment for the claimant and for the violation of her human dignity and self worth/respect.
8. Cost is accessed at N250,000.00 against the 1st and 2nd defendants jointly and severally.
Judgment is entered accordingly.
HON. JUSTICE OYEWUMI OYEBIOLA O.
JUDGE
