IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE KADUNA JUDICIAL DIVISION
HOLDEN
AT KADUNA
ON
WEDNESDAY 16TH DAY OF JANUARY, 2019
BEFORE HIS LORDSHIP: HON. JUSTICE S. O.
ADENIYI
SUIT NO: NICN/ABJ/445/2016
BETWEEN:
MALLAM
USMAN TAKO…………………………CLAIMANT
AND
NIGER STATE JUDICIAL SERVICE
COMMISSION (NSJSC) ---- DEFENDANT
J
U D G E M E N T
The Claimant was
employed by the Defendant as a Court Clerk and was promoted to the post of a
Senor Clerk II. His employment was however dismissed by the Defendant. The
summary of his case against the Defendant, as garnered from the Complaint and Statement of Facts
filed to commence this action on 07/12/2016, is that after he was appointed, he
served at various Chief Magistrate’s Courts of the Niger State Judiciary and
there was no official complaint against him until March 2010 when he was issued
a query. He further alleged that on 21st September, 2016, the
Registrar of Chief Magistrate Court, Nasko sent him on an official assignment
to process and to obtain stationary for the Court. While carrying out the said
instructions, the Claimant claimed that he was issued with a letter terminating
his appointment.
2. Being aggrieved
that due process was not followed by the Defendant before his appointment was
terminated, the Claimant commenced the instant action, whereby he claimed from
the Defendant, the reliefs set out as follows:
1. A declaration
that the termination of the Claimant’s appointment was in gross violation of
his right to fair hearing.
2. An Order
compelling the Defendant to restore the appointment of the Claimant forthwith.
3. An order
mandating the Defendant to pay all salary, allowances and arrears with effect
from September, 2016 until the final determination of this suit.
4. The cost of
this suit.
3. The Defendant joined issues with the Claimant by filing its Statement of Defence on 24/01/2017,
whereby it denied the entirety of the Claimant’s claim; contending that the
Claimant was given fair hearing before he was dismissed.
4. At the plenary trial, the Claimant testified in person. He adopted
his written depositions and tendered five (5) documents as exhibits; whilst
the Defendant’s learned counsel subjected him to cross-examination. A subpoena duces tecum was issued and served at the instance of the
Claimant on the Chief Registrar of High Court of Justice, Niger State and one Hamza Muazu to produce two documents
which were also tendered as exhibits.
On its part, the Defendant called a sole witness, by name Abdullahi Halim Usman, the Assistant Secretary
of the Defendant. He equally adopted his written depositions
and tendered three (3) documents in evidence. He was also subjected to cross-examination
by the Claimant’s learned counsel.
5. Upon conclusion of plenary trial, parties filed and exchanged their
written final Addresses as prescribed by the provision of Order 45 of the Rules of this Court.
In the final Address filed on behalf of the Defendant on 30/07/2018, its
learned counsel, Danladi Ahmad, Esq., formulated a sole issue as having arisen
for determination in this suit, that is:
“Whether fair hearing and
due process was followed, leading to the termination of appointment of Claimant
for act of absenteeism and dereliction of duty without permission of the
relevant authority?”
On his part, the Claimant filed his final Address on 08/10/2018, whereby
his learned counsel, J.G. Taidi, Esq., framed two issues
for determination in this suit, namely:
1. “Whether, the right to fair hearing of the
Claimant was breached by the Defendant in the process leading to the
termination of his employment”
2. “Whether due process was followed in
terminating the Claimant’s employment by the Defendant”?
The Defendant
thereafter filed a Reply on Points of
Law on 11/10/2018.
6. Upon a careful
appraisal of the totality of the pleadings of parties and the evidence led on
the record, particularly the documents admitted as exhibits; I am of the view
that the focal issues that have arisen for determination in this suit, without
prejudice to the issues formulated by the respective parties, can be succinctly
distilled as follows:
1. Whether or not due process was followed
in the termination of the Claimant’s appointment by the Defendant.
2. If issue No. 1 is answered in the
affirmative, whether or not the Claimant is entitled to the reliefs.
