IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

DATED 28TH JULY, 2022              SUIT NO :NICN/LKJ/33/2020

 

BETWEEN

SULEIMAN DARDA’U          …………………….. CLAIMANT

AND  

KOGI STATE POLYTECHNIC

KOGI STATE GOVERNMENT…………………. …DEFENDANTS  

 

Representation.

B.M. Musa Esq for the Claimant

F.B. Obayori Esq with O.J. Joseph Esq, T. M. Joshua Esq for the Defendants

                                                      JUDGMENT

1.      By a General Form of Complaint dated 18th day of December 2020, the Claimant prayed this court for the grant of the following reliefs against the defendants;

                                                            a.      A declaration that the purported dismissal of the claimant from the service of the 1st defendant is illegal, wrongful, null and void.

                                                            b.      An Order of the Court that the Claimant be reinstated back to the service of the 1st Defendant with all his benefit and entitlement paid.

                                                            c.      A Declaration that the Claimant is entitled to the payment of his arrears of salaries of N1,856,906.25 from September 2019 when his salary was abruptly stopped till December 2020 when this suit was filed and until his finally reinstated back to office.

                                                            d.      N10,000,000.00 (Ten Million Naira) damages in favour of the claimant for the embarrassment and the emotional trauma suffered by the unlawful dismissal of the claimant by the 1st defendants.

                                                            e.      10 percent interest on the judgment sum until the final liquidation of same.

2.      It is Claimant’s case that he was an employee of the 1st Defendant having been employed in 2014 and which appointment was subsequently confirmed. That he worked as an Assistant Registrar and as part of his schedule of work he would author letters, memo and other correspondence on behalf of the Registrar his superior. However, on the 18th July, 2019, a query was issued to him by the Registrar on a false accusation that he wrote a letter on the 15th May, 2018 without permission of the School which led to his indefinite suspension in less than two weeks by the Secretary of the State Government (SSG). On 3rd August 2019 the SSG through a letter addressed to the Chairman of the Governing Council of the 1st Defendant, directed his dismissal from the 1st Defendant. He was dismissed despite the fact that he was not found guilty of the allegation against him by the sub-disciplinary Committee constituted by the 1st defendant to investigate the said allegation. The said dismissal was done in contravention of the rules and regulations laid down in the Public Service Rules and the 1st defendant Revised Conditions and Scheme of Service. It is also part of Claimant’s claims that the dismissal letter was prepared three weeks ahead of the Governing Council meeting which was held on the 4th October 2019.On the 7th January, 2020 he wrote a letter to the Registrar/Secretary to the Council for his reinstatement into the service following his wrongful dismissal but same proved abortive which dismissal has caused him untold hardship. Hence, this action.

 

3.      The defendants in response, vide their statement of defence maintained that while claimant was an Assistant Registrar who worked in the senior establishment unit of the Registry of the 1st defendant before his dismissal, as an Assistant Registrar, he can only assist the Registrar with administrative work but cannot author any correspondence or mail and can neither sign any correspondence himself but only the Registrar or the Rector of the 1st Defendant can. Sometimes in the year 2017, the 2nd Defendant conducted screening of Civil Servants in the State and one Yahaya Ademu, a staff of the Kogi State House of Assembly presented a forged Certificate to the Committee. However, Claimant on the 15th May 2018 without due authority wrote a letter to the Governor authenticating the said Ademu Yahaya’s certificate. The said Ademu Yahaya was a student of the 1st defendant who had only done one semester examination by the time he presented the forged certificate to the Screening Committee. That even the Registrar has no such power to write the Governor on behalf of the Rector and as such the Registrar cannot delegate such power to anyone in the Registry. Claimant appeared before a Committee and was given fair hearing by the Committee before whom he admitted the allegation against him and that all the laid down procedure for the discipline of staff of the institution were followed. They equally averred that the dismissal letter issued to the claimant was issued after the Council meeting held on the 4th October, 2019 by sheer error and inadvertence of the registry, the date on the dismissal letter conveying the decision of Council held on 4th October 2019 was erroneously written as 8th September, 2019 instead of 8th October 2019 and which letter was received by Claimant on 11th October 2019 as reflected on the daily entries from the Registrar’s office.

 

4.      Also filed along with the statement of defence is a Notice of Preliminary Objection which this Court has ruled would be taken together with the main suit. The said Notice of Preliminary Objection is praying the Court to strike out this suit for being grossly incompetent on the following grounds;

a.      The Originating process to wit: Complaint dated 18th December 2020 was not signed in compliance with Order 30 Rule (10)(c) (i) of the Rules of this Court.

b.      That the endorsement of claim in the Complaint (originating process) was not signed by either the Claimant himself or his Legal Practitioner in compliance with Order 4 Rule (4) (3) of the rules of this Court.

c.       That the Claimant’s action cannot be maintained against the Defendants outside the Statutory 3 Months required by Section 2(a) of the Public Officers Protection Act (the Defendants being public officers)

d.      The Claimant’s suit is statute barred and dead on arrival

e.      The Court lacks the requisite jurisdiction to entertain this suit.

 

5.      Accompanying the Notice of the preliminary objection is a Six (6) paragraph affidavit deposed to by one Ejura Apeh, Litigation Registrar in the Chamber of the Attorney-General of Kogi State, Ministry of Justice. Equally filed in support of the Notice is a written Address where in Counsel submitted two (2) issues for determination of this Court to wit;

                                                            a.      Whether the unsigned originating process (Complainant dated 18/12/2020) contrary to the provision of order 3 Rule (10) (c) (i) and Order 4 Rule (4) (3) of the Rules of this court is a valid and competent process before the Court capable of evoking the jurisdiction of the Court.

                                                            b.      Whether the suit of the Claimant i.e. Suit No. NICN/LKJ/33/2020 is not barred by the Statute of Limitation.

 

6.      On issue one, learned counsel submitted that for a cause or matter to be competent before a Court of Law He cited in support the case of Madukolu v. Nkemdilim [1962] 2 ALL NLR 587. He submitted that the jurisdiction of a Court cannot be said to have been properly invoked until the due process of law has been followed. He cited in support the case of Tukur v. The Government of the Gongola State & LOrs [1997]LPELR-3237(SC). He submitted that Claimant’s action was filed in contravention of Order 3 Rule 10(c)(i) and Order 4 Rule 4(3) of the National Industrial Court Rules which requires that a General Form of Complaint must be signed by either Claimant or his lawyer and which Rules are meant to be obeyed.  He relied on the cases of ACB Plc v. Houston Ltd [1997]8NWLR (Pt 5115)110@125-126 and Braithwaite v. Skye Bank Plc [2013]5NWLR (Pt 1346)1. He submitted that an unsigned document has no efficacy in law an d the General Form of Complaint as such is invalid. He relied on Mbang v. Guardian Newspapers Ltd & Anor [2018]LPELR-4474(CA)  and Garuba v. Kwara Investment Company [2005]5NWLR (Pt 917)160. He submitted that claimant’s action cannot stand for this incompetence and as such has denied the Court of the requisite jurisdiction to try the action. He cited in support the following cases; Nweke v. Okafor [2001]10 NWLR (Pt 1045)521 and; Braithwaite v. Skye Bank Plc, supra.

 

7.      On issue two, learned counsel submitted that the suit of the Claimant is incompetent and cannot stand having been filed outside the statutory limitation period of three months required by Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004(hereafter referred to as POPA). He submitted that from the facts of the case at hand, Claimant’s cause of action arose July, 2019 while this suit was filed on the 18/12/2020. He submitted that Claimant’s action having been filed outside the three months window period is statute barred. He relied on the case of A.G. Federation v. Abacha [2010]17 NWLR (Pt 122)1 and; Hassan v. Aliyu & Ors [2010]LPELR-1357(SC). As such, Claimant’s right is thus extinguished.

 

8.      On the 22nd day of October, 2021, he Claimant responded to the Preliminary Objection by filing a counter affidavit in response to the Defendants affidavit in support of Preliminary objection sworn to by Claimant himself.  Also filed in response is written address in support of the Counter affidavit wherein learned counsel on behalf of Claimant argued on the issues raised by the defendants in Preliminary Objection wherein counsel for the claimant responded to both issues raised by the defendants together. He submitted that the complaint before this Court was duly signed by the claimant’s Counsel B.M Musa Esq. He urged to take a look at the process filed which is before the Court.

 

9.      On the submission that this suit was filed out of the three months period provided in Section 2 (a) of the POPA, learned counsel submitted that said Act will not be applicable to the defendants in this case which are State bodies. He referred the Court to the case of CIL Risk & Asset Management Ltd v. Ekiti State Govt & Ors LPELR-49564. He submitted further that assuming but without conceding that POPA even applies to the defendants, its application is not absolute and as such has exceptions. He cited in support the case of A.G Rivers State v. A.G Bayelsa State [2013]3NWLR (Pt 1340)123@148-150, Paras F-A. He submitted that Claimant’s case being one which the damage cause claimant has not ceased falls within the exceptions to the period of limitation in the said POPA. It is also his submission that the defendants who acted without any semblance of legal justification and in bad faith in contravention of the Revised Conditions and Schemes of Service of the 1st defendant are not entitled to protection under the said POPA. He placed reliance on the case of Sule & Ors v. Orisajimi [2019]LPELR-470. He urged the Court to discountenance the objections raised by the defendants as same is lacking in merit.

