IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HONORABLE JUSTICE E.N.N. AGBAKOBA

 

SUIT NO: NICN ABJ/178/2021

 

BETWEEN

 

MOHAMMED ABATCHA NUHU               -                                                CLAIMANT

 

AND

 

CORPORATE AFFAIRS COMMISSION     -                                                DEFENDANT

 

 

Claimant via a General Form of Complaint, Statement of Facts and other frontloaded process dated 6th July 2021 and filed 2nd August 2021 commenced this suit against the Defendant seeking the Honorable Court for the following reliefs:

 

a.      A Declaration that the purported termination of the claimant’s employment by the Defendant is gross violation of his constitutionally guaranteed right to fair hearing thus null, void and unenforceable howsoever.

b.     An Order of this honorable court quashing the purported dismissal of the claimant as contained in the letter of termination dated 31 August 2020 having been done in strict violation of his constitutional right to fair hearing and contrary to his condition of service.

c.      A Declaration that the claimant was and is still a staff of the defendant by virtue of the letter of appointment dated 19th July2010.

d.     A Declaration that the purported dismissal of the claimant from service is wrongful, null, void, unenforceable whatsoever.

e.     An Order of this Honorable court compelling the defendant to reinstate the claimant with immediate effect.

f.       An Order of this Honorable court compelling the defendant to pay the claimant all his entitled salaries and arears.

g.      An Order of Fifteen Million Naira (15,000,000.00) against the defendant as general damages for Psychological stress and hardship suffered by the claimant for wrongful dismissal by the defendant.

 

In response to this suit commenced, the Defendant filed a Memorandum of Conditional Appearance, Statement of Defence and all frontloaded document dated and filed 8th October 2021 which was initially out of time, however by an application extending the time within which to file the processes the Defendant sought an extension of time. The Court granted the application and the processes were regularized.

Claimant did not file a Reply to the Defendant’s Statement of Defence. With these pleadings filed, parties joined issues.

 

Before proceeding, I will give a brief summary of the complaints of the Claimant and the defenses of the Defendant to the complaints.

 

CLAIMANT’S CASE

Claimant averred that virtue of a letter dated the 19th day of July 2010, a provisional employment was offered him and thus a staff of the Defendant. The Defendant vide a letter dated the 23rd day of November 2011 confirmed the appointment of the claimant by virtue of which all the rights and privileges that comes with the confirmation also accrued to the claimant. He worked with the Defendant until his employment was wrongfully terminated sometime in August 2020.

 

Claimant averred that sometime in 2020, he received a query with reference No. HR/2566 and dated the 18th day of February 2020 alleging that he has committed offences touting amongst others which is contrary to clause 2.09 of the Defendant’s condition of service. Of which the Claimant in a bid to prove his innocence wrote a response within the stipulated 24 hours emphasizing his innocence. The Defendant upon receipt of the Claimant’s response, summoned him to the Central Disciplinary Committee where he was partially heard and asked to leave. The Central disciplinary committee summoned witnesses whom allegedly testified against the Claimant and the Claimant was not allowed to be part of the proceedings not even to cross-examine the alleged witnesses that testified against him.

 

Claimant averred that while awaiting to be recalled by the Central disciplinary committee to come and properly present his case thus cross-examine any witness that in any case had testified against him, he received a letter dated the 31st day of August 2020, dismissing him from service with immediate effect. He immediately instructed Messrs A.M Saleh & Co to write on his behalf a pre-action notice to the defendant. The defendant ignored and refused till the date of filing this action to re-instate him despite the service of the pre-action notice on them.

 

DEFENDANT’S DEFENCE

On the other hand, the Defendant admitted that by a letter dated 19th July 2010, the Claimant was given an offer of appointment. And by paragraphs 2 and 6 of the aforesaid letter of 19th July 2010, the Defendant’s Condition of Service was incorporated into the Claimant’s Employment contract. And the Claimant’s Provisional Appointment with the Defendant was confirmed with effect from 1st August 2011.

Defendant admitted that the Claimant was summoned to the Central Disciplinary Committee and subsequently Claimant received a letter dated the 31st day of August 2021 dismissing the Claimant from service with immediate effect. Defendant denied that it did not reinstate the Claimant after he was dismissed and further denied ever receiving any valid pre-action notice from the Claimant.

 

Defendant stated that at its corporate head office at Maitama, Abuja an application from one of its accredited agents requested a certified true copy of the Return on Allotment Form of Transkredit Finance Company Limited.

 

Defendant averred that her officer detailed to treat the application called for the file from the Record Management Department where it ordinarily should be kept, but the file of Transkredit Finance Company Limited was not anywhere in the Record Management Department. After thoroughly searching for the file at the Defendant’s Head Office, the FCT State Office was then contacted to give account of the file since the registration was initiated, concluded and certificate along with certified true copies of registration documents were dispatched to the customer at the FCT State Office. Defendant averred that one Waziri Isa (Also Known As Aminu Isa Adam) who was at the relevant time a member of staff of the Registry Department at the FCT State Office and coincidentally the officer that approved the registration personally searched for the file and subsequently found it lying in a cabinet at the dispatch Unit of the FCT State Office. Waziri Isa observed that contrary to the 1,000,000.00 (one million naira) share capital he approved for the Company the share capital stated in the Company’s document he found shows N100,000,000.00 (One hundred million naira). He further observed that certain documents which were supposed to be in the file were missing.

 

Defendant averred that Waziri Isa reported the incident to the Zonal Head of FCT State Office who subsequently escalated the incident to the Security Unit of the Defendant for investigation. And the Security Unit investigated the incident and communicated its finding to its Chief Security Officer (“CSO”) through an Internal Memo dated 3rd February 2020.

 

Defendant averred that following the recommendation contained in the Internal Memos of 3rd and 17th February 2020 respectively and in line with its Condition of Service, the Claimant (along with Shamsudeen Abu - Lili, Tijani Yusuf and Waziri Isa who at the material time were undergoing investigation on the same allegation) was on 18th February 2020 issued with a Letter of Query drawing his attention to the allegation of fraud which offends Clause 2.09 of the Defendant’s Condition of Service.  By the aforesaid letter of query the Claimant was requested to explain why disciplinary actions should not be taken against him for fraud. The Claimant and the 3 (three) other officers responded to the query, albeit unsatisfactorily, within the time specified in the Letter of Query.

 

Defendant averred that the Claimant along with Mr. Shamsudeen Abu - Lili, Mr. Tijani Yusuf and Mr. Waziri Isa were summoned to the Defendant’s Central Disciplinary Committee (CDC) for hearing on 17th and 18th June 2020. The Claimant was specifically asked if he had anything to say in response or to contradict what the accredited agent who testified as a witness had said, but he elected not to say anything. And at the conclusion of the hearing of the CDC, the CDC forwarded its Report and Recommendation to the Management of the Defendant. The Defendant’s Management considered the Report and approved the Recommendation of the CDC and accordingly directed the Head Human Resources to convey its decision to the Claimant and other members of staff implicated in the Report. Thus by a letter dated 31st August 2020 with the caption “LETTER OF DISMISSAL” Management’s approval of the dismissal of the Claimant, on grounds of Touting and Fraud, was conveyed to the Claimant.

 

 

 

 

At the trial which commenced on the 24th January 2022, the Claimant affirming on oath to tell the truth. Shortly after his affirmation, Counsel to the Claimant sought an adjournment to enable the Claimant file additional witness statement on oath; the said request which was not opposed by the defendant’s counsel was granted accordingly. At the resumed hearing on 16th March 2022, the Claimant testified as CW1 and as the sole witness, he adopted his Witness Statement on Oath deposed to 2nd August 2021 which was then admitted in evidence as Exhibit CW1. The Witness also tendered the following document;

 

1.     Provisional Employment Letter - Exhibit C2;

2.     Letter of Confirmation Exhibit C3;

3.     Query - Exhibit C4;

4.     Reply to Query - Exhibit C5;

5.     Letter of dismissal - Exhibit C6;

6.     Pre-Action Notice - Exhibit C7; and

7.     Letter to Central disciplinary Committee - Exhibit C8.

However, Exhibit C5 was admitted under protest giving the objection erected by the Defendant’s counsel to its admissibility immediately it was sought to be tendered in evidence.