In proceeding to determine these issues, I should
state that I had carefully considered and taken due benefits of the totality of
the arguments canvassed by the respective learned counsel in their written
final Addresses, together with their oral adumbrations. I shall endeavour to
make specific reference to counsel’s submissions as I deem needful in the
course of this Judgment. I shall proceed to take both issues together.
7. As a starting
point, considering that proof of unlawful termination of employment is substantially
a question of facts to be established by positive and cogent evidence; and in order also to place the case made by either side in proper legal
perspectives, I consider it pertinent, to restate, at the outset, the general
common law principles with relation to the law of Evidence, to the effect that
it is the party who asserts that has the legal duty to prove the correctness of
his assertion, and in most cases, that party is the Plaintiff or Claimant, as
the case may be (that is what is referred to as the legal burden).
Under the extant Evidence Act, in civil cases, the
burden of first proving the existence or non existence of a fact lies on the
party against whom judgment of the Court would be given if no evidence were
produced on either side, regard being had to any presumption that may arise on
the pleadings. (That is what is
referred to as the evidential burden). See the provisions of Sections 131 and 133 of the Evidence Act
2011. See also the relevant authorities of Adegoke V. Adibi [1992] 5 NWLR (Pt. 242) 410; University
Press Limited V. I. K. Martins Nigeria Limited [2000] 4 NWLR (Pt. 654) 584.
8. From time
immemorial, the general principles guiding the proof of a claim for termination
of employment have remained sacrosanct. It is the law that a Claimant who
alleges unlawful dismissal from employment must plead and prove the following
facts to succeed in his claim:
i.
That he or she is
an employee of the Defendant
ii.
Place before the
court the terms and conditions of his or her employment
iii.
State who can
appoint and who can remove him or her,
iv.
In what
circumstances his or her employment can be determined and
v.
In what manner the
said terms of the employment were breached by the Defendant.
See Oloruntoba - Oju V Abdul-Raheem
[2009] All FWLR (Pt. 497) 1 at 42; Imasuen V University of Benin [2011]
All FWLR (Pt.572) 1791 at 1809.
9. The Claimant in the instant case has sought from
this Court, among others, a declaration that his dismissal from the employment
of the Defendant is null and void; for an order compelling the Defendant to
reinstate him to his employment and for payment of all his salaries and
allowances due to him from the date of his dismissal. Therefore, the Claimant
is duty bound to prove the facts alleged by him that entitles him to the reliefs
sought. To establish that he was an employee of the Defendant, the Claimant
tendered Exhibits C2, C1 and C4 namely - Letter of Appointment as Court
Clerk, Letter of Promotion and Letter of Identification by NLC Screening
Committee respectively.
10. There is no dispute between parties that the Defendant
is a statutory body. From the facts of the case, the Claimant’s case is founded
on statutory employment and in such employment; the
staff cannot be validly removed from the employment unless the provisions
provided in the statute for removing the staff is followed strictly. See Adeniyi
V. Governing Council of Yaba College of Technology [1993] 6 NWLR (Pt. 300)
426; Oloruntoba-Oju V. Abdul-Raheem (supra) at 42. In other words,
for the Claimant to succeed in his claim, he must prove that the Defendant did
not comply with the procedure stipulated by law for his removal.
11. The testimony proffered by the Claimant
in proof of his case is his depositions in paragraphs
12 and 14 of his Statement on Oath,
which is more or less a verbatim reproduction of the averment in paragraph 8 of the Statement of Facts, which merely stated as follows:
Paragraph
12
“That
it was not disclosed to me that I committed any offence let only (sic) being
summoned to appear before any impartial panel”.
Paragraph
14
“That
due process was not followed before my appointment was terminated”.
The Claimant testified that he had served at
three different Chief Magistrate Courts in the Niger State Judiciary and that
he received Exhibit C3, a query dated 24/03/2010. Exhibit C6 was tendered
in evidence as his reply to the query and he also testified that no panel was
set up to interrogate him on the said query. The Claimant further testified
that on 21/09/2016, he was sent on an official assignment by the Registrar of
the Chief Magistrate Court, Nasko to process and obtain stationary from the Judiciary
Headquarters in Minna and that after obtaining the stationary items, he was
issued with a letter terminating his appointment. The copy of the letter for
the request for stationary and the letter of termination were tendered in
evidence as Exhibit C7 and Exhibit C5 respectively.
