HUSSAYN IDRIS UMAR -Vs- FEDERAL POLYTECHNIC KADUNA - National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON THURSDAY 14^TH DAY OF OCTOBER, 2021

BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/KD/08/2019

BETWEEN:

HUSSAYN IDRIS UMAR…………………………….…… CLAIMANT

AND

FEDERAL POLYTECHNIC KADUNA ………………………. DEFENDANT

J U D G E M E N T

As a starting point, this judgement scheduled for 06/10/2021 is further adjourned till today because the Court was indisposed.

The Claimant, at all times material to this suit, was a Chief Lecturer in the Defendant’s College of Administrative Studies and Social Sciences.

The case of the Claimant, briefly stated is that an allegation of sexual harassment of a female student was levelled against him by the Defendant. His contention is that he has been discharged and acquitted of the offence by a Chief Magistrate Court and further contends that the purported disciplinary process against him by the Defendant which culminated into the termination of his appointment was not in compliance with the fair hearing principles.

The case of the Claimant is further that, his appointment is statutorily protected and that the Defendant lacks the vires to terminate his appointment on the ground of services no longer required.

2. It is on the basis of the foregoing narration that the Claimant instituted the instant action vide Complaint and Statement of Facts filed in this Court on 12/02/2019, and by Amended Complaint and Statement of Facts, filed on 01/12/2020, pursuant to order of this Court made on 08/12/2020, he claimed against the Defendant, the reliefs set out as follows:

1. A Declaration that the purported termination of the Claimant’s appointment by the Defendant vide a letter of termination dated 12th December, 2018 on the ground of services no longer required is illegal, null and void ab initio in that same is not in compliance with the provisions of the Public Service Rules.

2. A Declaration that the Claimant having been discharged and acquitted on the offence of sexual harassment and intimidation by a Court of competent criminal jurisdiction and which offence forms the basis of the entire disciplinary process set in motion against the Claimant by the Defendant, the Defendant cannot purport to terminate the Claimant based on the disciplinary procedure set in motion against him by the Defendant.

3. A Declaration that the Claimant’s appointment with the Defendant has statutory flavour and same cannot be determined save in the manner provided for by the Public Service Rules.

4. In the premise of the foregoing, an Order setting aside the purported termination of the Claimant’s appointment vide a letter dated 12th December, 2018.

5. An Order reinstating the Claimant back to his employment/appointment with the Defendant until he voluntarily retires therefrom or attains the mandatory retirement age.

6. An Order directing the Defendant to forthwith pay to the Claimant all arrears of salaries, allowances, promotion etc that would otherwise have accrued in his favour but (sic) his purported suspension and termination of appointment.

3. The Defendant denied the Claimant’s claim and joined issues with him thereupon, by filing her Statement of Defence on 27/02/2019. The Defendant contended that it set up its machinery to investigate a complaint of sexual harassment from a student, one Faith Patrick, against the Claimant and that the disciplinary process was in accordance with the Defendant’s extant laws/regulations.

The Defendant went on to further contend that, contrary to the Claimant’s claim, his appointment was terminated on grounds of scandalous conduct/misconduct and dishonesty and maintained that the Claimant is not entitled to any of his claims.

The Defendant contends that it expended the sum of One Million Naira (N1,000,000.00) as solicitor’s fee for prosecuting this suit.

4. Whereof, the Defendant Counter-Claims against the Claimant as follows:

i. A Declaration that the Claimant’s appointment with the Defendant has been validly terminated in accordance with the Defendant’s extant laws and regulations.

ii. N1,000,000.00 (One Million Naira) being solicitor’s fees for prosecuting this suit.

iii. Cost of this suit.

The Claimant did not file a Defence to the Counter-Claim and a Reply to the Statement of Defence.

5. Both parties adduced evidence to support their claim and defence/counter-claim respectively. In proof of his case, the Claimant testified in person and called no other witness (es). He adopted his Statements on Oath and tendered eight (8) documents in evidence. The Claimant was duly cross-examined by the Defendant’s learned counsel.

For the Defendant, the Registrar, one Dr. Muhammad Sani Musa, testified as her sole witness. He adopted his Statement on Oath and further tendered six (6) documents in evidence as exhibits. He was equally subjected to cross-examination by the Claimant’s learned counsel.