10. On the 1st day of November, 2021, learned counsel on behalf of the defendants filed a Reply on Points of law to Claimant’s written address in opposition to the Notice of Preliminary Objection. He submitted that agencies of the Federal Government and State Agencies are public officers within the contemplation of Section 2 (a) of the POPA and are entitled to protection provided thereunder. He relied on the case of Ofili v. CSC [2008]2 NWLR (Pt 1071)238. He submitted that the 1st defendant being an agency of Kogi State Government is a public officer within the contemplation of the Public Officer (Protection) Law Cap 135, Laws of Kwara State which is applicable to Kogi State. He submitted that Claimant’s cause of action challenging his dismissal would be deemed to have arisen from the date Claimant acknowledge the receipt of his letter of dismissal which was October, 2019. He relied on the case of Yare v. N.S.I.W.C [2006]2 NWLR (Pt 965)546@553, Paras G-H, 557, Para C. He submitted that the defendants are indisputably qualified to take protection offered public officers under Section 2 (a) of POPA. He submitted that the defendants are also covered by the provision of Section 2 (a) of Public Officers Protection Law, Kwara State, supra. He relied on Adio Suleiman v. Kwara State Polytechnic [2006]LCN/2052(CA). He submitted also that the case of Sule & Ors v. Orisajimi, supra cited by the Claimant is not applicable to this case as the defendants acted in good faith.

 

11. On the 17th day of November, 2021 Claimant opened his case and testified on oath and adopted his written depositions made on 18/12/20 and 22/10/2021 as his oral evidence in this case. Exhibits S-S17 were tendered through him without objection. He was subsequently cross-examined by counsel on behalf of the defendants. Afterwards, he closed his case.

 

12. On the 17th day of March, 2022, defendants opened their case by calling DW, one Raji Itopa O.Z testified on oath as he adopted his written deposition as oral evidence and through whom Exhibit R-R10 were tendered. DW was cross examined by learned counsel on behalf of Claimant who tendered Exhibit R11 through him. Afterwards the case of the defendant was closed and the matter was adjourned for adoption of final written addresses of parties.

 

13. In compliance with the Rules of this Court, Counsel on behalf of the Defendants filed his final written address first on the 5th day of April, 2022 wherein counsel formulated three issues for determination thus;

                                                            a.      Whether the act of the Claimant in fraudulently procuring a fake certificate and writing an official letter unbehalf of the 1st Defendant without authorisation does not amount to gross misconduct to warrant his dismissal?

                                                            b.      Whether the dismissal of the Claimant from service was in line with the procedure laid down in Exhibit R11?

                                                            c.      Whether the Claimant is entitled to the grant of any of the reliefs sought in his pleadings?

 

14. Learned Counsel for the defendant submitted that the claimant was rightfully dismissed by the 1st defendant for an act of gross misconduct in which reason for dismissal was clearly stated in his dismissal letter. He cited the case of Azenabor v. BUK& Anor [2009] LPELR- 8721 (CA). He submitted that claimant’s act is an insubordination which the defendant considered detrimental to the corporate existence of the institution and that Claimant’s admission that authentication of result is not part of his schedule of duty, the admission of which is against his interest as the law had long been settled those facts admitted requires no further proof. He cited the case of Vandighi v. Hale [2014] 49 WRN 138 @ 14. Learned counsel submitted that the claimant act of abetting forgery is considered a grave character to undermine the confidence that should exist between employee and employer. He submitted while relying Ziideeh v. Rivers State Civil Service Commission [2007]LPELR-3544 (SC) that Claimant was given fair hearing. He submitted that the Claimant persisted in his willful act of disobedience when he went ahead without any instructions to authenticate the result in question to the Head of Service and a subsequent one to the Governor. He relied on the case of UBN v. Soares [2012]LPELR-8018(CA) that willful disobedience of a reasonable order of an employer by employee is a definite act of misconduct. 

 

15. Learned counsel submitted that Claimant who under cross examination stated that he got an oral instruction to write the letter was the same person wh contradicted himself in Exhibit R5 admitting that he was iindebted for not telling the Registrar and again under cross examination admitted there are hierarchy and procedure to be followed in official communication which amounts to approbating and reprobating on the same issue which cannot be believed. He cited in support, the case of Alaribe v. Okwonu [2016] 1 NWLR (Pt.1492)66, Paras D-E. He submitted that to prove that the claimant was delegated to do the act, the onus remains on the claimant to demonstrate same by placing before the court Document/memo by which he was instructed to do so by the 1st defendant. He objected to the admissibility of some of the documents tendered by Claimant and submitted with respect that Section 89 (e) & (f) 90 (1) (c), 105 and 106 (a) (ii) of the Evidence Act, 2011 (hereafter referred to as the Evidence Act) make certified true copy (CTC) the only admissible secondary evidence of public document. He cited in support the cases of Lorapuu v. State [2020] 1 NWLR (Pt. 1706) 391 @ 411, Paras G-H(SC) and Kassim v. State [2018]4NWLR (Pt 1608)20@46-47, Paras C-A. He then submitted that Exhibit S4, S8-S17 which are all photocopies tendered by the claimant are all inadmissible since they have not been certified and it is the duty of Court to expunge such documents erroneously admitted. He relied on; Brossette Manufacturing (Nig) Ltd v. M/S Ola IL [2007]LPELR-809 (SC); Shanu v. Afribank (Nig) Plc [2002]LPELR-2036 (SC)and ; Buhari v. INEC & Ors [2008]LPELR(SC). He submitted therefore that the consequence of the above is that claimant has no document in support of his claim. He cited the case of Rilwan & Partners v. Skye Bank Plc [2015] 1 NWLR (Pt 1441) 437 @ 437, Paras F-G in support.

 

16. On issue two, learned Counsel submitted that the case of the Claimant was a dismissal in accordance with the 1st defendant Revised Condition and Scheme of service for staff of the polytechnic 2017 Chapter 8.0. Learned Counsel submitted that in dismissing the claimant the 1st defendant followed the laid down procedure of Exhibit R11. He was queried (Exhibit S6) and the Claimant responded when not satisfied with the reply a disciplinary committee was set up to try the claimant’s case. Furthermore, learned counsel submitted that the claimant’s contention that the letter of dismissal was prepared ahead of the meeting of the governing council was not true as it was a typographical error.

 

17. On issue three, learned Counsel submitted that for the claimant to succeed in his claims, the onus is on him to prove the assertions as true to the extent that the Court will belief his story to be true, which the claimant has failed to do.  He relied on the case of Sokwo v. Kpongbo [2008] All FWLR (Part 410) 680 @ P. 701, 702, Paras A-H. He submitted that the onus of proof is on the party who claim for a declaratory relief to show to the satisfaction of the Court that he is entitled to same upon the strength of his case and not on the weakness of the defendants. He cited the case of CPC v. INEC [2011] 18 NWLR (Pt 1279) 493 @ 539-540 in support. It is his submission that relief ‘a’ and c’ are declaratory reliefs which can only be granted on the strength of the claimant’s evidence while relief b, Learned counsel submit that it is trite law that a court will not order reinstatement of an employee whose conduct has been detrimental to the interest of his employer, and that relief d’ must be strictly proved as claimant did not lead evidence as to his claims.

 

18. Learned Counsel on behalf of the Claimant filed his final written address on the 26th April, 2022, wherein Counsel the following issues for determination;

i.        Whether or not the termination of the employment of the claimant by the 1st defendants can be said to be valid?

ii    Whether or not the claimant has proved his case to be entitled   to judgment?

19. Learned counsel argued both issues together. He submitted that the dismissal of the claimant by the defendant was unlawful illegal and void, he continued to submit that it is no doubt that the nature of the employment of the claimant is one with statutory flavor and in termination of such employment if condition precedent are no been followed such dismissal or termination shall be null and void and of no effect. He cited in support the case of Bamgboye v. University of Ilorin [1999] 6 SCNJ 296 @347-348. He refer to chapter 16 rules 160201 of the Kogi State Public Service Rules, 2019 and also rules 160501 which from all intent, none of the procedures stated above was followed before the claimant who is an administrative staff was dismiss from service. He submitted further that the Investigative Committee that sat on cases of forgery of certificate of the polytechnic is a committee set up by the School Management which is quite different from the Committee of the Governing Council known as Appointment, Promotion & Disciplinary Committee and against the Provision of Chapter 8 Section 8.5. He submitted also that the Scheme of Service made provisions for the procedures to be followed in discipline an erring Staff of the institution. The first step to be taking is a warning from the head of department of the erring staff. Learned counsel submitted that there is nothing before this court to show that the claimant was giving any warning either verbally or orally before a query was issued to him. He submitted that Chapter 8, Section 8.5 of the Scheme and Conditions of Service provides among other things that if it appears to the Council that there are reasons for believing that any persons employed as a member of the Academic Administrative or Technical staff of the institution other that the Rector should not function in office, the council shall take some steps, however in this instance suit none of the above was followed.

 

20. Learned counsel submitted further that defendants’ allegations that the claimant forged a Certificate of the School in respect of a student is one with an allegation of crime that must be proved beyond reasonable doubt. Learned counsel also submitted that the dismissal letter which is the basis of this case is invalid and urged the Court to discountenance same as the dismissal letter (Exhibit S2) dated the 8th day of September 2019 was prepared even before the Governing Council could sit on the matter involving the claimant which goes to show that defendants had prejudice the whole process ab initio. He submitted further that the purported suspension letter issued to the claimant was from the office of the SSG, who lacks the power to discipline a staff of the 1st defendant. He cited in support the notorious case of UAC v. Macfoy, supra.

 

21. Learned responded as regard the objection of the defence counsel to the admissibility of some document tendered by the claimant on the ground that they were not certified. He submitted that the documents in question are relevant to the case of the claimant and urged the Court to admit them in evidence as rejecting them would defeat the cause of justice in this case.

 

22. Learned counsel on behalf of the defendants filed his Reply on point of law on the 29th day of April, 2022 and adopted same vide letter dated same day. Therein, he submitted that the provision of Exhibit R11 is both misconceived and indeed misconstrued by Claimant. He submitted that any of the listed disciplinary measures provided in Chapter 8 paragraph 8.3 of the Exhibit R11is optional to be used in any of the cases by the operational word “may” and that in Claimant’s case, it was a dismissal which dismissal complied with the rule of natural justice. He cited the case of Olatunji v. Adedapo [2014] 5 WRN 149 @ 154 in support. It is also part of his submissions that the process that led to the dismissal of the claimant from service was a fair trial as there was no infringement of the principle of natural justice. He submitted further that the dismissal letter is valid, because the claimant received same on 11th day of October, 2019 and signed the endorsement register acknowledging receipt of the letter of dismissal. He cited the case of Ogundele & Anor v. Agiri & Anor [2009] 12 SC (Pt 1) 135.