 

The Claimant Witness was cross-examined and discharged. The Claimant closed his case without any re-examination. The Defendant on the 17th March 2022 entered its defence and called its sole witness one Mrs. Hadiza Katagum-Tanja the Assistant Director in the Human Resource Department in the employ of the Defendants. Defendant Witness adopted her Witness Statement on Oath deposed to on the 8th October 2021 which was admitted in evidence as Exhibit DW1. The Defendant Witness also tendered the following documents;

 

 

1.     Conditions of Service - Exhibit D2;

2.     Internal Memo dated 3rd February 2020 - Exhibit D3;

3.     Internal Memo dated 17th February 2020 - Exhibit D4; and

4.     Report and Recommendations of the Central disciplinary Committee dated 6th July 2020 - Exhibit D5.

Exhibits D3 and D4 respectively were admitted under protest following the Claimant’s counsel indication to object to their admissibility. The Defendant Witness was cross-examined by the Claimant’s counsel and discharged. The Defendant closed his case without any re-examination. At this point the Defendant closed his defence and the Court adjourned to 30th May 2022 for adoption of final written address by both parties.

 

The Defendant’s Final written Address was dated 6th April 2022 and filed 7th April 2022.

The Claimant filed his Final written Address on the 17th February 2023. The Claimant’s Final Written Address was however filed out of time. Then the Claimant filed an application extending time within which to file his Final Written Address, the application was dated and filed 20th February 2023.  The Court granted that application. The Claimant’s Final Written Address was by an Order of Court deemed properly filed and served on the 20th February 2023.

The Defendant also filed their Reply on Points of Law on the 20th February 2023.

 

 

DEFENDANT FINAL SUBMISSION

 

Defendant’s address on the Objection to the Admissibility of Exhibit C5;

 

On the admissibility of Exhibit C5, which is the “Reply to Query dated 19th February 2020, which objection is premised on the fact that Exhibit C5 is unsigned. Counsel submitted that it is trite law that an unsigned document is a worthless piece of paper and does not deserve any probative value even when erroneously admitted in evidence. NNALIMUO V. ELODUMUO [2018] 8 NWLR (PT.1622) 549 AT 561.

 

On the issue of Non-Service of Pre-Action Notice Defendant stated that the Claimant’s action is incompetent by reason of non-service of a competent pre-action notice as prescribed by the Companies and Allied Matters Act 2020 (CAMA”). The Court therefore lacks the requisite jurisdiction to adjudicate over the matter.

 

Learned Counsel to the Defendant submitted that by the Act establishing the Defendant CAMA, it is entitled to a 30 (thirty) days’ written pre-action notice personally signed by an intending claimant or his agent before the commencement of any action against it. Section 17(1) of the Companies and Allied Matters Act, 2020 (“CAMA”). Counsel submitted that by the provision of CAMA it is beyond cavil that Defendant is entitled to 30 (thirty) days’ pre-action notice from the Claimant pre-action notice which must be signed by the Claimant or his agent and the notice shall contain the cause of action, parties, name and place of abode of the intending plaintiff and the relief sought. And Section 868(1) of CAMA also defines “agent” by exclusion of legal practitioners acting for a person.

 

Counsel submitted that when a statute prescribes a particular manner a notice or method of doing an act or exercising of authority, no other method will be allowed as substitute, which means all other methods are excluded and discretion is taken out of the equation. UNITY BANK PLC V. IGALA CONSTR. CO. LIMITED [2021] 10 NWLR (PT.1785) 407 AT 435, PARA. C.

It is trite that where a statute requires the service of pre- action notice on a party before any actions is commenced against the party; failure to serve a pre-action notice, though an irregularity, would rob the court of the jurisdiction to entertain the action thus making the action so commenced without service of pre-action notice incompetent. MOBIL PROD. (NIG) UNLTD V. LASEPA [2002)18 NWLR (PT.798) 1 AT 30; NOCKLINK VENTURES LTD. V. AROH [2020] 7 NWLR (1722) 63.

 

Defendant in addressing the Court raised two issues for determination to wit;

 

a.     Whether the dismissal of the Claimant from the service of the Defendant was in accordance with the Defendant’s Conditions of Service;

b.     Whether the Defendant observed the principle of natural justice in its investigation and dismissal of the Claimant?

 

ISSUE ONE

Whether the dismissal of the Claimant from the service of the Defendant was in accordance with the Defendant’s Conditions of Service;

 

Counsel submitted that it is trite that the burden of proof in civil cases is on he who, alleges and this is in line with Section 132 of the Evidence Act. He submitted that it is the law that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. KATTO V. CENTRAL BANK OF NIGERIA [1999] 6 NWLR (PT.690) 390 AT 405.

 

Counsel submitted further that it is elementary law that where the terms of a contract of employment have been reduced into writing, parties to the contract are bound by the terms therein. LADIPO V. CHEVRON (NIG.) LTD. [2005] 1 NWLR (PT.907) 277. Thus once conditions of service exist between the parties the provisions contained therein are binding on them. Any disciplinary measures taken by an employer against an employee upon an allegation of misconduct, such as termination of employment or dismissal, must be in accordance with the laid down procedure as provided by the conditions of service. D.A. NIG. AIEP LTD V. OLUWADARE [2007] 7 NWLR (PT.1033) 336.

 

Counsel finally submitted that the test of whether the dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the dismissal conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rule of natural justice so as to render the formal compliance a travesty. NDILI V. AKINSUMADE [2000) 8 NWLR (PT.668) 293 AT 341.

 

ISSUE TWO

Whether the defendant observed the principle of natural justice in its investigation and dismissal of the Claimant?

 

On this issue, Counsel pointed out that an employee cannot be said to have been denied fair hearing because his employer found his response to a query unsatisfactory. ANSABE V. B.O.N. LTD [2005] 8 NWLR (PT.928) 650 AT 669. He submitted that it is trite that where evidence is uncontroverted, unchallenged and credible, the Court will be left with no option than to accept same. HEM NEBELUNG ISENSEE K.G. V. U.B.A. PLC [2012) 16 NWLR (PT.1326) 357 AT 384.

 

Counsel again submitted that the law is trite that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel of investigation. However, the panel is required to observe the rule of natural justice which requires that the employee must be notified of the alleged misconduct against him and given an opportunity to respond to the allegation. BABA V. N.C.A.T.C. [1991)5 NWLR (PT. 192) 388.

 

Counsel assuming without conceding that the Claimant was not given opportunity to cross-examine witnesses that testified against him at the CDC, submitted that this of itself does not amount to denial of fair hearing, provided that the Claimant had notice of the alleged misconduct and given opportunity to make oral or written representations.  U.B.A. PLC V. ORANUBA [2014] 2 NWLR (PT.1390) 1 AT 36; EKUNOLO V. CBN [2013] 15 NWLR (PT.1377) 224 AT 269.

 

 

CLAIMANT’S FINAL SUBMISSION

 

On Claimant’s reply to objection raised by Defendant on the admissibility of Exhibit C5, Counsel submitted that it is trite that relevance is the yardstick for admitting evidence. Section 6 of the Evidence Act 2011. He submitted that in determining admissibility of a document, it is the relevance of such document that should be considered so far it is consistent with the pleadings of the party.  OYETUNJI V. AKANNI (1986) 5 NWLR (PT. 42) 461.

Counsel further submit that it is an age-long principle of law that once an evidence is probative of the facts in issue, it is considered to be relevant and therefore admissible, because relevancy determines admissibility. Therefore once a piece of evidence is relevant for proper determination of any fact in issue, the court is bound to admit same. And the court is bound to admit Exhibit C5 in evidence. HARUNA V. AG FEDERATION (2021) 9 NWLR (PT.1306) PAGE 419 (SC).

 

Counsel assuming without conceding that Exhibit C5 is inadmissible in evidence as submitted by the defence counsel, then submitted that the court has the powers to admit same in evidence by departing from the provisions of the Evidence Act as empowered by the NIC Act. Section 12 (2) (B) of the National Industrial Court act of Nigeria Act 2006. NYESOM V. PETERSIDE (2016) 7 NWLR (PT.1412) PAGE 452.

 

On the non-service of pre-action notice by the Claimant as prescribed by the Companies and Allied Matters Act (2020).