6. Upon conclusion of plenary trial, parties filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.

The Defendant’s learned counsel, A. Is’haq, Esq., in his written address filed on 23/02/2021, identified two issues as having arisen for determination in this suit, namely:

1. Whether the Claimant is entitled to the reliefs claimed?

2. Whether the Claimant has a defence to the Defendant’s Counter-Claim?

In turn, the Claimant, through his learned counsel, Samuel Atung, Esq., filed his final address on 04/03/2019, wherein he also formulated two (2) issues as having arisen for determination in this suit, namely:

1. Whether the Claimant has established his claim before this Honourable Court based on a preponderance of evidence as to entitle him to the reliefs being sought in this suit.

2. Whether the Defendant has a recognizable and/or established Counter-Claim in this suit as to warrant this Honourable Court granting same.

The Defendant’s learned counsel further filed a Reply on Points of Law to the Claimant’s final address on 09/03/2021.

7. In the light of the reliefs claimed by the Claimant, the evidence adduced by both parties on record and the field of dispute between the parties, it is my view that the focal issues that have arisen for determination in this suit, without prejudice to the issues already formulated by learned counsel on either side, can be succinctly framed as follows:

1. Whether or not the termination of the Claimant’s appointment was unlawful?

2. Upon resolution of issue (1), whether the Claimant established his entitlements to the reliefs claimed in this suit against the Defendant?

3. Whether the Defendant is entitled to the Counter-Claim as claimed.

In proceeding to determine these issues, I state that I had carefully considered and taken due benefits of the written and oral final arguments canvassed by the respective learned counsel to support their respective claims and the defence, as the case may be; and I shall to that extent endeavor to make specific reference to their submissions as I consider needful in the course of this judgment.

RESOLUTION OF ISSUES

ISSUES ONE & TWO:

8. I should state from the outset that, after a critical examination of the totality of the evidence adduced and documents tendered by parties on both sides, the Court, in this judgement, has devoted attention only to issues considered materially in dispute between the parties in this suit and ignored matters considered not crucially relevant to the determination of the main dispute in the suit. This is in line with the position of the law that in the determination of a suit before it, a Court is duty bound to consider material evidence adduced on real issues in controversy between the parties and is entitled to ignore irrelevant evidence adduced on issues not joined by parties. See Ajao Vs Alao [1986] NWLR (Pt 45) 802; Adebanjo Vs Brown [1990] 3 NWLR (Pt 141) 661; Spasco Vs Alrine [1995] 8 NWLR (Pt 416) 667; Ajomiwe Vs Nwakanma & Ors [2019] LPELR 3219.

9. I am also not unmindful that the Claimant has sought declaratory reliefs in this suit; the implication being that the burden for him to prove the allegations leveled against the Defendant exceeds the regular burden provided in Sections 131 and 132 of the Evidence Act 2011. The settled position of the law, from time immemorial, is that even though the power to make a binding declaration of right is discretionary in nature; a Court would only grant declaratory reliefs sought in an action principally on the basis of the evidence adduced by the Claimant without recourse to the evidence called by the Defendant. The burden of proof on the Claimant in establishing a declaratory relief to the satisfaction of the Court is somewhat heavy, in the sense that such relief is not granted even on the admission of the Defendant, as the Claimant must lead credible evidence in proof of the declaration of right, he seeks from the Court. See the authorities of Dumez Nigeria Limited Vs Nwakhoba [2009] All FWLR (Pt. 461) 842; Ogolo Vs Ogolo [2006] All FWLR (Pt. 313) 1; Ndayako Vs Dantoro [2004] 13 NWLR (Pt. 889) 187; Olabanji Vs Omokewu [1992] 7 SCNJ 266.

10. From the evidence on records, parties seem to be ad idem that the Claimant was a lecturer in the employment of the Defendant until his appointment was terminated. It is also not in dispute that a complaint of sexual harassment was made by one Faith Patrick against the Claimant. The grouse of the Claimant against the Defendant is that the termination of his appointment cannot be determined except in the manner provided by his condition of appointment and the Statute.