 

23. Learned counsel also submitted that the claimant’s counsel in his written address totally misinterpreted Chapter 8 Section 8.5 Exhibit R11. He submitted that a cursory look at the said section 8.5 reveal that it is related to removal from office which is clearly distinguishable from dismissal, more so, the Section relate to Staff on appointment in the institution and on type of disciplinary measure that can be taken against him, which the claimant does not fall into that category. Furthermore, he submitted that the claimant at paragraph 4.7 of the claimant’s written address unsuccessfully attempted to state that the case of forgery was not proved. He referred to Exhibit R, R1 and R6 and cited the case of Avre v. NIPOST [2014] LPELR 22629 (CA). He also submitted that an act outside the scope of employment and duties, which act is prejudicial as in the case at hand is misconduct. He relied on the case of Igbinosa v. Delta Steel Co. Ltd [1994] LPELR- 22949 (CA).

 

24. After a careful perusal of the Notice Preliminary Objection, the facts of this case as presented by the parties, the exhibits tendered in support of each party’s case and the submission of learned counsels. I am of the view that the issues that will best determine this case are;

 

 

1.     Whether this Court is clothed with the requisite jurisdiction to entertain this case.

2.     Whether or not the claimant is entitled to the reliefs sought in this case.

25. On issue one, one of the grouse of the defendants both in the Notice of Preliminary Objection and in the statement of defence is that the General Form of Complaint issued on behalf of the claimant by his counsel was neither signed by the claimant in person nor by his counsel and not having signed as required by the Rules, it is safe to simply say that the requisite due process for commencement of this action has not been complied with and jurisdiction of the court is yet to be activated and they relied on the notorious case of Madukolu v. Nkemdilim, supra. The claimant on one hand in response to the preliminary objection vide a counter affidavit stated that the complaint before this Honourable Court was duly signed by the Claimant’s counsel. The questions raised in the Preliminary Objection filed by the defendants touches on the jurisdictional competence of this Court. Jurisdiction is a sine qua non in all legal proceedings so much that when raised, the Court has a duty to have it settled first one way or the other before the Court proceeds to the substance of the case. See; Adama v. Maigari [2019]3NWLR (Pt 1658)26@46, Para A; AG Adamawa State v. AG. Federation [2014] 14 NWLR (Pt. 1428) 570.

 

26. The provisions of the National Industrial Court (Civil Procedure) Rules, 2017 is clear as to the signing of Originating process. Specifically Order 4 Rule 4(3) of the Rules provides that Claimant or his counsel shall sign the originating process. It is therefore mandatory for the Originating process to be signed by either Claimant or his counsel. The competence of an originating process is important to an action and the importance can never be over-emphasized. In the case of Braithwaite v. Skye Bank Plc. [2013] 5 NWLR (Pt. 1346)1 @ 15, the Supreme Court held that a Writ of Summons is an Originating Process by means of which action are commenced, the competence of such process is a prerequisite for a valid and subsisting claim. When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. I am aware that an unsigned originating process would affect the competence of the suit and thus the jurisdiction of the Court. See for example the case of Mainasara v. FBN Plc [2022]6 NWLR (Pt 1827)465@497, Para G where the Apex Court held thus; “An unsigned writ of summons raises a fundamental question which impacts on the competence of the action and the Jurisdiction of the court to entertain the suit.” [Emphasis mine]. See also the following cases; Dannet -Owoo & Anor v. Effiong [2020]LPELR-50079(CA)1@15-32, Para B and; Sami v. APC & Ors [2019]LPELR- 48045(CA)1@64-70, Para D.

 

27. I am mindful of the submission of learned counsel on behalf of the defendants in his Reply on the Points of law to Claimant’s written address in opposition to the Notice of Preliminary Objection. He had submitted and relied on the case of Alatede v. Falode & Anor, supra a 1966 decision of the Supreme Court where Brett JSC described how a writ should look like that Claimant’s lawyer on page 3 of the Complaint where the name of the lawyer who issued the Complaint is merely put his name but without his signature. Let me first say that in our adjectival law specifically in this Court what governs the rules of procedure in this Court is the Rules of this Court. Order 4 Rule 1 which governs the endorsement of Complaint provides thus; “Every originating process shall be printed on Opaque A4 paper of good quality and shall contain the claim, the relief or remedy sought with the full names and address of the claimant or appellant.” It goes further in Order 4 Rule 4 thus; 4.(1) A claimant suing in person shall state on the originating process the Claimant’s contact address(es), telephone number(s) and e-mail address(es) as the Claimant contact information for service of any Court process.

Contact information of Claimant’s Legal Practitioner

(2) Where a claimant sues through Counsel, the Counsel shall state on the originating process the address, telephone numbers and e-mail address(es) of the Counsel’s chambers as the contact information for service.

Provided that where the Claimant’s Counsel is domiciled outside the Judicial Division where the suit was filed, the Counsel shall in addition, state the address, telephone numbers and other contact information of Chambers within the Judicial Division of the Court as contact information for service of processes on the Claimant’s counsel.”

Going further, the Rule provides thus in Order 4 Rule (3);

Signature of Counsel on originating process. Form 1

(3) An originating process shall be signed by the Claimant or Counsel where the claimant sues through a Counsel.” See also the provisions of Order 6 Rule 1(2) of the Rules which provides also that each copy of the Complaint shall be signed by Claimant or his counsel. It is clear from the Rules that Claimant or his legal Practitioner shall sign the process the process shall also state the address for service of the Claimant or his lawyer. Although the provisions of the Rules did not state where the requisite details and signature would be on the Complaint but it is clear that the Complaint shall be as in Form 1. A cursory look at form 1 seems to be that the name and signature of the Counsel would be where the name and address of the Counsel who issued the Complaint is.

28. The pertinent question at this stage is can one say that there is no signature on the Complaint as maintained by the defendants? It must however be borne in mind that the Court has power to look at a document or documents in its file. See the following cases; Iliyasu v. Ibrahim [2019]LPELR-48218(CA)1@43, Para B; Gajimi v. FBN Plc [2018]LPELR-43996(CA)1@21, Para D and; PDP & Ors v. Ezeonwuka & Anor [2017]LPELR-42563(SC)1@77, Para A. I have looked into the file of this Court and I find that the General Form of Complaint was signed by learned Claimant’s counsel B.M. Musa with his address for service and contact information on page 2 of the record and his NBA seal is equally affixed to same though not at the space where he wrote his name as the one who issued the Complaint. To my mind, what is important is that learned counsel’s signature and description is on the Complaint for proper authorship together with his seal and address for service. Order 4 Rule 4(3) and Order 6 Rule 1(2) 3 envisage that the Complaint must be signed by either Claimant or his lawyer.  It would have been a different issue entirely if the Complaint was not signed at all by either Claimant’s counsel or Claimant himself.  Failure to put the signature of BM Musa Esq at the side where his name as the issuer of the Complaint was (that is the endorsement side) as suggested in Form 1 is mere irregularity. That will not invalidate the Complaint as learned Counsel signed the Complaint though not at the endorsement side. More so, Order 5 Rule 1 provides that non-compliance with the Rules shall be treated as an irregularity.  In the case of Unitykapital Assurance v. Uzokwu [2020]LPELR-48763(CA)1@15-17,Para C Agim JCA (now JSC) held while considering the effect of not signing  an Originating Process as required by the Rules of this Court, 2017 thus; “It is obvious from the face of the writ or complaint that it was not signed by the claimant or his legal practitioner as required by Order 6 Rule 1(2) of the NICN (Civil Procedure) Rules 2017 which provides that each copy shall be signed by the claimant suing in person or by the Counsel otherwise and shall be certified after verification by the Registrar as being a true copy of the original process filed.? So, the writ or complaint did not comply with Order 6 Rule 1(2) of the said NICN (Civil Procedure) Rules. The question that arises at this juncture is whether the noncompliance with Order 6 Rule 1(2) renders the writ or compliant incompetent. The answer is no because the said NICN (Civil Procedure) Rules 2017 prescribe the consequences of non-compliance with it in Order 5 Rule 1 as follows- "Failure to comply with any of these Rules may be treated as an irregularity and the Court may give any directions as it thinks fit." By proceeding to try the case on the basis of the said writ or complaint, the Trial Court treated its said noncompliance as an irregularity. In the light of Order 5 Rule 1, it cannot be validly contended that the failure to comply with Order 6 Rule 1(2) renders the writ incompetent and the argument that the Trial Court was therefore wrong to assume jurisdiction to try the suit is not valid. In view of the clear provisions of Order 5 Rule 1 of the NICN (Civil Procedure) Rules, I hold that the decision of this court Ofordu & Ors v. Aniagolu &Ors delivered on 30-6-2016 in CA/E/477/2014 cited as a ground for this application, is per incuriam and therefore is hereby departed from...”[Emphasis mine] As such even if learned counsel did not put his signature at the side where his name as the issuer of the Complaint is as suggested by the format in Form 1, such is a mere irregularity that will never be insufficient to invalidate the writ. In view of the above, I discountenance the objection of learned counsel to the competence of the Originating process which in this case is the General Form of Complaint.