12. Now, the testimony of the Claimant
reviewed in the foregoing is to the extent, basically, that he was dismissed by
the Defendant.
I note that he failed to place before the Court the
due process to be followed and in what manner the employer breached his right
to fair hearing leading to his dismissal as he claimed. All that the Claimant stated with regard to
his allegation of his unlawful dismissal, when questioned under
cross-examination by the Defendant’s learned counsel, is as follows:
“I
confirm that the Complaint is a Declaration that the termination was in gross
violation of my right to fair hearing. Prior to the termination, I was served
with a query and I responded to this. I also appeared before an investigative
committee set up by the Defendant which was headed by DCR Hamza Muazu. I made
testimony before the committee. I also wrote to the CJ as the Chairman of NSJSC
wherein I stated all my position. Thereafter, my appointment was terminated by
the Defendant.”
13. It is therefore necessary at this
juncture to examine the defence offered by the Defendant for the Claimant’s
dismissal.
DW1 testified that the Claimant had received
several verbal cautions and queries for being absent from work without lawful
consent. The queries dated 24/03/2010 and 27/09/2004 were tendered in evidence
as Exhibit
C3 and Exhibit C9 respectively. DW1 further testified that because the
Claimant continued with this act of misconduct, he was invited on 18/07/2016 to
appear before the Committee and that he also testified before the Committee.
DW1 further testified that the Claimant was given fair hearing, and that the
record of sitting/report of the Committee was submitted to the Chief Registrar
who forwarded same to the Chief Judge as the Chairman of the Judicial Committee
of Niger State. DW1 also testified that the Defendant followed due process in
terminating the Claimant’s appointment. The Memo of the Chief Registrar
forwarding the report/complaint to the Chief Judge, the Minutes of the Committee
set up to investigate the conduct of the Claimant and the Report of the
Committee were tendered in evidence as Exhibit
D3, Exhibit D1 and Exhibit D2
respectively.
14. Now, permit me at this point to address
the contention of the learned Claimant’s counsel in his written Address on the
issue that Exhibit D1 - the Minutes of Investigation of the Committee is worthless
on the ground that same was not signed and therefore inadmissible.
The current and correct state of the law on
this issue was robustly settled in
Ezomo V. NNB PLC [2006] 14 NWLR (Pt. 1000) 442 at 651, where it was
held that:
"It is a cardinal rule of evidence
and of practice in civil and criminal cases that an objection to the
admissibility of a document sought by a party to be put in evidence is taken
when the document is offered in evidence. Thus, where objection has not been
raised by the opposing party to the reception of documentary evidence, the
document will be admitted in evidence and the opposing party cannot afterwards
be heard to complain about its admission, except for documents which by law are
inadmissible (consent of the parties notwithstanding) for failing to satisfy
some conditions or to meet certain criteria. Such exceptions include:
(a) Unregistered instrument required by
law to be registered;
(b) Unsigned deed of grant or copy
thereof;
(c) Unstamped instrument or document required to be stamped unless it may
legally be stamped after execution, and duties and penalties are paid.”
See
also Chief Bruna Etim & Ors V.
Chief Okon Udo Ekpe & Anor [1983] NSCC 86 at 95-96
15. In
the instant case, Exhibit D1 does not fall into any of the exceptions. The law
is settled that in both civil and criminal cases that objection to
admissibility of a document must be promptly raised at the point of tendering.
Where as in this case Exhibit D1 was tendered without an objection from
Claimant it is too late in the day to complain of inadmissibility of the exhibit.
The Claimant has waived his right to complain on its admissibility. The
contention as to the admissibility of the Exhibit D1 is clearly misconceived
and entirely without substance. And I so hold.