11. The law is trite as conceded by learned counsel on contending sides, and as such the issue needs not be belabored, that when an employee complains that his employment has been unlawfully terminated, he has the onus: (a) to place before the Court the terms of the contract of employment and (b) prove in what manner the said terms were breached by the employer. See the cases of Amodu Vs Amode [1990] 5 NWLR (Pt 150) 356; Angel Spinning & Dyeing Ltd Vs Ajah [2000] 13 NWLR (Pt 685) 532; Ogumka Vs Corporate Affairs Commission [2010] LPELR 4891

To establish that there was a contract of employment, the Claimant, tendered in evidence the following documents namely: Letter of offer of appointment as Lecturer Grade III in the Department of Social Development and Corporate Studies dated 19/03/1999 as Exhibit C1 and Letter of acceptance of transfer of service from Kogi State Primary Education Board, Lokoja to the Defendant as Exhibit C2.

12. The Claimant testified further that on 17/07/2018, he received a query for an allegation of sexual harassment of a female student; that he denied the allegation in his reply of 18/07/2018; that he further received letter of invitation to appear before Senior Staff Disciplinary Committee (SSDC) for an interactive session and a letter of suspension was also served on him; that he appeared before the Committee for the interactive session and that thereafter, he received a letter of termination of his appointment dated 12/12/2018. The query, Claimant’s reply to the query, letter of invitation to appear before the Senior Staff Disciplinary Committee (SSDC), letter of suspension and letter of termination of appointment were tendered in evidence as Exhibits C3, C3A, C4, C5 and C6 respectively.

13. The Claimant alleged that the disciplinary procedure that resulted to the termination of his appointment was not in compliance with the principle of fair hearing; that the allegation of sexual harassment which the Defendant termed as scandalous conduct and dishonesty under the Public Service Rules is a criminal offence for which the Claimant has been tried, discharged and acquitted by the Kaduna State Chief Magistrate Court for the offences of sexual harassment and that the Defendant lacks the vires to terminate his appointment on the ground that his services were no longer required. The certified true copy of the record of proceedings of the Chief Magistrate’s Court, Barnawa, Kaduna State in Suit No: KMD/105X/2019 was tendered in evidence as Exhibit C7.

14. Now, paragraph 7 of Exhibit C1, the Claimant’s letter offer of appointment, makes it clear that his appointment is governed by the conditions stipulated in the Civil Service Rules and Financial Instructions as well as the Kaduna Polytechnic’s Scheme of Service and Staff Regulations as amended from time to time. It is therefore firmly established that at the material period, the Claimant’s employment with the Defendant is statutory. In other words, the Claimant’s employment was one with statutory flavour, conferring him with a legal status higher than an ordinary matter/servant relationship and could only be terminated in the way and manner prescribed by the Statute establishing the Defendant or the Regulations made under it.

15. Evidence on record, as adduced by DW1 is that based on a complaint of sexual harassment by one Miss Faith Patrick against the Claimant, he directed for the issuance of a query on the Claimant and that upon receipt of his reply denying the allegation, he further directed that a letter of suspension pending the determination of the allegation before the SSDC was served on the Claimant.

DW1 testified further that the Claimant appeared before the SSDC; that the Committee found that the Claimant’s action constituted immoral behavior/misconduct; that it recommended the termination of the Claimant’s appointment under Public Service Rule; that the recommendation of the Committee was forwarded to the Governing Council of the Defendant; that the Governing Council approved the termination of the Claimant’s appointment at its 86^th Regular Meeting and that his appointment was accordingly terminated.

16. The Defendant’s witness maintained that the Claimant’s actions amounted to scandalous conduct/misconduct and dishonesty and that the Defendant complied with disciplinary process in the Defendant’s extant laws and regulations.

It is the further case of the Defendant that the appointment of the Claimant was validly terminated. DW1 urged the Court to dismiss the Claimant’s case and grant the reliefs sought in its Counter-Claim.

In support of the defence, the witness tendered the Certified True Copies of letter of complaint of one Faith Patrick, Internal Memo on Complaint of Sexual harassment against Mal. Idris U. Umar (the Claimant) from Head, PTU to the Rector, Query, Reply of Query, Senior Staff Disciplinary Report on allegation of sexual harassment leveled against Hussayn Idris Umar and Recommendation for the termination of Hussayn Idris Umar as Exhibits D1, D2, D3, D3A, D4 and D5 respectively.