 

29. It is also, the contention of the defendants that this action is caught up by the provisions of Section 2 (a) of POPA. There is no doubt that Claimant’s action was filed on the 18th day of December, 2020. The defendants in this case had contended that Claimant’s cause of action arose in July, 2019.  I am afraid this cannot be true and I will proceed to give my reason. It is settled that a cause of action accrues on the date on which the incident giving rise to the right of action occurs. That is from the date of occurrence of event or decision or action Claimant complains of. See the following cases; Karshi v. Gwagwa [2022]9 NWLR (Pt 1834)139@168, Para G; Tanko & Ors v. Kusherko [2018]LPELR-46965(CA)1@21,Paras B-B; Registrar, College of Education, Katsina Ala & Ors [2013]LPELR-22825(CA)1@13, Para B. The accrual of cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action. Thus, a cause of action cannot arise until all that needs to take place to complete the complaint has happened and an aggrieved person is aware that his right has been infringed upon. See the following cases; Karshi v. Gwagwa, supra @182-183, Paras F-B; INEC v. Onowakpoko [2018]2NWLR (Pt 1602)134@163, Paras E-H; Shell Petroleum Dev. Co. v. Farah [1995] 3 NWLR (Pt. 382) 148 and; Adimora v. Ajufo [1988] 3 NWLR (Pt. 80)1. Ordinarily from the originating process of Claimant which is supposed to be considered when determining whether an action is statute barred, Claimant’s cause of action would have arisen on the 8th day of September, 2019. However, the Supreme Court in a recent decision delivered on the 10th day of February, 2022 in the case of Karshi v. Gwagwa, supra @159,Paras A-C,161, Paras B-F held that generally to determine if an action is statute barred, it is the originating process that the Court should look at to find out the date that the cause of action occurred but where the objection that the suit is statute-barred is considered and determined after the conclusion of evidence as in this instant, all the processes and evidence before the Court must be considered especially where the objection is determined as part of or along with the final judgment on the merit of the dispute in the case like is done in this instance. The Court went further at page 162, Paras A-D to hold that the general rule that it is the originating process that should be considered limits the Court from considering the processes filed by the defendants in response to the originating process, even when the objection was determined by trial Court in its final judgment after the conclusion of evidence. In such cases, the Courts ignore other evidence in the case that disclose the actual cause of action and pretend that it does not exist and such approach violates the fundamental principle of fair hearing that requires the Court to consider all evidence before it in its final judgment or to consider all evidence on a point in determining that point. The Court held that since the preliminary objection was determined along with the Originating summons, the trial Court was bound to look at all the processes before it for consideration. It is in the light of the above that I will consider all the processes and evidence in this Court in the determination of when the cause of action arose.

 

30. A perusal of the General Form of Complaint shows that Claimant’s cause of action is against his dismissal which he is challenging as unlawful. Claimant had averred vide his statement of facts that the letter of dismissal is dated 8th September, 2020, a perusal of the said letter of dismissal which is attached to the originating process shows that it was dated 8th day of September, 2019. Although, Claimant is challenging a number of procedure adopted by the defendants leading to his dismissal, his cause of action in this case completely accrued when Claimant was dismissed from the services of the defendants on the 8th day of September, 2019 vide the letter of dismissal. Claimant was issued query and suspended in the month of July, 2019. However, his dismissal which he is specifically challenging in this case and which act completes the cause of action happened in September, 2019. The defendants vide paragraph 24 of their statement of defence averred that Claimant received the letter of dismissal on the 11th day October, 2019 as seen in the endorsement register which is here as Exhibit R10. I have perused the said Exhibit R10 and I find that truly Claimant acknowledged receipt of the said letter of dismissal on 11/10/19 and signed for same which Exhibit has not been impugned by Claimant in this case. As such it is clear that Claimant became aware of his dismissal on the 11th day of October,2019. Accordingly, Claimant’s cause of action became complete on 11th day of October, 2019 when he became aware that he has been dismissed and that was when he can start challenging his dismissal. In fact, the Supreme Court in the case of Nweke v. UNIZIK Awka [2017]18NWLR (Pt 1598)454@483-484, Paras F-C, held that when POPA is raised in a situation where the employee was first suspended before the employment is terminated, the three months period within which the employee is expected to institute the action does not start when the suspension took effect but when termination was commenced or when employee was notified of his termination. Thus, the assertion of learned defence counsel that Claimant’s cause of action arose in July 2019 (which was when he was suspended) is misconceived as the Claimant’s cause of action arose on the 11th day of October, 2019 when he became aware of the dismissal. In view of all reasoned supra, I find that Claimant’s cause of action arose on the 11th day of October, 2019. I so hold.

 

31. Be that as it may, parties in this case have equally contended on the applicability of the POPA to this case being one that concerns Public officers in the State. A careful perusal of the submission of counsel in this case will show that parties in this case are ad idem as to the status of the defendants as public officers and that POPA operates to bar a person who ordinarily has a right of action from filing it after the three months window. The pertinent question to be answered at this stage, in my considered view is whether the POPA, applies to protect public officers of a State, specifically, Kogi State. Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereinafter referred to as ‘the Constitution’ the Legislature is the arm of government saddled with the responsibility of making laws. The National and State Assemblies make up the Legislature, while the National Assembly is the law-making body at the Federal level, the State House of Assembly is the law-making body at the State level. The National Assembly has exclusive preserve with regards to matters in the Exclusive Legislative List. The House of Assembly of the State has exclusive preserve over matters in the Residual list while both have competence over matters contained in the concurrent list. The Exclusive Legislative List is contained in Part I of the Second Schedule to the Constitution. Item 53 in the Exclusive Legislative List which is the exclusive preserve of the National Assembly is “Public service of the Federation including the settlement of disputes between the Federation and officers of such service.” The Public service of the State is part of the Residual list that is matters neither in the Exclusive legislative list or the concurrent list. The legislative competence of the National Assembly is only as regard the Public Service of the Federation being matter contained in the Exclusive legislative list. The legislature of each of the States of the Federation including Kogi State has the responsibility to enact appropriate legislations to regulate its public service. Thus, any Act enacted by the National Assembly for the Public Service of the Federation cannot apply to the Public service of the State. I am mindful of the doctrine of covering the field which will make a Federal law applicable to the State in applicable circumstances. However, it should be noted that the operation of the doctrine of covering the field applies where there are two conflicting legislations, one by the Federal Legislature and the other by a State Legislature with respect to a matter in respect of which both are competent and in which case the Federal Legislation would be applied as having covered the field and the State legislation would be invalidated. See the case of AG Lagos State v. Eko Hotels Ltd & Anor [2017]LPELR-43713(SC). Thus, the doctrine will not apply in this case to make POPA applicable to the public service of the State.

 

32. In essence, the POPA which is an enactment of the National Assembly for the Public Service of the Federation which is within its exclusive preserve cannot apply to the Public Service of the State and in particular, Kogi State. Thus, officers of the Public service of Kogi State and in particular, the defendants cannot take shelter under POPA. This position was captured by Eko JSC (Rtd) in the cases of CIL Risk & Asset Mgt Ltd v. Ekiti State Govt,supra thus; “The Respondents appear to me to have taken shelter under Section 2 (a) of the Public Officers Protection Act, Cap P41, 2004 LFN (updated up to the 31st day of December, 2010). This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies only to protect public officers in the "public service of the Federation". It has no general application such as to apply or offer protection to public officers in the service of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of Ekiti State is a matter within the residual list, that is matter neither in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution nor in the Concurrent Legislative List set out in the First Column of the Second Schedule to the Constitution. The public service of Ekiti State, being a residual matter, only the Ekiti State House of Assembly, by dint of Section 4(6) & (7) of the Constitution, 1999, as amended, to the exclusion of the National Assembly or any other State House of Assembly, can constitutionally legislate on it. This basic Constitutional Law eluded the Respondents and the two Courts below. The resort to the Federal statute, the Public officers Protection Act, to scrounge a statutory defence for officers in Ekiti State public service is no doubt ultra vires. [Emphasis mine]. See also the case of Eze v. ESBS & Ors [2020]LPELR-50628(CA)1@8-12, Para F. It is thus clear as reasoned earlier that POPA cannot apply to govern public officers in States, specifically Kogi State in this instance.

 

33. I am mindful of the submissions of learned counsel on behalf of the defendants in paragraph 2.5 of his reply on points of law to Claimant’s written address in opposition to the objection that this Court should discountenance the case of CIL Risk & Asset Mgt Ltd v. Ekiti State Govt, supra as it is distinguishable from this case as it is not on all fours with the case at hand. I disagree with that submission learned counsel in that just like in this case one of the things that came before the apex Court in that case is whether POPA is applicable to public officers in States and in particular Ekiti State and the decision of the Apex Court per Eko JSC( Rtd) is succinctly captured above. Thus, the ratio of the Supreme Court in that case is very well applicable to this case bothering on the applicability of POPA to Kogi State. That submission is thus, discountenanced. The only instance in which the POPA may apply to a State is if same has been adopted/domesticated by the State House of Assembly. See the case of Nassarawa State University & Anor v. Nekere [2018]LPELR-44550(CA)1@33-24, Para E. There is equally no evidence before this Court that the Kogi State House of Assembly which has the legislative power to make law for the public service of Kogi State has adopted the POPA as the state’s Public Officers protection law in which case it can be said to be applicable. It is therefore erroneous to apply the POPA to the case at hand and therefore in striking out the action instituted by the Claimant against the defendants who are public officers in Kogi State.  Therefore, the submissions of learned counsel on behalf of the defendants in his written address in support of the preliminary objection and reply on points of law to the written address of claimant in opposition that the defendants are qualified to take advantage of the protection provided by Section 2(a) of POPA is therefore discountenanced.