Claimant raised two issues for determination to wit;

 

1.     Whether having regards to Exhibit C7, the Claimant had served a valid pre-action notice on the defendant before commencing this action?

2.     Whether Section 868 (1) of the Companies and allied Matters Act 2020 is not inconsistent with the provisions of sections 6 (6) (B), 36 (6) (C) of the 1999 constitution of the federal republic of Nigeria (as amended) and if the answer is in the affirmative, whether the provisions of the 1999 constitution of the federal republic of Nigeria (as amended) would not prevail over the provisions of the companies and allied matters act 2020 (as amended) or any other law in force in Nigeria Having regards to the circumstances of this case.?

Learned Counsel argued both issues together.

 

Counsel stated that the Pre-action notice dated 26th October 2020, was received by the Defendant on the 4th day of November 2020 and the action was instituted before this court on the 2nd day of August 2021. Therefore more than enough outside the 30 days stipulated by the said section 17 (1), as such in compliance with the said section. Counsel also stated that the Claimant had also satisfied the requirements laid down under section 17 (2) i.e. stated the cause of action, name of parties, name and place of abode of the claimant and the relief sought in his pre-action notice to the Defendant. And no format was provided for under the Companies and allied matters act 2020 (as amended) rather only requirements (substance) to be made by an intending claimant. Counsel submitted that the court needs to focus on the substance not form of Exhibit C7. BELLO V. A.G OYO STATE (1986) 5 NWLR PT. 45 828 AT 886.

 

Counsel again submitted that Section 6 (6) (B) of the 1999 constitution of the Federal republic of Nigeria (as amended) guarantees access to Superior courts of record, Section 36 (1) of the same constitution equally provides for unlimited access to courts within reasonable time for determination of any civil rights and obligations as such this court has the overriding vires to determine the Instant case especially when a valid pre-action notice had been served on the defendant. CBN V. OODO (2021) 18 NWLR (PT.1809) 461 @ 512 PARAS B-C; AMADI V. NNPC (2000) 10 NWLR (PT.674) 76.

 

Counsel submitted that it is trite law that the appropriate way to raise an issue of non-service is by pleading it in a statement of defense or by motion. And failure to employ any of the 2 mechanisms stated amounts to a waiver of that right by the defendant, as it cannot be raised as objection or by affidavit evidence. CHIEF NATHANIEL EKWE V. ACCESS BANK & ANOR (2020) 4 NWLR (PT.1715) 437-438 PARA H-E 439 PARA C-D. And it is trite that pleadings should only contain concisely plain facts thus law, legal argument, evidence or conclusion are totally not allowed. ODUNSI V. BAMGBALA (1995) 1 NWLR (PT.374) P.641 @ 655.

 

Counsel submitted that the Defendant’s grossly misconceived the provision of section 868 (1) CAMA. This is so because nothing under the said section or under section 17 (1) and (2) prevents an intending claimant’s legal practitioner to sign on behalf of the claimant a pre-action notice. A Person is defined under Section 18 (1) Interpretation act of Nigeria 2004 as anybody of persons corporate or incorporate.

 

It is Counsel’s submission that the phrase acting as counsel for any person means person within the context of the interpretation act 2004, meaning a body corporate or unincorporated i.e. being at least a company or business name which the claimant in this case is not.

Counsel submitted that the use of stipulative/interpretation clauses should not be abused; they are meant to define words that are used in a technical, therefore placing reliance on the Maxim Expressio unius est exclussio alterius means, “the express mention of one thing is the exclusion of another”. He submitted that where an enactment enumerates the things upon which to operate, everything else (not enumerated) must necessarily and by implication be excluded from its operation and effect. ATTORNEY GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 188) 646.

 

Counsel submitted that it is trite law that once a person is charged with a criminal offence, under the 1999 constitution of the federal republic of Nigeria, that person amongst other rights is entitled to a right to either defend himself in person or by a legal practitioner of his choice. Section 36 (6) (c) of the 1999 constitution (as amended), guaranteed any person charged with a criminal offence a right to either defend himself in person or through a legal practitioner of his choice. HARUNA V. MODIBBO (2004) 16 NWLR (PT.900), 487 AND ADEWALE V. OLAIFA (2012) 17 NWLR (PT. 1330) 478.

 

Counsel finally submitted that it is the law that the constitution is the ground norm from which all the other laws of the country derive their validity. Each regulation, rule or any normative prescription in the society derives its validity from the constitution and any laws, rules, regulations etc. that are in conflict with the provisions of the constitution are to the extent of the inconsistency null, void and of no effect. MILITARY GOVERNMENT OF ONDO STATE V. ADEWUNMI (1988) 3 NWLR (PT.81) 280, GLOBAL EXCELLENCE COMMUNICATION LTD & DUKE (2007) LPELR-1323 (SC) 1 @ 26, PARA A.

 

In addressing the Court on the merit of the issue, Counsel raised four issues for determination to wit;

 

1)        Whether the having regards to Section 4 (e) of the Companies and Allied Matters Act 2020 (as amended), the Defendant can dismiss the Claimant from service pursuant to the Defendant’s conditions of service made in June 2011 and pursuant to the repealed Companies and Allied Matters Act 2004 without same been ratified?

 

2)        Whether having regards to the circumstances of the Claimant’s dismissal by the Defendant, the Claimant’s constitutional right to fair hearing was not breached by the Defendant?

 

3)        Whether or not the allegation of fraud upon which the Claimant’s dismissal was premised, was proved beyond reasonable doubt by the Defendant?

 

4)        Whether the Defendant’s Central Disciplinary Committee has the Jurisdiction to try and indict the claimant on an offence of Fraud.

 

ISSUE ONE  

 

a.     Whether the having regards to Section 4 (e) of the companies and allied matters act 2020 (as amended), the defendant can dismiss the claimant from service pursuant to the defendant’s conditions of service made pursuant to the repealed companies and allied matters act 2004 without same been ratified?

 

Counsel stated that the said conditions of service heavily relied upon by the defendant and same tendered in evidence as Exhibit D2 was made in June 2011 pursuant to the repealed Companies and allied matters act 2004. And this position has been solidified by the defendant’s counsel, by premising all their objections on point of law pursuant to the said new companies and allied matters act 2020 (as amended). Counsel stated that this therefore means the extant provisions of the companies and allied matters act 2004 which has been repealed by the new one cannot and would not apply to any case which cause of action arose after the enactment of the new companies and allied matters act 2020 (as amended).

 

Counsel submitted that it is trite that an action cannot be brought ex post fact law meaning a suit cannot be maintained under a retrospective law. The Latin principle of Lex Prospicit Not Respicit which connotes “new law looks forward not backwards” had long been entrenched in the Nigerian legal system as it was severally held by the supreme court that the applicable law to an action is the existing law as at the time the cause of action arose and not the law in force when the action was instituted. HOPE DEMOCRATIC PARTY V. PETER OBI & 5 ORS (2011) 18 NWLR (PT. 1278) AT 100.

 

It is Counsel’s submission that the defendant’s conditions of service (Exhibit D2) being made in June 2011 derives its powers from the repealed companies and allied matters act 2004, as such has the same effect as the repealed Companies and allied matters 2004. Therefore cannot be used to terminate the employment of the claimant with the defendant pursuant to the new companies and allied matters act. He contended that since there is nothing on record before the court to show that Exhibit D2 had been ratified and adopted by the board of the defendant, same cannot be the basis of the claimant’s dismissal from the employment of the defendant. Counsel submitted that the Defendant cannot in one vein rely on the companies and allied matters act 2020 (as amended) and on the other hand rely on a condition of service that was made pursuant to a repealed companies and allied matters act 2004. A party is not allowed to blow hot and cold at the same time. F.R.N V. IWEKA (2013) (PT.1341) 285.

 

Counsel submitted that it is a settled principle of law that a non-existent law is dead and cannot be saved even by the court. ONAGORUWA v. I.G.P (1991) 5 NWLR (PT.193) 593 CA.

 

 

 

 

 

ISSUES TWO, THREE AND FOUR

 

2)         Whether having regards to the circumstances of the claimant’s dismissal by the defendant, the claimant’s constitutional right to fair hearing was not breached by the defendant?