17. On the basis of the foregoing therefore, the focal controversy between the parties is clearly understood, being the procedure adopted by the Defendant in terminating the appointment of the Claimant; was the procedure adopted by the Defendant, the procedure prescribed by the Condition of Service and the PSR?

The argument of learned counsel for the Claimant is that the Defendant had alleged that the Claimant’s appointment was terminated for misconduct. Learned counsel argued further that for a behaviour to amount to misconduct by Rule 030301 of the PSR, same must have been investigated and proved; that the allegation of sexual harassment against the Claimant is a criminal offence and that the allegation ought to have been proved by a court of competent criminal jurisdiction; that the allegation against the Claimant was not established; that the Claimant had denied the allegation in his reply to the query and consequently, his purported termination of his appointment was unlawful.

Learned counsel’s further argument is that the Claimant having established that his appointment was unlawful/illegal, the onus had shifted to the Defendant to prove that in terminating the Claimant, it acted according to the prescribed procedure of the PSR. To buttress his submission, learned counsel cited the cases of N. A. U Vs Nnafor [1999] 1NWLR (Pt 585) 1; Eravwodoke Vs U.B.T.H.M.B [1993] 2 NWLR (Pt 277) 590; Samson Olarenwaju Vs Afribank Nigeria Plc; [2001] Garba Vs University of Maiduguri [1986] 1 NWLR (Pt 18) 550.

18. On his part, Defendant’s learned counsel, relying on the cases of NNPC Vs Clifco Nig Ltd [2011] 4 SCNJ 197 and UBN Plc Vs Astra Builders Ltd [2010] 2-3 SC (Pt1) 59, submitted that it has been established by the evidence adduced by parties that the Claimant was afforded fair hearing before his appointment was terminated.

Learned counsel submitted further that, it is no longer the law that an employee who commits acts of gross misconduct against his employer which disclosed criminal offences must be subjected first to trial before such employee is disciplined by the employer. In further support of his propositions, learned counsel cited the cases of Imonike Vs Unity Bank Plc [2011] 12 NWLR (Pt 1262) 624 and Eze Vs Spring Bank Plc [2011] 18 NWLR (Pt 1278) 113.

19. Now, learned counsel on contending sides had vigorously argued on the issue of the discipline of employees accused of crime by employers and the need to first resort to the courts of competent criminal jurisdiction before instigating disciplinary measures against such employee.

To appreciate the development and the position of law on this issue, an examination of recent judicial pronouncements shall be considered.

The first port of call is the case of Dr. G. O. Sofekun Vs Chief N. A. Akinyemi & 3 Ors [1980] All NLR 153. The Apex Court had held in that case that once a person is accused of a criminal offence, he must be tried in a Court of law where the complaints of his accusers can be ventilated to ensure the accused gets a fair hearing as set out in sub-sections 4 - 10 of Section 22 of the 1963 Constitution. It was their Lordships' view that if an amendment of the Public Service Commission Regulation of Western Region seeking to provide for disciplinary proceedings and dismissal of public officers for criminal offences without prior institution of criminal proceeding was not struck down as ultra vires, the judicial powers of the Courts would be wholly absorbed by various commissions or organs of the executive branch of the State Government. Hence, a long line of cases emerged including Denloye Vs MDPDC [1986] 1 All NLR 306; Garba Vs University of Maiduguri [1986] 1 NWLR (Pt 18) 550; FCSC Vs Laoye [1989] 2 NWLR (Pt 106) 652.

19. It is also trite that where an employee is sought to be removed in a contract with statutory flavour, that is, a contract of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is null and void and of no effect. See: Geidam Vs NEPA [2001] 2 NWLR (Pt 696) 45; UBN Vs Ogboh [1995] 2 NWLR (Pt 380) 647. In both cases, cited above, it was held that since the allegations were of misconduct amounting to crime, the employer had no summary right of dismissal until the employee had been found guilty by the law Court.

In contrast, the Supreme Court in Arinze Vs F.B.N. Ltd [2004] 12 NWLR (Pt 888) 663 held that in statutory employment as well as in private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bothering on criminality, and in such a case, it is not necessary nor is it required under Section 36 (1) of the 1999 Constitution that an employee must first be tried in a Court of law.