 

34. I have taken a keen note of the submission of learned counsel on behalf of the defendants in paragraph 2.1 of the Reply on points of law to Claimant’s written address in opposition to the preliminary objection that the Public Officers Protection Law of Kwara State Volume 3, Cap 135, 1994 (hereafter referred to as POPL, Kwara) is applicable to Kogi State. I have also read learned counsel’s submissions along that line that Section 2(a) of the POPL, Kwara State also covers the defendants who are public officers in Kogi State. I take judicial notice of the fact that Kogi State was carved out of the old Kwara and Benue States in the year 1991. Specifically, Kogi State was created out of portions of the old Eastern Kwara and old Western Benue. There is no evidence that the POPL, Kwara is applicable to the present day Kogi State as a whole. In my view, if at all the laws in existence in the old Kwara State before the creation of Kogi State would be applicable to Kogi State in the absence of any adoption by the House of Assemble of Kogi State, it will be applicable to those parts of the State that was carved out of old Kwara State while the other parts would be governed by the laws of the old Benue State. Kwara State law cannot be applicable to the whole of Kogi State except same has been adopted to be so by the Kogi State House of Assembly. Although, the 1st defendant is situate in Lokoja which was carved out of the old Kwara State, it must be noted that Lokoja does not have its own Public Service different from other parts of the State. In any case, what is being considered here is the Public service of Kogi State as a whole which is one indivisible whole and cannot be divided as to which law will apply. Any law that will apply to the Public service of Kogi State must have general application to the whole public service irrespective of where the office/institution is situated whether at the parts of the State created out of old Kwara or out of the parts created out of old Benue state. The Kogi State House of Assembly has not adopted the POPL, Kwara as its own law or made it applicable to the whole State. In view of all reasoned supra, I am unable to agree that POPL, Kwara applies in this case.

 

35. I do not also lose sight of the contention of the defendants in paragraph 1(c) of their statement of defence that the suit of the Claimant does not disclose a reasonable cause of action against the defendants. However, at no time did learned counsel address the Court on this point of law raised in the statement of defence as to the suit of Claimant disclosing no reasonable cause of action. Assuming he even argued the issue, can it be said that Claimant’s action discloses no cause of action against the defendants? Claimant in this case averred that his dismissal by the Governing Council was not done in accordance with the 1st defendant’s laid down procedure. He equally averred that he was suspended by the Secretary to the State Government who to me is an officer of the 2nd defendant. I do not see how his case has not disclosed a cause of action against the defendants. In view of all reasoning above, I resolve issue one in favour of the Claimant.

 

36. Now to issue two, before going to the crux of this action, I wish to take the liberty to address some issues relating to certain judicial authority cited by learned counsel for the claimant in his final written address.  Learned counsel in paragraph 4.8 of the address cited the case of UAC v. MACFOY (even though a notorious case) without stating the citation of the said case. Learned counsel should know that he owes the Court a duty to cite authorities correctly if he wants the Court to consider same. Where the authorities are reported as in this instant, the name of the law report, the year, volume and the page must be cited by counsel. See the case of Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)1@22.

 

37. Let me also address the contention of learned counsel on behalf of the defendants in paragraph 4.8 of the final written address as to the admissibility of Exhibits S4, S8, S9, S10, S11, S12, S13, S14, S15, S16 and S17. Learned counsel had submitted that at the point of tendering these Exhibits he objected to their admissibility. It must however be borne in mind that what binds the Court and the parties in a case is the Courts record. See the following cases; Sanusi v. Aminu [2017] LPELR-44604(CA)1@8, Para A and; Leaders of Company Ltd & Anor v. Bamaiyi [2010] LPELR-1771(SC)1@6, Para D.  It is on record of this Court that learned counsel on behalf of the defendants did not object to any of the documents whether on ground of admissibility or any other ground. In fact, all the documents tendered and admitted through Claimant were all admitted without objection from learned counsel on behalf of the defendants. Thus, it is not true that learned counsel objected to the documents at the point they were being tendered. Be that as it may, the best time to object to the admissibility of a document is when it is being tendered, failure of which the Court will treat the documents as admitted except the document is such of a nature that it is not admissible in law. See the following cases; Etuk-Udo v. State [2020]LPELR-49164(CA)1@12-13, Para A; Gefesco Enterprises (Nig) Ltd v. Uyasco Tech Co. Ltd [2019]LPELR-49020(CA)1@15, Para A and; Nwoye v. FAAN [2019]LPELR-46402(SC)1@22-24, Para C. Thus, it is the duty of the Court to act only on legally admissible evidence whether the other party objects or not. Where the adverse party who is supposed to object fails so to do, the Court is empowered to reject such evidence ex proprio motu. See the following cases; Benjamin v. Kalio [2018]15NWLR (Pt 1641)38@52, Paras B-C; Shittu v. Fashawe [2005]14NWLR (Pt 946)671 and; Daggash v. Bulama [2004]14NWLR (Pt 892)144@228, Para G. However, where the Court inadvertently admits inadmissible evidence, the Court must at the stage of judgment treat same as if it has never been admitted. That is same must be expunged from its record. See the following cases; Ikezuagu v. Okonta [2017]LPELR-42788(CA)1@23, Para B; Agboola v. State [2013]LPELR-20652(SC)1@47-48, Para D; Suberu v. State [2010]LPELR-3120(SC)1@17-18, Para G and; Abubakar & Anor v. Joseph & Anor [2008]LPELR-48(SC)1@17-18, Para G. The defendants are not challenging those documents on the ground of authenticity or inexistence of same but on the ground that they were not certified as photocopies of public documents in line with the Evidence Act. It should be noted that Section 12 of the National Industrial Court Act,2006 (hereafter referred to as NICA) enjoins this Court to apply the Evidence Act but in appropriate circumstances depart from its provisions in the interest of justice and which provision was affirmed by the appellate Court in the recent decision of the Court of Appeal Ilorin Division in Mr Victor Adegboye v. United Bank for Africa unreported Appeal No CA/IL/20/2021 which judgment was delivered on the 14th day of April, 2022. Accordingly, this Court can depart from the Evidence Act and treat such documents as admitted notwithstanding that they were not certified especially in this case where the defendants are not challenging their authenticity or existence. Hence, those documents are not inadmissible and as such the Court is entitled to rely on them as reasoned supra. In view of all the above and all reasoned earlier, this Court discountenances the objection of learned counsel in his final written address to the admissibility of the above listed Exhibits. I so find and hold.

 

38. Now to the main dispute in this case, it is the contention of the claimant his the dismissal from employment was unlawful as the laid down procedure guiding his employment were not adhered to. It is the duty of an employee alleging wrongful/unlawful termination or dismissal of employment to sate the provision that has not been complied with in the course of the discipline. Thus, the onus is usually on such an employee to prove wrongful/unlawful termination or dismissal. See Yahaya v. FRSC [2020] LPELR-52332(CA)1@26, Para A; Onwusukwu v. Civil Service Commission [2020]10NWLR (Pt 1731)179; Ziideeh v. R.S.C.S.C, supra. Claimant in this case maintained that the termination of his appointment was in contravention of the Public Service rules and the 1st defendant revised Conditions and Scheme of service and that his dismissal did not follow the disciplinary procedure of the 1st defendant laid down in Chapter 8 of the Schemes of Service. See paragraphs 13 and 14 of the statement of facts. Claimant in this case tendered the said Scheme of Service as Exhibit R11 through DW. Item 5 in paragraph 5 of Exhibit S (Claimant’s appointment letter) clearly states that the official conduct of Claimant shall be governed by the Polytechnic’s Conditions of Service, the Public service and as may be determined from time to time by the Governing Council. There is therefore no doubt as contended by Claimant that both Exhibit R11 and the Public Service Rules govern his employment.

 

39. The defendants averred vide their statement of defence that in accordance with the Provisions of the 1st defendant’s Revised Conditions and Schemes of Service (Exhibit R11) a Committee was set up to try Claimant. Claimant in response vide his Reply to the joint statement of defence averred that his dismissal was not in line with the 1st defendant’s scheme of service and that the Governing Council did not initiate or transfer his case to a sub-committee of Council which is the Appointments, Promotion and Disciplinary Committee. He also averred that he was not given query by the Council or an opportunity to be heard before the dismissal. Claimant as stated supra maintained that his dismissal was in contravention of the disciplinary procedure in Chapter 8 of Exhibit R11. It is expedient for me at this stage to consider the provisions of Chapter 8 which Claimant is claiming was breached. It is well settled that in the interpretation of document the Court must give the words used their plain and ordinary meaning. I have perused the whole of Exhibit R11 with more emphasis on Chapter 8 of the said Exhibit dealing with discipline. It is clear from Chapter 8 that Misconduct is different from gross misconduct. Regulation 8.1 defines Misconduct and Gross Misconduct thus;

(a) MISCONDUCT

Misconduct is defined as a specific act of a very serious wrong doing. It includes but is not limited to drunkenness, foul language, insubordination and negligence of duty, etc.

 

(b) GROSS MISCONDUCT

This is defined as a specific act of serious wrongdoing. It includes but is not limited to willful act or omission detrimental to the institution’s discipline and proper administration e.g corruption, dishonesty, fraud, falsification or suppression of information or record, destruction of records, conviction for criminal offence (other than traffic and sanitary absence or the like), absence from duty without leave or permission, examination malpractice/misconduct, student victimization, and disobedience of lawful order, bribery, embezzlement.

 

It is clear from the above that different acts will constitute misconduct and gross misconduct under Exhibit R11. The question that should be asked at this stage is if the act Claimant was alleged to have committed amount to misconduct or gross misconduct. It is cardinal principle of our law that document speak for itself and cannot speak through the testimony of witnesses or read into a document what is not therein contained. See the case of Ikemefunah & Ors v. Ilondior & Ors [2018] LPELR-44840 CA. The query Exhibit S6 (also R4) given to Claimant specifically states that Claimant was alleged to have committed forgery and insubordination. Specifically, Claimant’s Exhibit S2 (letter of dismissal) states that Claimant was dismissed for making unauthorized communication to the Governor of Kogi State and aiding and abetting forgery. Making an unauthorized communication is no doubt an act within the confines of insubordination in official relations while aiding and abetting forgery is within the confines of falsification. From Regulation 8.1 reproduced above while insubordination is an act of misconduct, falsification is an act of gross misconduct. It is thus clear that the acts alleged to have been committed by Claimant and for which he was dismissed constitute misconduct and gross misconduct. The disciplinary measures for misconduct and serious/gross Misconduct is contained in Regulation 8.3 of Chapter 8 and it ranges from Verbal or written warning; Withholding or deferring increment; Reduction in rank; Interdiction; Suspension without pay and or removal from office; Termination; Dismissal; Legal action. As rightly submitted by learned counsel on behalf of the defendants in his final written address, any of the above measures may be taken and learned counsel on behalf of the Claimant in his final written misconceived the import of the Regulation when he maintained that verbal warning is the first step to be taken in the discipline of a staff. Verbal warning is not the first step to take in the discipline of a staff of the 1st defendant, it is an entire disciplinary measure on its own.