 

3)         Whether or not the allegation of fraud upon which the claimant’s dismissal was premised, was proved beyond reasonable doubt by the defendant?

 

4)         Whether the defendant’s Central Disciplinary Committee Has the Jurisdiction to try and indict the claimant on an offence of Fraud.

 

Counsel arguing the issues jointly, submitted that the claimant was indicted and dismissed from service on grounds of touting and fraud being an allegation of a criminal nature, the standard of proof is beyond reasonable doubt. ADEWALE V. OLAIFA (2012) 17 NWLR (PT.1330) 478, UBA V. OSOK (2016) LPELR-40110 (CA) 8-9; OPARA V. AG FEDERATION (2017) 9 NWLR PART 1569 PAGE 61.

 

Counsel again submitted that is trite law that oral evidence will not be allowed to discredit or contradict clear content of a document. OGBE V. KOGI STATE GOVERNMENT & ORS (2018) LPELR-44796 (CA) 1 46-47 PARA B. He submitted that it is trite law that in any proceeding, whether criminal or civil where allegation of the commission of a crime is an issue, the allegation must be proved beyond reasonable doubt-see section 138 (1) of the evidence act. OTUKPO V. JOHN (2012) 7 NWLR (PT.1299) PAGE 375 PARA B-C.

It is Counsel’s contention that failure of the defendant to check the video evidence of the CRP to see who and when the fraud was perpetuated, and their failure to make available the audit report of the Oasis Company as contained in the CDC report, nor have an expert opinion evidence, creates doubt as to the commission of the allegation by the claimant, thus must be resolved in favor of the claimant. AHMED V. STATE (1999) 7 NWLR PT.612 PG.641 AT 673.

Counsel submitted that it is imperative that an employer needs to justify the termination of its employee by showing that the tenets of fair hearing was observed before dismissal of such employee. UNIVERSITY OF CALABAR V. ESSIEN (1996) 10 NWLR (PT.447) 225 @ 262.

Counsel further submitted that oral evidence cannot be allowed to discredit or contradict clear content of a document. This is so because a document cannot lie unless by direct human intervention. A human being is more prone to telling lies in court especially if he sees the trend of evidence in order to favor himself. MICHEAL DAN UDO V. CHIEF C. UDOM ESHIET (1994) 8 NWLR (PT.363) 482 AT 503, PARAS B-D.

It Counsel’s submission that administrative bodies when considering case of misconduct has a duty to adhere strictly to the principles of fair hearing. JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE & ANOR V. YOUNG (2013) LPELR-20592 SC @ 19-20. He submitted that where there is an allegation of criminal wrongs against a person, the jurisdiction to determine the allegation is vested in the courts and the exercise of such jurisdiction cannot be usurped by any administrative panel. CBN V. DINNEH 2021 15 NWLR (PT.1798) @ 118 PARA B-E.

 

DEFENDANT’S REPLY ON POINT OF LAW

 

Admissibility of Exhibit C5

It is Counsel’s response to the Claimant that the objection is not predicated on the Evidence Act because it is not the Evidence Act that makes an unsigned document inadmissible. CONOIL PLC V. VITOL S.A. [2018) 9. NWLR (PT. 1625) 463 AT 492; NAMMAGI V. AKOTE [2021] 3 .NWLR (PT. 1762) 170 AT 194-195. Counsel submitted that the term ‘stare decisis’ denotes adherence to a previous decision of a court of competent jurisdiction in a later similar case. YANTABA V. GOV. KATSINA STATE (2022) 1 NWLR (PT 1811) 259 AT 355.

Non-Service of Pre-Action Notice

In response to the Claimant, Counsel submitted pre-action notice contemplated under Section 17 of the CAMA 2020 is valid, only where it is duly signed by the Claimant or by his authorized agent who can be anyone, including a legal practitioner, but not a legal practitioner acting as counsel for him. Counsel submitted that any pre-action notice that does not comply with the relevant statute will not be countenanced by the court. NIGERIAN PORTS PLC V NTIERO [1998) 6 NWLR (PT. 555) 640 AT 651; NWADAKE V A.L .S.G [2008) 16 NWLR (PT 1112) 203 AT 220.

 

Counsel stated that the requirement for pre-action does not in any way restrict access to court or rob a party of his right to fair hearing as loosely contended by the Claimant in his Final Written Address.  He submitted that a legislation on pre-action notice does not infringe the provisions of Section 6 of the 1999 Constitution which vests judicial process of the Federation and the State in the courts.  MOBIL PROD. UNLIMITED V. LSEPA [20011 8 NWLR (PT. 715) 48.9 AT 505.

 

Counsel stated that it is not in doubt that Exhibit D2 was made pursuant to the powers donated to the Board by the repealed CAMA and thus qualifies as regulation. He submitted however, that Section 4(e) of CAMA, 2020 empowers the Board of the defendant to make condition of service for employees of the Defendant. Section 4(e) of CAMA 2O20 provides in pertinent parts that the Board shall determine the terms and conditions of service of employees of the commission.

 

Counsel submitted that parties are bound by their pleadings no party is allowed to abandon his pleadings and thereafter lead evidence. C N OKPALA AND SONS LTD V NIGERIAN BREW PC [2018) 9 NWLR (PT 1623) 16 AT 28; OZOMGBACHI V AMADI [2018] 17 NWLR (PT 1647) 171 AT 196.

 

 

Counsel stated that in any event the Claimant was neither tried nor dismissed on allegation of any crime as defined by any written law in force in Nigeria The Claimant was investigated by the CDC on allegations of gross misconduct offending the provisions of Exhibit b3, even if the gross misconduct doubles as a crime, his investigation and subsequent dismissal was predicated on misconduct defined in Exhibit D3 simpliciter. Counsel submitted that the defendant is permitted in law to dismiss the Claimant for infractions set out in Exhibit D3, provided the Claimant is afforded the right to fair hearing. ARINZE V. F.B.N. LTD [2004] 12 NWLR (PT.888) 663 4T676-677; GARBA UNIVERSITY OF MAIDUGURI & ORS [1961 1 NW1LR (PT 18) 55QAT 611.

 

 

COURT’S RESOLUTION

 

I have carefully summarized case before the Court and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties, their written submissions are herewith incorporated in this Judgement and specific mention would be made to them where the need arises.

 

However before proceeding with the merit of the case, I will like to address issues raised by Counsels in their Final written address, to wit;

a.      The admissibility of Exhibit C5.

b.      The non-service of the pre-action notice.

It is Defendant’s Counsel’s submission that the document Exhibit C5 with the subject “Re: Letter to Query” dated 19th day February 2020 which was tendered by the Claimant and admitted in evidence under protest is an unsigned document. Counsel in his address submitted that the unsigned Document is a worthless paper and does not hold any probative value and as such be expunged from evidence. He cited the case of NNALIMUO V. ELODUMUO [2018] 8 NWLR (PT.1622) 549 AT 561. Counsel to the Claimant on the other hand argued that in determining admissibility of a document, it is the relevance of such document that should be considered so far it is consistent with the pleadings of the party.  And once an evidence is probative of the facts in issue, it is considered to be relevant and therefore admissible, because relevancy determines admissibility. He cited the case of OYETUNJI V. AKANNI (1986) 5 NWLR (PT. 42) 461.