Following the case of Yusuf Vs Union Bank Ltd [1996] 6 NWLR (Pt 457) 632, [1996] 6 SCNJ 201, the prosecution of an employee before the law Court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct. In Yusuf Vs Union Bank Ltd (supra), the employer's decision to dismiss summarily without recourse to the law courts, an employee who had committed gross misconduct which bordered on criminality was upheld by the Supreme Court.

20. From the foregoing case precedents, it appears that the position of the law on this issue, would depend on the circumstances of each case.

I should note that the test of whether an allegation against a person is criminal can be deciphered in the accusation levelled against him. See Nnamdi Azikiwe University Vs Nwafor [1999] 1 NWLR (Pt 585) 116, 136 – 137.

The contention of the Claimant is that the allegation of sexual harassment which is termed a scandalous conduct and dishonesty under the Public Service Rule 030301(a)(i) and (g) is a criminal offence; that the Claimant had been arraigned before Kaduna State Chief Magistrate Court and that he has been discharged and acquitted.

21. The testimony of the Claimant is that the Defendant served a query on him on an allegation of sexual harassment of a female student. The relevant portion of Exhibit C3, the query states as follows:

“You will recall that you were involved in a sexual harassment against a female student of your department which resulted in your arrest by the Nigerian Police.

It is in view of the foregoing that I am directed to issue you with a query to explain why disciplinary action should not be taken against you for gross misconduct.” (Underlining for emphasis)

In his reply to the query, Exhibit C3A, the Claimant denied the allegation of sexual harassment and stated further that there was no need for disciplinary action against him for gross misconduct.

Under cross-examination, the further testimony of the Claimant is that:

“I know that sexual harassment is a serious offence under the Public Service Rule”.

22. In defence, DW1 testified in paragraphs 8 and 18 of his Statement on Oath as follows:

Paragraph 8:

“That the Defendant queried the Claimant to explain within 24 hours why disciplinary action should not be taken against him for gross misconduct.”

Paragraph 18:

“That in response to paragraphs 10, 11, 12, 13 and 15 of the Statement of Facts, the Claimant’s appointment was terminated on grounds of scandalous conduct/misconduct and dishonesty, the Defendant’s disciplinary process was in accordance with the Defendant’s extant laws/regulations.”

From the foregoing evidence, it is deducible that the allegation against the Claimant was without doubt on misconduct and not for sexual harassment as contended by the Claimant. And I so hold.

23. I had earlier remarked that from case law precedents, the circumstance of each case will determine the requirement or need for an employee who had been accused for misconduct involving dishonesty bordering or criminality by an employer to be tried before a Court of law before such employer can discipline the employee. The fundamental requirement however, is for him to be given fair hearing.

See Arinze Vs First Bank of Nigeria Ltd [2004] 12 NWLR (Pt. 888) 663; Registered Trustees of Fruits & Vegetable Sellers Association Mararaba-Gurku & Anor Vs Kusada [2017] LPELR 42486

24. Now, the general principles guiding the proof of a claim for termination or dismissal of employment have remained sacrosanct. For the Claimant to succeed in his claim, he must prove that the Defendant did not comply with the procedure stipulated by law for his removal.

The case of the Claimant is that his employment is governed by the conditions stipulated in the Civil Service Rules and Financial Instructions as well as the Kaduna Polytechnic’s Scheme of Service and Staff Regulations as amended from time to time as stated in paragraph 7 of Exhibit C1.

With reference to the argument by the learned Defendant’s counsel that the Claimant has not placed before the Court the terms and conditions of employment, I hold the view that the Claimant has established in paragraph 2 of Exhibit C6, his letter of appointment, that the provisions of Public Service Rules was applied in the termination of his employment. The argument of learned counsel for the Defendant is accordingly discountenanced.

25. On the allegation that the procedure stipulated by law for the terminating his appointment was not followed by the Defendant, the Claimant’s depositions at paragraphs 5, 6, 7, 8, 9, 11, 12 and 13 of his Additional Statement on Oath are relevant.

The crux of the Claimant’s case and upon which the determination of his claims turns, is whether the procedure adopted by the Defendant for terminating his appointment was not as prescribed by the Public Service Rules and whether the Defendant violated his right to fair hearing in the alleged breach of procedure. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rule of natural justice so as to render the formal compliance a travesty. See Iwuchukwu Vs Nwizu [1994] 7 NWLR (Pt 357) 379 at 412; Nigerian Gas Co Ltd Vs Dudusola [2005] 18 NWLR (957) 292; WAEC & Ors Vs Ikang [2001] LPELR 5098

26. By Exhibit C6, a case of scandalous conduct and dishonesty under Public Service Rule 030301(a) (i) and (g) was alleged to have been established against the Claimant. I should remark that the Claimant did not state the Rules of the PSR that the Defendant violated in terminating his appointment.