40. The provisions of Regulation 8.5 of Chapter 8 is clear as regards the procedure for removal from office (which in my view may be by way of termination or dismissal). It is worthy of note that the said Exhibit R11 was made on the Council’s approval on the 8th day of September, 2017. It is equally clear from the contents of the said Exhibit R11 that it was made pursuant to the Kogi State Polytechnic, Edict No 6 of 1994 (hereafter referred to as the old law).  Both parties in this case placed reliance on Exhibit R11 as to the procedure for dismissal and argued along that line. The old law had originally established the 1st defendant. See Section 3 of the old law. I am mindful of the fact that none of the parties in this case referred to the extant law which is “Law to Repeal and Reenact the Law Establishing Kogi State Polytechnic, Lokoja and other matters connected therewith, 2018” (hereafter called the extant law). The extant law is very important in this case as it was already in force when Claimant’s was dismissed and it contains the procedure for removal of staff of the 1st defendant different from the one in Exhibit R11. This Court is empowered to take judicial notice of laws in relation to a subject of dispute before it, even where parties ignore or failed to avert their mind to same without the need to call on parties to address it on the said law. I am further empowered by the recent decision of the Supreme Court delivered on the 4th day of March, 2022 reported as Jaiyesimi v. Darlington [2022]7NWLR (Pt 1835)335@359, Paras C-F wherein the apex Court held that by the provisions of Section 73 of the Evidence Act, the need to give parties a hearing when Court raises an issue suo motu would not be necessary  if; (a) the issue relates to Court’s own jurisdiction; (b) both parties are/were not aware or ignored a statute which may have bearing on the case, that is to say, where the Court is supposed to take judicial notice of a statutory provision and; (c) when on the face of the record, serious questions of fairness of the proceedings are evident. The extant law no doubt contains the procedure for removal which is a bit different from the procedure contained in Exhibit R11. It is the view of this Court that since the extant law has repealed the law under which Exhibit R11 was made and makes specific procedure for removal of staff of the category of Claimant for misconduct, the extant law takes precedence over Exhibit R11 and even the Public Service Rules which was also pleaded by Claimant in respect of the procedure to be followed for removal for misconduct. I so find and hold. 

 

41. Section 27(1) of the extant law makes copious provisions for the procedure to be followed where it appears to the Council that any confirmed member of the academic or senior administrative or technical staff of the Polytechnic should be removed from office or employment on ground of misconduct, failure or inability to perform the function of his office or employment, the Council shall take the following steps;

                        a). give notice to the person concerned specifying the reasons therefore;

b). make arrangements for an investigating committee to investigate and report the matter;

(c) afford the person concerned an opportunity of making representation in person on the matter before the investigation committee; and if the Council, after considering the report of the Committee is satisfied that the person concerned should be removed, it shall remove him by an instrument in writing signed by the Registrar on the directions of the Council in the following circumstances, that is;

i. if a resolution is passed at a special meeting convened for the purpose of which thirty clear  days’ notice to remove the person is clearly set out;

ii where no less than nine members are present in person and the said resolution is passed by at least two-thirds majority of those members present and voting.

42. The extant law goes further in subsection 2 of the said Section to provide for the procedure for suspension. It provides that the Chairman on behalf of the Council shall at any stage of the proceedings have power to suspend from office until the investigation is completed and decision taken, any member of the staff of the Polytechnic whose conduct is being investigated. Subsection 3 provides that other category of staff shall for the purpose of the discipline be subject to the authority of a Committee appointed by the Rector, so however that no member of such staff (except members who are unconfirmed staff) shall be removed from office without the approval of the Council.  Subsection 4 provides that the Rector shall in the exercise of his authority under the Section have power to appoint, in any case where he considers it appropriate to do an investigating/disciplinary panel made up of such members of the staff for the purpose of advising him on any matter relating to discipline. It is trite that in the interpretation of clear and unambiguous statutory provisions, the words used are to be given their clear and ordinary meanings. See the following cases; Oloja v. Gov. Benue State [2022]3NWLR (Pt 1816)1@24,Paras C-E; N.U.P. v. I.N.E.C [2021]17 NWLR (Pt 1805)305@342, Paras F-H; Bayero v. Agundi [2021]16NWLR (Pt 1802)347@371, Paras D-E and; Abegunde v. O.S.H.A.[2015]8NWLR (Pt 1461)314@353, Paras D-F, 364, Paras E-H. The operative word in that Section is ‘shall’ which connotes compulsion. Claimant in this case at the material time before his dismissal was the Assistant Registrar. See paragraph 7 of the statement of facts and paragraph 4 of the statement of defence. This in my view qualifies him as Senior Administrative staff to whom the above procedure in Section 27 (1) of the extant law applies. It is clear from the provisions of Section 27 (1) of the extant law that it must first appear to the Council that a person is to be removed from his office on the ground of misconduct the notice of the reasons is given to such person by the Council. In fact, both Exhibit R11 which parties in this case placed reliance on and the extant law make provision for the Council to give notice to the person of the reasons for his removal from office which step was not done by the defendants in this case. There is nothing before the Court to show that Claimant was given notice by the Council of the reason for which it is proposed to remove him from Office as envisaged by that Section.  Exhibit S6 which is the query given by the Registrar would in my view not qualify as the notice that is to be given by the Council. There is nothing in the said Exhibit S6 that suggests that the Registrar is giving such query on the directive of the Council. Exhibit S6 would have qualified as the notice if it is stated in it that it was issued on the directive of the Council which has the power to issue the notice. Assuming it was issued on the directive of the Council since the Registrar signed same as the Registrar and in his capacity as the Secretary of the Council, I am of the view that the query does not qualify as the notice which is envisaged under the said Section. The notice is to be given by the Council of the reasons proposed to remove a person if it appears to the Council that a person should be removed from his office. It is clear that Exhibit S6 is merely a query given to Claimant by his superior (the Registrar) accusing Claimant of a wrongdoing and requesting him to make representations explaining why disciplinary actions should not be taken against him.

 

43.  The next step is for the Council to make an arrangement for a Committee before whom the affected officer would be allowed to make representation. I am mindful of the fact that Claimant appeared before a Committee as seen in Exhibit R8. Section 27 (1) (b) clearly provides that the Council shall make an arrangement for a Committee to investigate the matter and report to it. In fact Exhibit H9 which is the minutes of the meeting of Council states specifically on page 11 item 61.8.3 that the Committee is the “Management Committee  set up to investigate the matter. Also, in Exhibit R7 which is the report of the said Committee it is stated thus on page 12;

1.7 APPRECIATION

The Committee wishes to thank the Rector and members of the management for giving us the privilege to serve in this capacity. We wish to pledge our availability when again our humble services are required

It is thus clear beyond doubt that it was the Rector and the members of the Management that set up the Committee and made the arrangement for the Committee that investigated the Claimant and not the Council to whom the power was donated in the extant law. There is nothing before the Court to show that it was the Council that asked the Rector to make such arrangement.  In fact, Section 27(3) is clear to the effect that the Rector shall only have power to set up an investigating Committee under that Section in respect of other categories of staff. That is staff who are not academic, senior administrative or technical staff.  The law is thus clear as to who has the power to constitute a committee in respect of different category of staff. The Council is the authority/body empowered under the law to make an arrangement for an investigating Committee in respect of the category of Claimant. The law is of common that, if an enactment bestows on a particular person or authority the power to do a specific duty, it is only that person or authority, and none other, that can perform the assignment before it will receive the imprimatur of the law. See Section 10(1) of the interpretation Act, Laws of the Federation of Nigeria, LFN 2004 and these cases; Kwara State Polytechnic Ilorin & IR v. Saliu & Ors [2012] LPELR-9695(CA)1@68-69, Para C; Kwara State Polytechnic Ilorin & Anor v. Shitu [2012] LPELR-9843(CA)1@67-68, Paras D-D; Balonwu v. Gov. Anambra State [2008] 16 NWLR (Pt. 1113) 236 and; UBN v. Ayodare & Sons (Nig) Ltd. [2007] 13 NWLR (Pt. 1052)567. The notice envisaged under Section 27(1) of the extant law is to be given by the Council to the affected staff and no other. The Rector/ Management of the 1st defendant therefore cannot make an arrangement for a Committee where the staff is not of the category of staff in respect of which it has power to constitute a Committee. Claimant is a Senior administrative staff, the Rector or the Management does not have the power under the law to make such arrangement as it did for a Committee to investigate the allegations against Claimant.

44. Section 27(1)(c) of the extant law is clear as to the mode to be adopted by the Council in making its decision on the removal of the affected staff. It provides that if the Council after consideration of the report of the Committee that investigated the matter is satisfied that such affected officer should be removed, it shall remove him by an instrument in writing signed by the Registrar on the directions of the Council in the circumstance that a resolution is passed at a special meeting convened for the purpose of which thirty clear  days’ notice to remove the person is clearly set out, where no less than nine members are present in person and the said resolution is passed by at least two-thirds majority of those members present and voting. There is no evidence before this Court that the above procedure was followed before the Registrar signed the instrument for Claimant’s removal. I say so in view of the fact that no such procedure is shown to have been followed upon a perusal of Exhibit R9 which is the minutes of meeting where decision to dismiss Claimant was taken by the Council. See page 11 of the said Exhibit R9. I thus find that the Council of the 1st defendant has in reaching its decision failed to comply with the provisions of the extant law.