It has been held in plethora of cases that the maker who allegedly made a document must sign it for it to be examined by a Court of law. Where a document tendered in evidence as primary evidence is not signed, it cannot be relied upon. See MR. LABARAN MAKU V. ALHAJI UMARU TANKO AL-MAKURA & ORS (2016) LPELR-48123 (SC); IN OMEGA BANK (NIG.) PLC. V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964 AT 1993-1994, (2005) 8 NWLR (PT. 928) 547; GLOBAL SOAP & DETERGENT IND. LTD V. NAFDAC (2011) ALL FWLR (PT. 599) 1025 AT 1047 and the very recent case of NA'ADADE PETROLEUM LTD v. FCT MINISTER & ORS (2022) LPELR-57127(CA).
A thorough perusal of the said Exhibit C5 showed that the letter had a subject and was dated, however it did not given credence to it as the said document had no author to it. The Court of appeal in a recent case of ADOMI & ORS v. OKPA & ORS (2022) LPELR-56940(CA) while reiterating the effect of an unsigned document had this to say;
"In OMEGA BANK (NIG.) PLC VS. O.B.C. LTD. (2005) LPELR - 2636 (SC), Tobi, JSC held: "A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious." Pronouncing an Exhibit 'M' a document not signed tendered in the lower Court, the Court of Appeal in CAKASA (NIG.) LTD & CO. VS. AINA & ANOR (2016) LPELR 42044 (CA) held as follows: "Exhibit 'M' being an unsigned document remains a worthless paper that is devoid of any probative value. An unsigned document is incapable of being used by a Court to resolve facts that are disputed in an action. This settled position of the law has been restated in a plethora of decisions of the apex Court and this Court also including but not limited to GARBA VS KWARA INVESTMENT Co. (2005) 5 NWLR (pt. 917) 160 @ 176... Although admitted as evidence by the trial Court. Exhibit 'M' carries no weight and is incapable of supporting the 2nd Respondent's averment and contention that he had the mandate of the 1st Appellant to sell the disputed land to the 1st Respondent." It is the law that an unsigned document carries no evidential weight. It commands no value in legal proceedings. See HARUNA & ORS VS. MAI JEGA (2018) LPELR - 46779 (CA). In AIKI VS. IDOWU (2006) 9 NWLR (PT. 984) 47, Alagoa, JCA (as he then was) held at page 65 that: "Where a document which ought to be signed is not, authenticity is in doubt, pleadings fall into this category of document. What for example, would it be the effect of attempting to tender a letter of employment which is unsigned. It would certainly not go in as an exhibit..."

The document exhibit C5 did show a signature and a date with the phrase “original copy collected by me”. However this also does not in any way give any credence to the document. And this court is not in any position to speculate as to the origin of this document or who authored it. As it that been held in plethora of cases that a Court of law relies on evidence in resolving disputes and not on speculation. The Court is prohibited from embarking on speculation. Speculation has no place in law. See MARTINS VS. THE STATE (2019) LPELR-48889 (SC), ADDO VS. THE STATE (2020) LPELR-55521 (SC), AWOLOLA VS. GOVERNOR OF EKITI STATE & ORS (2018) LPELR-46346 (SC); D. RADDA VENTURES (NIG) LTD & ANOR V. UNITY BANK PLC (2022) LPELR-58301(CA)

On Claimant Counsel’s reliance on Section 12 (2) (b) of the NIC Act 2006 that the court is allowed to depart from the provision of the Evidence Act in the interest of justice. I am of the view of the fact interest of justice is generally what is fair and equitable and this is subject absolutely to the discretion of the Judge and the uniqueness of each case and their facts. To this end the court in the recent case of LASUN & ORS v. WEMA BANK (2021) LPELR-54852(CA) the Court of Appeal Per OTISI JCA, had this to say;

"The Appellants asserted that it was at the 177th meeting of the Respondent's Board of Directors, that these recommendations were approved. They relied on the minutes of the said meeting. The said minutes, pages 117 - 126 of the record of appeal, were not signed by anybody and the document was not certified. Once more, I agree with the Respondent's counsel that an unsigned document can carry no weight. No one can take responsibility for the authenticity of its contents. Therefore, it cannot be relied on to resolve facts that are disputed in an action between the parties. See Garuba v. Kwara Investment Company (supra); Omega Bank (Nig) Plc v O.B.C Limited (supra); Mbang v Guardian Newspapers Ltd (2010) LPELR-4479(CA). This is quite different from a case in which the immediate parties to an unsigned document do not deny their agreement or the existence of the contract. The existence of the contract cannot be impugned on the ground that the document was not signed, unless the parties have made it a condition of their being bound. See Awolaja v Seatrade G.B.V. (2002) LPELR-651(SC). In the case of Jinadu v Esurombi-Aro (supra), (2009) LPELR-1614(SC) relied upon by the Appellants, the minutes of a meeting were admitted in evidence to show that there was a meeting held, but the Apex Court unequivocally pronounced that the said exhibit, which was unsigned would attract little or no weight. This is not the case in this appeal where the parties are not in agreement on the decisions allegedly reached in the said meeting. The Appellants' counsel placed reliance on the provisions of Section 12(2) (b) of the NIC Act, which provides that the lower Court may depart from the provisions of the evidence act in the interest of justice. I do not see the relevance or applicability of the said provisions herein. The phrase in the interest of justice refers generally to the cause of fairness and equity and is subject to the discretion of the Judge, taking into cognizance the peculiar circumstance of each case. The parties are not on one page on the agreements alleged, by the Appellants, to have been reached in the said 177th meeting of the Respondent. How can it be in the interest of justice to admit in evidence and accord any weight at all to the said document? While there may be no precise definition for the phrase, it cannot be controverted that a decision made in the interest of justice cannot be one-sided. Further, by virtue of the provisions of Sections 241(1) and (2) of Companies and Allied Matters Act (CAMA), minutes of a meeting of the board of directors of a company if signed by the chairman of that meeting or the next succeeding meeting shall be prima facie evidence of the proceedings. The alleged minutes of the 177th meeting of the Respondent's Board was not signed. I therefore agree with the Respondent's Counsel that the said minutes, relied upon by the Appellants, which was neither signed by the Chairman nor the secretary of the Respondent’s board, nor not certified, was not admissible in evidence."

On the difference between admissibility and relevance of an unsigned document and probative value to be attached to it, the position of the law is that there is a difference between the admissibility of a document and the probative value to be attached to it. While admissibility is based on relevance, while probative value depends not only on relevance but also on proof. Evidence is said to have probative value if it tends to prove an issue. See ACN VS LAMIDO (2012) 8 NWLR (1303) 560; BUHARI VS INEC (2008) 19 NWLR (PT.1120) 246; BELGORE VS AHMED (2013) 8 NWLR (PT.1355) 60 @ 100 E-F. NYESOM V. PETERSIDE & ORS (2016) LPELR-40036(SC).  That being said it is also settled law that for a document to be efficacious and be accorded probative value, the document must be signed. An unsigned document has no efficacy in law, it is a worthless document and cannot be efficacious. See ABUBAKAR v. IBRAHIM & ORS (2022) LPELR-58303(CA). I have to side with the Defendant here that the Claimant has not lead any evidence to prove the authorization the Exhibit C5. I am therefore of the view that Exhibit C5 being an unsigned document holds no probative value even though it was admitted on the basis of relevance. This issue is therefore resolved in favour of the Defendant. Exhibit C5 is hereby expunged and cannot be relied upon.

 

On the Issue of non-service of pre-action, I must state that the Defendant entered a memorandum of appearance. While a party to a case could not be said to have waived his right to the commencement of an irregular proceeding merely for the reason of an "appearance" in the case. A party to a proceeding can only be said to have waived his right to an irregular proceeding when he sleeps over his right after the proceedings have commenced or long commenced. It is important to state that pre-action notice is a right that can be waived. See ADEYEMO & ORS v. ABEFE & ORS (2018) LPELR-44855(CA).

 

However the issue of want of pre-action notice has been an issue of jurisdiction where it is a requirement of the law. Non-service of a pre-action notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. Thus non-service of pre-action notice is a special defence available to the defendants. It is one of facts. The facts must be pleaded in the statement of defence.  See the case of NOCKLINK VENTURES LTD. V. AROH [2020] 7 NWLR (PT. 1722) 63. In the instant case, the Defendant in its Statement of Defence did not plead the facts of the non-service of pre-action notice. And it is settled law that a pre-action notice is usually a procedural defense open to Government Corporations or Agencies whenever they are sued. The Act usually under which the Corporation is created or established requires prospective Plaintiffs in a potential action against the Corporation to serve the Corporation with a pre-action notice. See ZAMFARA STATE GOVT & ANOR v. UNITY BANK & ANOR (2016) LPELR-41813(CA). That been said, I am of the view that the Defendant’s failure to plead the facts of the non-service of pre action notice and his failure to raise timeously the issue of non-service of pre action notice, and in fact his participation in the entirety of the proceedings from the commencement to the adoption of his final written address means he has waived his right to heard on the issue.