In defence of the alleged breach of procedure, the Defendant through DW1, her sole witness, testified that upon a letter of complaint received from one Faith Patrick, a student of the Defendant’s College of Administrative Studies and Social Development alleging sexual harassment by the Claimant, the complaint was reported to the Rector of the Defendant, that a query was issued and served on the Claimant; that the Claimant replied to the query denying the allegation and that the Claimant was placed on suspension pending the determination of the case by the Senior Staff Disciplinary Committee (SSDC); that the Claimant was invited to appear before the SSDC; that the SSDC made recommendation for the termination of the Claimant’s appointment; that the recommendation was forwarded to the Governing Council and that the Council approved the termination of the Claimant’s appointment.

27. I had undertaking a scrupulous review of Exhibit D4, the report of the SSDC on the allegation of sexual harassment levelled against the Claimant, contrary to the contention of the Claimant, I am of the view that the meeting with the SSDC was more than an “interactive session”. At paragraph 7.0 - 7.1 at page 8 of the Report, the Committee informed the Claimant of the purpose of his invitation, which was on the allegation of sexual harassment bothering on misconduct. I have also considered the argument of the learned counsel for the Claimant that the SSDC established the denial in its report, Exhibit D4. Learned counsel, however did not state the further remark of the SSDC. The SSDC’s further remark states as follows:

“However, the immoral behavior observed on the part of Hussayn Umar Idris for being arrested with the student in a hotel room is misconduct”

28. Furthermore, contrary to the submission of learned counsel for the Claimant that the burden has shifted to the Defendant to establish that it complied with the prescribed procedure of the PSR in terminating the Claimant’s appointment, I should further reiterate the trite position of law that it is not in principle for the employer who is a Defendant to an action brought by the employee to prove the wrongful termination or dismissal of the Claimant’s appointment. See: Nigeria Gas Co Ltd Vs Dudusola [2005] 18 NWLR (Pt 957) 292; Morohunfola Vs Kwara Tech [1990] 4 NWLR (Pt 145) 506 SC; Adams Vs L.S.D.P.C. [2000] 5 NWLR (Pt 656) 291 at 316; Ikuma Vs Civil Service Commission, Benue State & Ors [2012] LPELR 8621.

29. Perhaps, I should remark at this point that it is in accord with judicial decision and business practice to suspend an officer being investigated from the place of work to permit unhindered investigation to be carried out and also to allow peace to reign at his place of work. The period of suspension will keep such person out of further mischief and provide his employer further time for reflection and rumination. There are both foreign and local judicial decisions approving suspension of an employee pending the final determination of his involvement in the accusation. In University of Calabar Vs Esiaga [1997] 4 NWLR (Pt 502) 719 at 739-740, the meaning of suspension of an employee from his employment was stated as follows: -

"The word suspension means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension results in a disciplinary action, it is not invariably so.”

See also Longe Vs First Bank Plc [2006] LPELR 7682; Galadima Vs Governor of Yobe State & Others [2018] LPELR 47172

30. On the allegation of denial of opportunity to be heard or breach of right to fair hearing, it is trite that the concept of fair hearing is not a mere rhetoric or empty verbalism or technical rule; it is one of substance. It is a fundamental right of the individual guaranteed in the Constitution, the breach of which will nullify the proceedings in favor of the victim of the breach. The Constitutional guarantee is construed in the light of the peculiar facts of each case and the facts alone. Accordingly, a party alleging the actual or imminent breach must show clearly from the facts of the case that his right has been violated or in the verge of being violated.

I wish to further point out that the important thing required of the Defendant, by the rules of natural justice or fair hearing applicable to this case, is to give the Claimant opportunity to be heard. The question is whether a party who is entitled to fair hearing and who is desirous of being heard before his fate is decided, had in fact been given ample and adequate opportunity of being heard. See Ahmad Vs Sahab Enterprises (Nig) Ltd & Ors [2016] LPELR 41313 and Oloruntoba – Oju Vs AG Federation [2016] LPELR 41250.