 

45. It is equally clear from the provisions of Section 27(2) that it is the Chairman of the Council that has the power to suspend. It is equally clear from the said Regulation 8.6 that suspension for gross misconduct shall be without pay. Claimant was suspended vide Exhibit S5. The suspension was done by the Secretary to the State Government (SSG) who had no such powers under the provisions of Section 27 of the extant law. Besides, the 1st defendant is an independent body with its own Governing Council which is the body endowed with the power to appoint and discipline under the extant law. The SSG cannot usurp the power of the Council to suspend Claimant. The suspension of Claimant by the SSG is therefore in breach of the clear provisions of the law. In view of all the reasoning of this Court above, I find that the defendants in their bid to sack the claimant were hasty in doing away with his services and thereby closed their eyes to the clear and extant procedure for discipline of its staff as enunciated by Section 27 of the extant law and thereby breached the claimant’s statutory terms of employment. The letter of suspension is hereby set aside. I so find and hold.

 

46. Claimant in this case contended that his letter of dismissal was hurriedly made having been dated before the meeting of the Council on the 4th day of October, 2019. The defendants on their part maintained that the letter of dismissal was made on the day the Council sat which was 4th October and that the date on the said letter was a clerical error which fact was equally reiterated by DW in his written statement on oath. See paragraph 23 of the statement of defence and DW statement on oath. It is plain on the said Exhibit S2 that while communication of the decision of the Council to dismiss Claimant was made on 4th October, 2019, the letter itself is dated 8th September, 2019. The law is ensconced that where a party fails to cross-examine a witness on a material point, he would be deemed to have accepted the truth of that witness’s testimony. See Gambo v. Isa & Anor [2018] LPELR-45984(CA)1@18-19, Para E and; Haruna v. Abuja Investment Property Development Co. & Ors  [2016]LPELR-41160(CA)1@11, Para B. DW was not cross examined by Claimant on his assertion that the date was a clerical error which point. Claimant would be deemed to have accepted the testimony of DW on the said issue as true.  As such, this Court also accepts the fact that the date on the said letter contrary to the assertion of Claimant was a typographical error. I so find and hold.

 

47. It is trite principle of law that an employer where he gives reason for termination/dismissal must prove such reason to the satisfaction of the Court. Claimant in this case as reasoned supra was dismissed for making unauthorized communication to the Governor of Kogi State and aiding and abetting forgery. According to the defendants in their joint statement of defence, Claimant wrote an unauthorized letter to the Governor of Kogi State concerning the certificate of one Ademu Yahaya for which he was queried by the Registrar. Claimant in response vide paragraph 4 of the Reply averred that he was not queried on the letter dated 9th May, 2019 but that it was the former Registrar that forged his signature and attached a forged certificate different from the one issued to one Ademu Yahaya to frame him up and he pleaded the actual letter he wrote dated 15th May 2018 and a copy of the authentic certificate. The defendant equally averred that a Committee was set up to investigate Claimant and Claimant admitted the allegation before the Committee constituted to investigate the allegations. Claimant in response vide paragraph 9 of the Reply averred that it is not true that he admitted the allegation of forgery and insubordination. It is clear from the facts and circumstances of this case that Claimant is saying that he was not queried on the letter dated 9/5/2019 which is herein as Exhibit R3 and that he was not the one who wrote the said letter that his signature was forged but that he is the one who wrote letter dated 18th May, 2018. A perusal of Exhibit S6 the query shows that truly as alleged by Claimant what he was queried for is not letter dated 9th May, 2019 (i.e Exhibit R3) but a letter dated 18th May 2018 herein as Exhibit S14. This fact was equally admitted under cross examination by DW on the 17th day of March, 2022 when he answered that Claimant was never queried in respect of the letter dated 9/5/2019 (Exhibit R3). It then means that Exhibit R3 which is the letter dated 9th May, 2019 in respect of which Claimant was not queried is of no evidential value to this case as it is not the letter which forms the basis of the allegation against Claimant. I so hold.

 

48. Claimant in this case has maintained vide his pleadings that he had the instructions to write Exhibit S14 which was the letter this Court has found that he was queried on earlier. I have perused Exhibit R7 and R8 which are the report and the minutes of the meeting of the Committee respectively and I find therein that Claimant specifically in Exhibit R8 at page 3 of the said Exhibit stated at the Committee that he had verbal permission to write the letter and when he was asked who gave him the permission to write the letter he mentioned one Mr Rajih I.Z who when he was questioned if he gave Claimant permission denied giving Claimant such permission. Equally at page 4 of the said Exhibit R8 when Claimant was asked where he got the letter head used to write the letter he stated that he took permission and stated also that he obtained verbal instructions but could not state through-out who gave him the verbal instructions to use the letter head. I am also mindful of the fact that Claimant answered as seen at page 5 of Exhibit R8 that he did not follow order and that he has no right to circulate any letter without the authority of the Registrar. He equally stated severally on the same page that he accepted his mistake when confronted with certain questions on the authority to write the latter. It is equally clear on Exhibit R5 which is Claimant’s response to the query in Exhibit S6 claimant admitted in its last paragraph that he did not inform the Registrar his boss. There is therefore no doubt that the defendants have been able to prove that Claimant wrote the letter to the Governor without due authority.

 

49. Again, Claimant in this case has maintained that he had instructions to write the letter which is the subject matter of controversy because he averred vide paragraph 2 of his Reply to statement of defence that all his official contacts and correspondence on behalf of the Polytechnic are with full instructions and consent of the Registrar. Let me state that it is the duty of Claimant who is asserting the positive that all his contacts and correspondence on behalf of the 1st defendant which includes the letter in question are with instructions of the Registrar of the 1st defendant to prove same. It is not for the defendants who are saying he had no such instructions to prove. See the following cases; Oni v. Ojogbogbo [2015]LPELR-41741(CA)1@20-21, Para A and; Onyemeh & Anor v. Iwueze & Anor [2013]LPELR-21879(CA)1@44-45, Para F. In fact he stated under cross examination on the 17th day of November, 2021 that he was authorized to do so. He however, through-out trial has not been able to say who gave him the said instructions. As such, Claimant who has this onus failed to prove he has the authority and consent of the Registrar to write the said letter which failure is fatal.

 

50. Also, Claimant’s evidence in paragraph 2 of his additional statement on oath that all his official correspondence on behalf of the 1st defendant is always on the instructions and consent of the Registrar seem to contradict his reply to the query in Exhibit R5 wherein he admitted his indebtedness for not informing the Registrar his superior before he wrote the letter to the Governor. He also answered during cross examination that when a file is minuted to him, a dispatch clerk will bring it to him and he will attend to it and return to his superior but some will be dealt with appropriately. It is thus clear that before a file gets to Claimant to treat it must be from his superior as Claimant cannot treat a file without it being sent to him by his superior. There is no evidence in this case that the said Yahaya Ademu’s file whose certificate Claimant wrote the Head of Service and Governor in respect of was sent to him by his superior. It is obvious Claimant on his own decided to write the letter without the file of Ademu being forwarded to him for appropriate actions. This is clearly an act of insubordination and a clear case of misconduct.

 

51. The defendants however have not been able to prove their allegation of abetting forgery against Claimant. I say so in view of the fact there is no evidence before this Court to show that it was Claimant that issued the said Yahaya Ademu with the said fake certificate. There is equally no evidence before this Court to show that Claimant did anything other than writing the said unauthorized letter. Claimant specifically stated on page 3 of Exhibit R8, the minutes of the meeting of the Committee that he collected the first certificate (which has been stated therein to be fake) from the owner of the result (that is Yahaya Ademu).  He equally said on page 7 that he knew the said Yahaya Ademu when he came to complain to him that the certificate they gave him is fake which evidence is the same with that of the Yahaya Ademu on the same page 7 wherein he equally reiterated that he knew Claimant the day he came to complain that the certificate given to him is fake. Even Raji Z.I who is the keeper of the Register of certificate stated on page 8 of Exhibit R8 that he has not delegated any function to Claimant but knows that his brother Ademu Yahaya who introduced him gave the fake result to Claimant. In fact, the said Ademu Yahaya while appearing before the Committee stated on page 7 of Exhibit R8 that he got the first fake certificate from Registrar’s office in 2012 and in respect of which the Committee told him that if truly he collected it from the Registrar’s office it cannot be fake unless he got it from a wrong source. It is thus clear that Claimant had nothing to do with the forgery and was only given the forged certificate by the said Yahaya Ademu. Besides Claimant has testified vide paragraph 4 of his additional statement on oath that he did not write the letter of 9th May, 2019 Exhibit R3 which was used to forward the said fake certificate but what he wrote is the letter dated 15th May, 2018 and which testimony was not challenged under cross examination by the defendants.

 

52. More so, the allegation of forgery against Claimant in the statement of defence which is one of the major infractions on which the defendants based their pleading is an allegation of crime which ought to be proved beyond reasonable doubt. See the following cases; Taylek Drugs Co Ltd v. Onankpa [2018] LPELR-45882 (CA)1@ 35-36, Para D and; Bico Nig Ltd &Anor v. Electronic Connections Ltd [2016] LPELR-41318 (CA)1@ 22-23, Para. F. The defendants in this case have not been able to satisfy the standard of proof required for forgery which is proof beyond reasonable doubt. In view of all stated earlier, I find that while the defendants have been able to prove the allegation of writing letter to the Executive Governor without authorization, they have not been able to prove beyond reasonable doubt the allegation of forgery in their pleadings or abetting forgery which is contained in the letter of dismissal.