16. Now, on the basis of the evidence led by
both the Claimant and the Defendant, could it be said that due process was not followed
by the Defendant in dismissing the Claimant?
In
other words, the question to be resolved is not whether injustice has been done
because of lack of hearing but whether a party entitled to be heard before a
decision had in fact been given an opportunity of hearing.
17.
As I earlier noted, the Claimant merely made assertions of lack of due process
without prove of the particular process to be followed and how the process was
breached. The burden is on the Claimant to prove the declaration being sought
and that his termination was in gross violation of his right to fair hearing,
which is the crux of the case. The Claimant needed to have proved the authority to
appoint and remove him; the circumstances his employment can be determined, and
how the said terms of the employment were breached by the Defendant.
18. It
can also be clearly deduced, from the evidence of the Defendant, that indeed
the Claimant was given a fair hearing before his appointment was terminated.
The testimony of the DW1, as to the procedures taken to ensure that due process
was followed is as follows:
1. That
queries- Exhibits C3 and C9 were issued on the Claimant;
2.
That the Claimant made written response to the allegation – Exhibit C6;
3.
That as stated in Exhibit D3, a Committee was set up both to investigate the
complaint of the Claimant and to investigate the allegation of absenteeism
leveled against the Claimant.
4.
That by the minutes of the Committee (Exhibit D1), the Claimant and four other
witnesses appeared and testified before the Committee.
5.
That the report of the Committee was submitted to the Chief Judge and same was
forwarded to the Niger State Judicial Service Commission (the Defendant) which
has the constitutional power to appoint, dismiss and exercise disciplinary
control over members of staff of the Niger State Judicial Service Commission.
6.
That the Claimant’s appointment was terminated by the Defendant’s decision of
22/09/2016,
19.
The testimony of the Claimant while answering questions under cross-examination
by the learned Defendant’s counsel, further established that due process was
followed by the Defendant. His testimony is re-produced hereunder:
“The reason for termination
of my appointment was for absenteeism. A committee was set up and I appeared
before the Committee. I was queried and terminated for absenteeism.”
20.
The duty to prove the wrongfulness or nullity of the summary dismissal rests
with the Claimant, not the Defendant. See Ziideel V. RSCSC [2007] 3 NWLR (Pt. 1022) 554 SC, Morohunfolu
V. Kwara Tech.
[1990] 4 NWLR (Pt. 145) 506 SC, Ningi
V. FBN Plc [1996] 3 NWLR (Pt. 435) 220, Katto V. CBN [1999] 6 NWLR (Pt. 607) 390 SC, Adams
V. LSDPC
[2000] 5 NWLR (Pt. 656) 291.
21. The learned Claimant’s counsel had tried
strenuously to convince this Court in his written Address that the Claimant was
not given fair in the proceedings leading to the termination of his appointment.
However, nowhere in the proceedings was such evidence given or established. It is imperative at this point to restate the trite position of law that
no amount of brilliance in a written Address can make up for the lack of
evidence; a written Address cannot be a substitute for evidence. See Elumeziem & Ors V Amadi
[2014] LPELR 22459; Ekpeyong V Etim [1990]
3 NWLR (PT 140) 594; Niger Construction Ltd V Chief Okugbeni [1987]
4NWLR (Pt 67) 787.
Based on the foregoing therefore, I hold the
view that the Claimant has not successfully proved that his summary dismissal
was either wrongful or null and void.
22. The
Claimant also claims for salaries and allowances. I am also of the view that these
reliefs cannot be granted since these reliefs are hinged on the wrongfulness of
his summary dismissal.
23. In the final analysis, what the Court had
demonstrated, through the evidence led on record and the totality of the
circumstances of this case is that the termination of the Claimant by the
Defendant is valid. The final result therefore is that the case of the Claimant
must and hereby fails in its entirety. It is hereby accordingly dismissed.
24. Parties are to bear their respective costs.
SINMISOLA O. ADENIYI
(Presiding
Judge)
16/01/2019
Legal representation:
J. G. Taidi Esq. for the Claimant
Danladi Ahmad Esq. for the Defendant