 

However I will still proceed to address the contention of Counsel that the said pre-action notice which was served on the Defendant is incompetent because by virtue of Section 17(1) of the Companies and Allied Matters Act, 2020 (“CAMA”), the Defendant is entitled to a 30 (thirty) days’ written pre-action notice personally signed by an intending claimant or his agent before the commencement of any action against it. And by the provisions in Section 868 of the CAMA 2020, “agent” is defined by exclusion of legal practitioners acting for a person.

First I will reiterate that a pre-action notice is usually a procedural defense open to Government Corporations or Agencies whenever they are sued. The Act usually under which the Corporation is created or established requires prospective Plaintiffs in a potential action against the Corporation to serve the Corporation with a pre-action notice. See ZAMFARA STATE GOVT & ANOR v. UNITY BANK & ANOR (supra); IGBRUDE v. ECOBANK LTD & ORS (2018) LPELR-45563(CA).

 

On what form a pre-action notice should take, the Court in NTIERO v. NPA (2008) LPELR-2073(SC) held thus;

 

“I believe that a pre-action notice should be in the form of a letter usually written by a plaintiff or his Solicitor to the prospective defendant giving him notice of intention to institute legal proceedings against him for specified reliefs."

I need to state that while the issuance of the notice by a prospective plaintiff is mandatory, the particulars to be included in the notice, which are: (a) Cause of action, (b) Claim. (c) Place of abode of the intending plaintiff, and (d) Relief to be claimed; (e) appear to me to be directory. See NWADIKE & ORS v. AWKA SOUTH LOCAL GOVT (2008) LPELR-8450(CA). A close perusal of Exhibit C7 showed that the Claimant followed the form a pre-action notice should take. For a better understanding of the issue I will reproduce Section 17(1) (b) and Section 868 of CAMA 2020;

 

Section 17 (1) “A suit shall not be commenced against the Commission before the expiration of 30 days after a written notice of intention to commence the suit i s served upon the Commission by the intending plaintiff or his agent.”

 

Section 868 (1) "agent" does not include a legal practitioner acting as counsel for any person;

The duty of the court generally is to interpret the law and not to make it. This is achieved by applying the literal rule of interpretation and it is only when the application of the rule leads to absurdity that a court is allowed to look at other rules of interpretation; namely the golden and the mischief rules of interpretation among others. See OJUKWU V. OBASANJO (2004) 12 NWLR (PT. 886) 169; ADISA V. OYINWOLA (2000) 10 NWLR (PT. 674) 116; ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (PT. 1461) 314 REFERRED TO.] (PP. 562-563, PARAS. E-B).

However, where a law or statutory provision that seeks to deprive a citizen of his inalienable rights vested by the Constitution without recourse to the law court, must be construed very strictly, critically, and narrowly against the party seeking its benefits. It is also an accepted cannon of interpretation of statutes that any law which seeks to deprive a citizen one of his vested proprietary rights must be construed strictly against the law maker. BELLO V. THE DIOCESAN SYNOD OF LAGOS (1973) ECSNLR VOL. 3 (PT. 1) 334; IN RE: BOWMAN SOUTH SHIELDS (THAMES STREET) CLEARANCE ORDER (1931) (1932) 2 KB 62; FCDA V. SULE (1994) 3 NWLR (PT. 332) 257; GARBA V. FCSC (1988) 1 NWLR (PT. 71) 449 REFERRED TO.] (PP. 528-529, PARAS. H-C).

One must also bear in mind that that by the provision of Section 6(6) (b) of the 1999 Constitution citizens of Nigeria has the inalienable right to seek redress in a Court of law which cannot be taken away even if an alternative remedy to resolving the dispute is available. See B. I. AIKABELI V. AFRICAN PETROLEUM PLC (2004) LPELR - 12510 (CA), CAPTAIN E. C. C. AMADI V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2000) LPELR - 445 (CS), ALHAJI TIJJANI DAGAZAU & ANOR V. BORKIR INTERNATIONAL COMPANY LIMITED (1999) LPELR - 13366 (CA). The Constitution is supreme; it is the organic or fundamental law and it is the grundnorm of Nigeria. The Constitution is the fons et origo and foundation of all laws.  Any act which infringes or runs contrary to those organic principles or systems or provisions must be declared to be inconsistent. The Court has the jurisdiction to declare any other law or Act inconsistent with the provisions of the Constitution, invalid and therefore null and void. Section 1 (3) of the 1999 CFRN. See FASAKIN FOODS (NIG.) LTD V. SHOSANYA (2006) 10 NWLR (PT. 987) 126 AT 148 -149 PER OGBUAGU JSC; EMERAH & SONS (NIG.) LTD. V. ATTORNEY GENERAL PLATEAU STATE (1990) 4 NWLR (PT. 147) 788; ATTORNEY GENERAL LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT. LLL) 552; KALU V. ODILI (1992) 5 NWLR (PT. 240) 130; IMONIKHE V. ATTORNEY GENERAL BENDEL STATE (1992) 6 NWLR (PT. 148) 296; ROSSEK V. A.C.B. LTD. (1993) 8 NWLR (PT. 312) 382; NUHU V. OGELE (2003) 18 NWLR (PT. 852) 251; UWAYO V. ATTORNEY GENERAL BENDEL STATE (1982) 4 NCLR 1; IKINE V. EDJERODE (2001) 18 NWLR (PT. 745) 466; ATTORNEY GENERAL OGUN STATE V. ATTORNEY GENERAL FEDERATION (2002) 18 NWLR (PT.798) 232; LABIYI V. ANRETIOLA (1992) 8 NWLR (PT. 258) 139. The Constitution is the grundnorm and any law or enactment that contravenes or is inconsistent with the provisions of the law is null and void, and the provisions of the Constitution would prevail. In NWAIGWE AND ORS v NZE EDWIN OKERE (2008) LPELR - 2095 (SC), the Supreme Court held per ONNOGHEN, JSC on the effect of any law or act that is inconsistent with the constitution, thus; "...the constitution is the Supreme law of the land and it is settled law that any law or Act or Section thereof that is inconsistent with any provision of the constitution is null and void to the extent of the inconsistency.

Counsel’s contention is that Exhibit C7 was signed by on A.M Saleh the Counsel representing the Claimant in this suit as opposed to it being signed by the Claimant personally or an agent which is not a Legal Practitioner who is not acting as a Counsel. A literal interpretation of Sections 17 (1) and 868 of the Companies and Allied Matter Act 2020 is not only absurd but it will deprive the Claimant of his constitutional right to access a Court. I am therefore of the view that these Sections are inconsistent with the provisions of the constitution and are therefore null and void.  This case is therefore resolved in favour of the Claimant.

I shall now proceed to deal with the merits of the case, to my mind, the issues for determination by this court are;

1.     Whether the dismissal of the Claimant from the service of the Defendant was in accordance with the Defendant’s Conditions of Service; having regards to Section 4 (e) of the Companies and Allied Matters Act 2020 (as amended).

2.     Whether the Defendant observed the principle of natural justice in its investigation and dismissal of the Claimant?

3.     Whether the Defendant’s Central Disciplinary Committee has the Jurisdiction to try and indict the claimant on an offence of Fraud.

While the Claimant’s relief are as follows;

a.      A Declaration that the purported termination of the claimant’s employment by the Defendant is gross violation of his constitutionally guaranteed right to fair hearing thus null, void and unenforceable howsoever.

b.     An Order of this honorable court quashing the purported dismissal of the claimant as contained in the letter of termination dated 31 August 2020 having been done in strict violation of his constitutional right to fair hearing and contrary to his condition of service.

c.      A Declaration that the claimant was and is still a staff of the defendant by virtue of the letter of appointment dated 19th July2010.

d.     A Declaration that the purported dismissal of the claimant from service is wrongful, null, void, unenforceable whatsoever.

e.     An Order of this Honorable court compelling the defendant to reinstate the claimant with immediate effect.

f.       An Order of this Honorable court compelling the defendant to pay the claimant all his entitled salaries and arears.

g.      An Order of Fifteen Million Naira (15,000,000.00) against the defendant as general damages for Psychological stress and hardship suffered by the claimant for wrongful dismissal by the defendant.