 

53. I do not lose sight of Claimant’s averment in his Reply as stated above that his signature on Exhibit R3, the letter dated 9th May, 2019 was forged by the former Registrar. Forgery is no doubt an allegation of crime. The law is firmly settled that allegation of crime in pleadings must be specifically pleaded and established beyond reasonable doubt. See the case of Taylek Drugs Co Ltd v. Onankpa, supra. Claimant who is alleging that his signature on Exhibit R3 was forged has to specifically plead the alleged forgery by giving particulars of the forgery and prove the alleged forgery beyond reasonable doubt. However, Claimant failed to do these. The failure however may not be fatal to his case because of the doctrine of severance of pleadings. By the said doctrine, where a Claimant makes an allegation of crime in his pleadings, but nonetheless can succeed in his claim without proving the crime, the alleged crime would not be in issue and the burden on such Claimant would be to prove his case on the balance of probability. See the following cases; Anyanwu v. PDP [2020] 3 NWLR (Pt 1710)134@168-169, Paras E-A, G(SC); Udom v. Umana (No 1) [2016]12 NWLR (Pt 1526)179@218-219, Paras G-A (SC); Amico Constr Co Ltd v. Actec Intl Ltd [2015] 17 NWLR (Pt 1487)146@186-187, Paras H-A; Abdullahi v. Gov., Kano State [2014]16 NWLR (Pt 1433)213 and; A.S.ES.A v. Ekwenem [2009]13 NWLR (Pt 1158) 410. The allegation of forgery in the Claimant pleadings above is not the main thing on which Claimant is hinging his claim. If severed, the Claimant can still succeed on other averments in his pleadings. Thus, failure to prove the forgery beyond reasonable doubt is not fatal to the case of Claimant. In any case, the said Exhibit R3 wherein Claimant stated that his signature was forged is even of no evidential value in this case as reasoned above.

 

54. In the case of Olufeagba v. Abdul-Raheem [2009]18 NWLR (Pt 1173)384@463-464, Paras H-A, the apex Court held that in an employment with statutory flavor as in this present, the reason for termination of employment is very crucial to the case of both parties and the reason must be ascertainable and must be in accordance with the letter of appointment and governing regulations and statutory provisions. Although the defendants have been able to prove the reason given, they have however been shown as reasoned above not to have complied with the procedure for the dismissal of the Claimant as provided under the extant law. It is plain on the record of this Court that the employment relationship between the claimant and the defendants is one with a statutory flavor. More so, it is clear from the extant law that the employment of Claimant is vested with statutory flavor because the procedure for appointment and removal is expressly provided in the extant law.

 

55. However, the point must be made that an employment with statutory flavor does not give an employee the right to misconduct himself. See the decision of the Supreme Court in Avre v. NIPOST [2020]8NWLR (Pt. 1727)403. Where an employee commits a misconduct, he would not be protected by the statute and as such is liable to be dismissed by the employer. The only rider is that the employer in exercising his right to dismiss an employee who has committed a misconduct must comply strictly with the provisions of the statute. The fact that an employee has misconducted himself and thus liable to dismissal does not give the employer the right to also flout the strict provisions of the law as the law must be obeyed. Although Claimant in this case as reasoned supra is liable for insubordination and indiscipline by writing a letter of that magnitude to the Governor without the knowledge of his superior the Registrar and without due authority, the Governing Council of the 1st defendant in exercising its right under the extant law to discipline Claimant must nonetheless comply with the provisions of the law which governs the relationship. The defendants have failed to comply strictly with the provisions of the extant law in dismissing Claimant as reasoned supra. It is settled law that in the termination/dismissal of employment with statutory flavor as in this instant, the employer must comply with the procedure laid down for such termination or dismissal, failure of which the dismissal would be declared unlawful. See the cases of; Kwara State Judicial Service Commission & Anor v. Tolani [2019]7NWLR (Pt 1671)382; Oni v. Gov., Ekiti State [2019]5 NWLR (Pt 1664) 1@20, Paras G-H; Iderima v. R.S.C.S.C. [2005]16 NWLR (Pt.951)378@ 388, Paras D-F and; Balogun v. University of Abuja, [2002] 13 NWLR (Pt 783)42. It is in consequence of all the reasoning above that I find the dismissal of Claimant unlawful. Accordingly, Claimant’s relief ‘a’ succeeds.

 

56. Claimant in his relief ‘b’ seeks an order of this Court reinstating him while he seeks a declaration that he is entitled to payment of his arrears of salary since September, 2019. I have set aside Claimant’s suspension without pay vide Exhibit S5. It therefore means that Claimant was not suspended at all and is entitled be paid from September, 2019 to when he was dismissed. This Court has equally declared that his dismissal is unlawful. In the case of KJSC v. Tolani, supra @ 404, Paras C-E, the apex Court held that where an employee’s service is protected by statute and it is wrongfully terminated or withdrawn, he would be entitled to reinstatement. See also the following cases; Alhassan v. A.B.U, Zaria, supra also reported as [2011]11NWLR (Pt 1259)417 and; Omidiora v. F.C.S.C. [2007]14NWLR (Pt 1053)17. I therefore find and hold that Relief ‘b’ succeeds.

 

57. Claimant vide relief C, claims the sum of N1,856,906 as his arrears of salaries from September 2019 to December 2020 when this suit was filed and he equally claims for arrears of salary till reinstatement. It is equally firmly settled that upon reinstatement, the claimant is entitled to be paid all his arrears of salaries including fringe benefits up to the time of reinstatement and he needs not prove any special circumstance to be entitled to same. See the case of Ekeagwu v. Nigerian Army [2010]16NWLR (Pt. 1220)419@429-430, Paras F-A. It is only expedient for the Court in the circumstance of this case to grant the consequential order of payment of arrears of salaries sought. I have also set aside Claimant’s suspension without pay. It is thus clear that Claimant is entitled to be paid from September 2019. Claimant in this case did not plead his monthly salary though he averred vide paragraph 12 of his Reply to statement of defence that his annual salary is N1,485,525. It is worthy of note that Claimant answered under cross examination when asked what his last salary was that his last salary before he was dismissed was N96,000. If Claimant’s answer under cross examination that his last salary is N96,000 is anything to go by, his annual salary would be N1,152,000 as against the sum of N1,485,525 pleaded in his reply as his annual salary. In the same vein, Claimant’s arrears of salaries from September 2019 till when this suit was filed will be N1, 536,000 as against the sum of N1,856,906 claimed in relief c. Thus, Claimant’s salary from September 2019 to December 2020 is N1,536,000. Relief C succeeds to the extent that Claimant is entitled to the sum of N1,536,000 as his arrears of salaries from September, 2019 till December, 2020 and is also entitled to arrears of salaries till reinstatement.

 

58. Claimant claims for the sum of N10,000,000 for the embarrassment and emotional trauma suffered by reason of his unlawful dismissal in relief ‘d’. The Court in the case of Ekeagwu v. Nigerian Army, supra held inter alia that in an action for unlawful termination or dismissal where claimant seeks relief of reinstatement which is granted, the issue of measure of damages for the unlawful/wrongful termination, dismissal or retirement becomes irrelevant because upon reinstatement the claimant is entitled to be paid his arrears of salary. This Court has in the preceding relief ‘C’ granted the order of claimant for reinstatement and payment of his arrears of salaries and other entitlements from the period of the unlawful dismissal till reinstatement. In my view, granting the relief for damages after the claimant’s relief for reinstatement and arrears of salary has been granted will amount to double compensation since Claimant would already be paid for those periods even though he did not work. The law frowns at double compensation for the same act of a party. See the following cases; Mtn (Nig) Communications Ltd v. C-Soka (Nig) Ltd [2018]LPELR-44423(CA)1@75, Para A and; Zenith Plastics Industry Ltd v. Samotech Ltd [2007]LPELR-8260(CA)1@34, Para A. Also, claimant has failed to canvass any evidence to show how his dismissal caused him embarrassment and emotional trauma. By merely stating that he suffered embarrassment and trauma without more cannot constitute prove of same. In view of the foregoing, I find that claimant’s relief ‘d’ fails.

 

59. Claimant vide relief ‘E’ claims for 10% post judgment interest. The law has become ensconced that post judgment interest may be awarded even where it was not pleaded because it is statutory and is at the discretion of the Court. See the cases of GTB Plc v. Obosi Microfinance Bank [2022] 4NWLR (Pt. 1821)455@523, Paras D-E, 524, Paras B-C; Rematon Services Ltd v. NEM Ins. Plc [2020]14NWLR (Pt 1744)281@304-305, Paras F-C and Ifemesia v. Ecobank [2018] LPELR-46589 (CA)1@60-61, Para A-A. In the case of African Prudential Registrars Plc v. Macaulay [2020]18NWLR (Pt 1755)1@31, Paras A-B, the Court held that for there to be a post judgment interest, there must at first be a monetary judgment sum on which the order for interest would be made until final liquidation. Claimant in this case has sought monetary claims which had been granted. The Rules of Court regulates the discretion of the Court by setting the rate or percentage at which such post judgment interest may be awarded. In the case of Bolanle v. Access Bank [2015] LPELR-40994(CA)1@26-28, Para B, the Court of Appeal while considering the power of the National Industrial Court as the trial Court in that case to award post judgment interest held that the power of a court to grant post judgment interest is statutory as it derives its root from the Rules of Court and the National Industrial Court as the trial Court in that case derives such power from the National Industrial Court Rules.  This Court is empowered by the provisions of Order 47 Rule 7 of the Rules of this Court to grant post judgment interest at a rate not less than 10% per annum. In exercise of my discretion under Order 47 Rule 7 of the Rules of this Court, I award post judgment interest at the rate of 10%.

 

60. For the avoidance of doubt and for the reasons earlier given, I declare and order as follows;

 

1.      That the dismissal of Claimant is unlawful for being in breach of the provisions of the extant law.

2.      Claimant is entitled to be reinstated forthwith.

3.      Claimant is entitled to N1,536,000 as his arrears of salaries from September, 2019 till December, 2020 when this suit was filed and is equally entitled to be paid all his arrears of salaries from January, 2021 till when he is reinstated.

4.      The judgment sum is to be complied with within 30 days failure of which it will attract 10% post judgment interest.

I make no order as to cost.

Judgment is accordingly entered.

 

 

                                                                        Hon. Justice Oyebiola O. Oyewumi

                                                                                    Presiding Judge