31. In the instant case therefore, I am of the firm view that the Claimant was given opportunity to be heard; and as such one can say that the requirements of natural justice were sufficiently complied with. In other words, the Defendant did not breach the terms and conditions as stated in Exhibit C1. The Claimant’s complaint of non-compliance with the disciplinary procedure as prescribed by the PSR and his condition of service; and for lack of fair hearing is baseless and lacks merits. I so hold.

In the circumstance therefore, I am of the candid opinion that the Defendant exercised its right to terminate the Claimant’s appointment for gross misconduct vide Exhibit C6, the letter of termination of appointment. In other words, the termination of the appointment of the Claimant vide Exhibit C6 is not unlawful. I so further hold.

32. Having held that the termination of the Claimant’s appointment was not unlawful, I am of the view that the Claimant’s claims for reinstatement, arrears of salaries and allowances cannot be granted since these reliefs are hinged on the termination being unlawful.

Reliefs 4, 5 and 6 to set aside the termination of the Claimant, for reinstatement and payment of arrears of salaries, allowances are accordingly refused. And I so hold.

On the basis of the foregoing analysis therefore, I must and I hereby resolve issues one and two for determination in this suit against the Claimant.

It is therefore the conclusion of the Court that the Claimant’s claim lacked in merit, in substance and in probity. The suit shall be and is hereby accordingly dismissed.

ISSUE THREE

33. The Defendant filed a Counter-Claim seeking a declaratory relief and solicitor’s fee for prosecuting this suit. The Claimant did not file a Defence to the Counter- Claim. Has the Defendant as Counter-Claimant adduced necessary credible and convincing evidence through its witness to prove the reliefs, declaratory and otherwise?

34. It is settled and as correctly submitted by learned counsel on both sides, that a Counter-Claim is for all intents and purposes a separate, independent and distinct action and the Counter-Claimant, like all Claimant in the main actions, must prove his Counter-Claim with credible and convincing evidence to obtain judgment. For this reason, the fact that the main claim has succeeded (or failed) does not mean that the Counter-Claim must fail (or succeed) it all depends on the evidence in support of the Counter-Claim. If the Counter-Claim includes a declaration as it is in this case where the declaration is the fountainhead of the Counter-Claim, the Counter-Claimant must also satisfy the Court with credible evidence that he is entitled to a declaration. That, he has to do on the strength of his case as the fact that the Defendant to the Counter-Claim admits his Counter-Claim or failed to file a defence is of no consequence.

35. The Defendant/Counter-Claimant’s claim in relief (1), is seeking a declaration that the Claimant’s appointment with the Defendant has been validly terminated in accordance with the Defendant/Counter-Claimant’s extant laws and regulations.

Having undertaken an extensive evaluation of the evidence adduced in support and against both the main suit and the Counter-Claim together in the foregoing, I hereby permit myself to adopt the Court’s findings and conclusions in the foregoing in holding that the Defendant is entitled to the grant of relief (1) of his Counter Claim, the same having been found to be meritorious.

36. The Defendant/Counter Claimant has also claimed for the sum N1,000,000.00 (One Million Naira) as solicitor’s fee for prosecuting this suit. I agree with the submission of learned Claimant’s counsel that the claim was not proved. It is trite that he who asserts the existence of a fact must prove the truth thereof in order to succeed in the action, and a paragraph in a pleading which is not proved on the preponderance of evidence is of no avail to that party.

As such the Counter-Claimant’s relief for solicitor’s fees is clearly unfounded and is accordingly dismissed.

37. In the final analysis, the Defendant’s Counter-Claim succeeds in part. For the avoidance of doubt and abundance of clarity, judgment is hereby entered with respect to the Counter-Claim on the following terms:

1. It is hereby declared that the Claimant’s appointment with the Defendant has been validly terminated in accordance with the Defendant’s extant laws and regulations.

2. Parties shall bear their respective costs.

SINMISOLA O. ADENIYI

(Hon. Judge)

14/10/2021

Legal representations:

Samuel Atung Esq., with Messer’s Mercy Umar Esq., Z. Z. Adamu and Y. B. Galadinma Esq., for Claimant

A. Is’haq Esq., for Defendant