On the first issue, it is very important to determine the relationship between the Claimant and the Defendant. From Exhibit C2 and C3   i.e. the letter of appointment and confirmation of Appointment, there is clearly an employment relationship between both parties. However it must be determined what category of employment relationship exists between the parties. Now there are mainly 3 categories of contracts of employment- namely;

a)      those regarded as purely master and servant;

b)     those where a servant is said to hold office at the pleasure of the employer; and

c)      those where the employment is regulated by statute often referred to as employment with statutory flavour. SEE OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT 9) 599, KWARA STATE JUDICIAL SERVICE COMMISSION &; ORS V. TOLANI (2019) LPELR - 4739 (SC) CBN V. IGWILLO (2007) 14 NWLR (PT 1054) 393.

Now for a contract of employment to be said to import statutory flavour, two vital elements must co-exist, to wit. (1) The employer must be a body set up by the constitution or statute and (2) The statute or regulation made pursuant to the constitution or the principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned especially, in the matters of discipline. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (Supra).  In the case of IDONIBOYE-OBU v. NNPC (2003) LPELR-1426(SC) the court held thus;

"Before an employment can have statutory flavour the statute must expressly make it so. Otherwise the employment will have to be treated on the basis of the common law principle of master and servant. It is pertinent to ask, when will a condition of service be regarded to have statutory flavour? The answer is simple. A regulation with statutory flavour must be enacted by the Parliament or any Law making body as a schedule to an Act or Law or as a Subsidiary Legislation. The conditions of service under which the appellant was employed were drawn up by the Board of Directors of the Nigerian National Petroleum Corporation. They have no statutory flavour like S. 17 of the University of Lagos Act and Public Service Commission Regulations which governed the employment of Olaniyan and Shitta-Bey respectively."

It is settled law that in the determination of a category of employment recourse will be made to the contract of employment. See FIRST BANK v. MOMOH (2020) LPELR-51517(CA). After a careful perusal of Exhibit C2 and C3, I am satisfied that the relationship between the Clamant and Defendant is the one of Employee/ employer Governed by agreement commonly referred to a master/servant relationship even though the Defendant is a creation of statute. And every master/servant relationship is governed by the agreement of the parties and not by statute. See SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, and VOLUME 16. PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANTRELATIONSHIP.

The law is settled that the law relevant and applicable in the determination of a matter is the law in force at the time the cause of action arose. See LONGE MEDICAL CENTRE & ANOR v. AG, OGUN STATE & ANOR (2020) LPELR-49751(CA). In the case of ZUBAIR v. KOLAWOLE (2019) LPELR-46928(SC), the Supreme Court held thus;

"It is a settled principle of law that the law applicable to a cause of action is the law in force at the time the cause of action arose and not the law existing at the time the jurisdiction of the Court is invoked. See: Adah Vs NYSC (2004) 13 NWLR (Pt. 891) 639; Akibu Vs Oduntan (2000) 7 SC (Pt. II) 106; Olutola Vs University of Ilorin (2004) 18 NWLR Pt 905,416."

 

After a perusal of Exhibit C6 the Letter of Dismissal, I am of the view that the cause of action in the suit ensued on the 31st of August 2020. While the Companies and Allied Matters Act 2020 (new CAMA) was signed into law on the 7th of August 2020. I am therefore of the opinion that the law applicable to the Claimant’s case is the present Companies and Allied Matter Act 2020, which was the law in force at the time the cause of action accrued i.e. Claimant received his Letter of Dismissal (Exhibit C6).

 

At this junction I must point out that it is settled law the fact that an employer is a creation of statute does not necessarily elevate an employee’s employment to that with is statutory flavored. For an employment to be one of statutory flavor certain condition must be met. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (2019) LPELR - 4739 (SC). The fact that the Defendant is a Federal Government Agency established by an Act of parliament, does not mean that its conditions of service for it employees can create a special character or elevate the employment relationship to be one of Statutory flavour. Such relationship will be classified as a master/servant relationship.  In other words, in addition to the requirement that the employer must be a body set up by statute, the stabilizing statute must make express provisions relating to the employment of the staff of the category of its employees in matters of discipline including termination dismissal of the employees. See FAKAUDE V. OAUTH (1993) 5 NWLR (Pt 291) 47 @ 63, NIIA v. AYANFALU (2006) LPELR-5960(CA); FMC IDO-EKITI & ORS v. ALABI (2011) LPELR-10931(CA). In the recent case of C. B. N. V. OHIKU (2020) LPELR-51274(CA) it was held that unless an employee's employment is governed by statute or regulation that can be properly called a statutory or subsidiary legislation providing for procedure for the removal or dismissal of an employee such an appointment cannot be said to be an appointment with statutory flavour.

 

The Defendant is a creation of an Act of parliament. The Defendant was created by Section 1 of the Companies and Allied Matters Act 2020 (herein referred as “Act”). Section 2 of the Act established a Governing Board, While 4 provides for the functions of the Board. However, Section 4 (e) specifically provided that the board will determine the terms and conditions of service of employees of the Commission. It is on the face of Exhibit C2 that the Claimant’s employment is subject to the Defendant’s Conditions of service. While on the face of Exhibit D2 it is shown that the said Conditions of service was not made pursuant to the Act. I.e. CAMA 2020, it was rather made pursuant to the repealed Companies and Allied Matters Act LFN 2004. Also there is no evidence before this court to show that the Board under the extant Act adopted the said Conditions of service or made a new Conditions of service pursuant to its power to do so under Section 4 (e) of the Companies and Allied Matters Act 2020.

Assuming also without conceding that the old CAMA is the applicable law in this instance case, there is no provision or section in the whole of the repealed CAMA 2004 that showed that either the Defendant or its Board had any sort power to determine the terms and condition of service for its employees. As already established in various authorities cited in preceding paragraphs of this judgment I will reiterate again that the fact that an employer is a creation of statute does not mean an employee will enjoy the protection of the said statute. For employee to enjoy employment with statutory flavor, it must be shown that the statute creating the employer must also create a form a protection for the employee. See ENGR. E. O. AWALA VS NITEL PLC (2019) 10 SCM 19 AT 40; COMPTROLLER-GENERAL OF CUSTOMS &; ORS VS COMPTROLLER ABDULLAHI GUSAU (2017) 18 NWLR (PART 1598) 35. The Claimant’s employment is one of ordinary master/servant and not one clothed with statutory flavour. I so hold.

On the second issue, the Defendant argued that an employee cannot be said to have been denied fair hearing because his employer found his response to a query unsatisfactory. As the law is trite that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel of investigation. However, the panel is required to observe the rule of natural justice which requires that the employee must be notified of the alleged misconduct against him and given an opportunity to respond to the allegation. While the Claimant argued that administrative bodies when considering case of misconduct has a duty to adhere strictly to the principles of fair hearing. JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE & ANOR V. YOUNG (2013) LPELR-20592 SC @ 19-20.

 

It is settled that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded to him to justify or explain same. See YUSUF V. UNION BANK (1996) 6 NWLR (PT.457) 632, where Wali, JSC stated - "... Before on Employer can dispense with the services of his Employee under the common law, all he needs to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the Employee is being dismissed involves accusation of crime". See also NIGERIAN OIL MILLS V. DAURA (1996) 8 NWLR (PT.465) 601, AND ARINZE V. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (PT. 639) 78; UBA PLC V. ORANUBA (2013) LPELR-20692(CA). As part of fair hearing, it is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further, by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee. See STATE CIVIL SERVICE COMMISSION VS. BUZUGBE (1984) 7 SC PAGE 19. UDOH V. CIVIL SERVICE COMMISSION AKWA IBOM STATE & ORS (2013) LPELR-21849(CA). The Claimant in his statement of facts Paragraph 6 and 7 stated that he was issued a query dated 18th February 2020 alleging his several offences, and in a bid to prove his innocence, he responded to the query via a letter dated 19th February 2020. While, the Defendant in their statement of defendant averred that prior to issuing the query to the Claimant, the security unit of the Defendant investigated the incident and then reported it findings via an internal memo dated 3rd February 2020. Now a look at the Defendant’s conditions of service in Paragraph 4.01 showed that in its disciplinary procedure, where a staff commits an act of misconduct or an offence which constitutes a breach of the conditions of service, he/she will be queried and required to make a written representation within 24 hours. The Defendant did not stop there, he further invited the Claimant to a Disciplinary Committee as admitted by Claimant in his written and oral depositions. As provided in Exhibit D5, which is the Report and Recommendation of the CDC, the Claimant was invited to give his oral testimony which he did. He did not lead any evidence to establish otherwise. And the law is settled that where a fact pleaded by one party is admitted by his opponent, there is said to be an admission of fact. In that circumstance generally speaking, the fact is said to be established and the need for proof of that fact does not arise as it is not an issue in the case. See Section 123 of the Evidence Act, 2011, R.C.C. LTD v. ROCKONOH PROPERTY COMPANY LTD (2005) 127 LRCN 1312 and AKANINWO v. NSIRIM (2008) ALL FWLR (PT. 401) 610 or (2008) 9 NWLR (PT. 1093) 439; ANYALEWECHI v. LUFTHANSA GERMAN AIRLINES (2021) LPELR-55213(CA).

The law is that ordinarily a master is entitled to dismiss his servant for good or bad reasons or for no reason at all; that where parties have reduced the terms and conditions of service into agreement, the conditions must be observed; that where a contract of employment had been properly terminated, intention or motive for doing so becomes totally irrelevant; and that where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to him to explain, justify or else defend the alleged misconduct. See AVRE v. NIPOST (2014) LPELR-22629(CA). From the evidence before me, the Defendants have showed that enough that the Claimant was given several opportunity from the query to the CDC to defend himself. He was given the opportunity to be heard and he was heard and give fair hearing. I so hold.

 

On the third issue, in the case ARINZE V. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (PT. 639) 78; per Olagunju, JCA, held thus-

 

"It seems to me from the perspective of the decisions on the powers of an Employer to dismiss summarily his Employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence. In sum, contrary to the argument of learned counsel for the Appellant, the principle that where the act of misconduct by on Employee also amounts to a criminal offence, the criminal offence must first be prosecuted before the Employee can exercise his power of summary dismissal of the Employee is not intended as law of the Medes and Persians. It is not an immutable principle.”

It is not necessary, nor is it a requirement under 36 of 1999 Constitution that before an Employer summarily dismisses his Employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the Employee is for gross misconduct involving dishonesty bordering on criminality…To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him". It was also held by the Supreme Court that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. See ARINZE v. FIRST BANK OF NIGERIA LTD (2004) 12 NWLR (Pt.888) 663; VENN v. ACCESS BANK PLC & ORS (2014) LPELR-24077(CA).

 

Finally in the recent case of BILLIE v. MULTI- LINKS TELECOM LTD (2017) LPELR-41862(CA), the Court of Appeal had this to say;

 

"The lower Court was right in its finding that the Respondent could opt for administrative proceedings. Conceded that some elements of gross misconduct may have the semblance of crimes or offences known to law but an employer, even on the face of a crime can still act under the contract of employment to dismiss without waiting for criminal proceedings to determine the guilt of the employee. See AFRICAN NEWSPAPERS LTD & ANOR V JACOB O. AKANO (2011) LPELR-3641 (CA) in which the Court held thus: "In other words, prosecution before a Court of law in the circumstances, is not a sine qua non for summary dismissal..... ALHAJI YUSSUF V UNION BANK OF NIGERIA LTD (1996) 6 NWLR (PT. 457) 632......... In statutory employment as in private employment, the employer can dismiss in all cases of gross misconduct." See also ARINZE v F.B.N. LTD (2004) LPELR- 551(SC) where the Apex Court held that: "It is not necessary, nor it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is gross misconduct involving dishonesty bordering on criminality..... to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him." See also YUSUFF v UNION BANK LTD (1996) 6 NWLR (PT. 456) 692."

In line with the various authorities cited above and in support, I find that the Defendant are not under any obligation to first try the Claimant in any Court for the criminal offence of fraud and it sufficient that in line with the provisions of the Conditions of service, the Defendants can hear and determine the offence administratively as long as it conforms with the principles of fair hearing and natural justice. I so hold. (Which they did),

 

On reliefs 1 and 2, A Declaration that the purported termination of the claimant’s employment by the Defendant is gross violation of his constitutionally guaranteed right to fair hearing thus null, void and unenforceable howsoever.

An Order of this honorable court quashing the purported dismissal of the claimant as contained in the letter of termination dated 31 August 2020 having been done in strict violation of his constitutional right to fair hearing and contrary to his condition of service.

It is settled law that where a party seeks declaratory reliefs, he must succeed on the strength of his own case, and not on the weakness of the defence, if any. See: DUMEZ NIG. LTD. VS NWAKHOBA (2008) 18 NWLR (PT.1119) 361; BELLO VS EWEKA (1981) 1 SC (REPRINT) 63; EMENIKE VS P.D.P. (2012) 12 NWLR (PT.1315) 556; ILORI VS ISHOLA (2018) LPELR-44063 (SC). A declaratory relief must be proved to the satisfaction of the Court notwithstanding default of defence or any admission in the defendant's pleading. See: OKOYE & ORS VS NWANKWO (2014) 15 NWLR (PT.1429) 93; EGUAMWENSE VS AMAGHIZEMWEN (1993) 9 NWLR (PT.315) 1 @ 30. It has been established by several authorities above that the Claimant was given his right of fair heard. The Claimant also did not lead any evidence otherwise to show that he was deprived of this right. See again NIGERIAN OIL MILLS V. DAURA (1996) 8 NWLR (PT.465) 601, AND ARINZE V. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (PT. 639) 78; UBA PLC V. ORANUBA (2013) LPELR-20692(CA). STATE CIVIL SERVICE COMMISSION VS. BUZUGBE (1984) 7 SC PAGE 19. UDOH V. CIVIL SERVICE COMMISSION AKWA IBOM STATE & ORS (2013) LPELR-21849(CA). These reliefs therefore fail.

 

On relief 3 to 6 A Declaration that the claimant was and is still a staff of the defendant by virtue of the letter of appointment dated 19th July2010.

A Declaration that the purported dismissal of the claimant from service is wrongful, null, void, unenforceable whatsoever.

An Order of this Honorable court compelling the defendant to reinstate the claimant with immediate effect.

An Order of this Honorable court compelling the defendant to pay the claimant all his entitled salaries and arears.

 

It has been established above that the relationship between the Claimant and the Defendant is a common master/servant relationship not one clothed with statutory flavour. And as established in preceding paragraphs the law is that for a regulation with statutory flavour must be enacted by the Parliament or any Law making body as a schedule to an Act or Law or as a Subsidiary Legislation. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (Supra).  Also the law is where a statute clearly provided for the employment and discipline including an employee's retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed is null and void. See E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005) LPELR - 1420 (SC), (2005) 16 NWLR (PT. 951) 378; OBU V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2003) LPELR- 1426 (SC), (2003) 2 NWLR (PT. 805) 589. Now the law is settled that a declaration that a contract still subsists will rarely be made and are made where the contract has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship. Also where there is a special legal status such as where a tenure of public office is attached to the contract of employment. See CHUKWUMAH V SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (1993) 4 NWLR PART 289 PAGE 512 AT 537 PARA F-H PER OGUNDARE J.S.C.; OSHISANYA V AFRIBANK (NIG) PLC (2007) 6 NWLR PART 1031 PAGE 565; SULAIMAN V. NBC PLC (2015) LPELR – 25911 (CA). Claimant employment is not one that enjoyed statutory flavour, thus the Court cannot declare his contract as subsisting / instead, the Claimant will only if any and in the case of wrongful dismissal be entitled to the measure of damages is the salary he would have earned over the period of notice required to lawfully terminate his employment.  These reliefs accordingly fail.

One relief 7, An Order of Fifteen Million Naira (15,000,000.00) against the defendant as general damages for Psychological stress and hardship suffered by the claimant for wrongful dismissal by the defendant. The Claimant didn’t not inform the court as to how he arrived at the sum of Fifteen Million Naira (15,000,000.00), furthermore a claim for Psychological stress requires proof by relevant medical evidence such as a psychiatric report or psych evaluation from a mental health practitioner to enable the court appraise the diagnosis, prognosis,   nature of required intervention or treatment and incidental duration. In this case the Claimant has provided nothing on which the Court can rely to assess damages and for that reason this relief fails.

All in all the claimant case lacks merit and is hereby struck out.                     

I make no order as to cost.