IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE ABUJA JUDICIAL DIVISION
HOLDEN AT
ABUJA
BEFORE HIS LORDSHIP
HON. JUSTICE R. B. HAASTRUP
18TH
NOVEMBER 2025 SUIT NO: NICN/ABJ/253/2022
BETWEEN
PIUS
JOV KWADO ……………………………………………..…………………………….. CLAIMANT
AND
GWAGWALADA
SPECIALIST HOSPITAL …………………………………………….. DEFENDANT
LEGAL
REPRESENTATION
N. C. Nwachukwu
Esq. with S. M. Attah, J. A. Ukwede and N.N. Ogbehi for the Claimant
Reuben Kinya
Esq. with Daniel Alagor, Olayemi Afolayan, Adejumo K. Adeleye, Joan Ibrahim and
Udoejumunor Ojogbo for the Defendant
JUDGMENT
[1]
The Claimant commenced this suit vide a Complaint and Statement of Facts dated 22nd August,
2022, but filed 23rd August,
2022 claiming the following reliefs:
1. A
declaration that the Claimant's purported dismissal is illegal,
unconstitutional, null and void and of no effect howsoever.
2. A
declaration that the Claimant was not given fair hearing by the Defendant
before he was dismissed.
3. An order
of the Court reinstating the Claimant back to his position and service.
4. A
declaration that the Claimant is and remains as an employee of the Defendant
and should be allowed to continue his service.
5. A
declaration that the Claimant is entitled to and should be paid his emoluments,
salaries and all his entitlements due to him from November 2002, when his
employment was unlawfully terminated, till the date of judgment and final
liquidation of judgment.
6. A sum of
Ten Million Naira (?10,000,000.00) as general damages for the hardship,
embarrassments and inconveniencies occasioned to the Claimant by the action of
the Defendant aforesaid.
7. One
Million Naira (?1,000,000.00) cost of litigation.
[2] In response to the Claimant’s
originating processes, the Defendant’s counsel filed a Memorandum of Appearance
on 2nd February 2023, while the Statement of Defence and other
accompanying documents were filed 9th August 2023, which were all
regularised by order of Court made on 17th December 2024.
Thereafter, the Claimant filed his Reply to the Statement of Defence dated 19th January 2024
and filed 25th January 2024; and pleadings were closed.
[3] Hearing commenced with the Claimant
who testified as CW1 from 30th January 2024 to 21st March
2024, during which seventeen (17) documents were tendered through him, admitted
and marked as Exhibits C1-C17. On 17th July 2024, upon the
application of the Claimant counsel, the Defendant was foreclosed from opening its
defence for want of diligence. However, upon a subsequent application the said
foreclosure order was set aside on 17th December 2024. Thus, Defence
opened on 13th March 2025 with one Yusuf Hassan (Deputy Director
Admin.) testifying as DW1 and tendered exhibits D1-D5.
At the close of their cases, the Claimant’s
counsel filed his Final Written Address on 9th May 2025, the Defendant
having failed to file on time. The Defendant counsel filed his Final Written
Address on 16th May 2025 alongside a motion to regularize same,
which was deemed proper by Order of Court made on 10th July 2025.
The Claimant then proceeded to file his Reply Address on 26th May
2025 and the said Addresses were finally adopted on 25th September
2025, while the matter adjourned for judgment.
Claimant’s Case
[4] It is the Claimant’s
case that he got judgment against the Defendant on 12th May 2017
before Court 2 of the National Industrial Court Abuja in an earlier trial. However,
the Defendant appealed to the Court of Appeal and the Court held that the
failure of the Claimant’s counsel to sign the writ of summons was fatal and struck
out the case for lack of jurisdiction. Hence, the Claimant filed a fresh suit.
From
the pleadings, the crux of Claimant’s case is that he was employed by the Defendant
a body created by statute in 1994 as a higher dietitian, his appointment was ratified
and later confirmed in 1998. During his employment, he stated that he was promoted
to the position of dietitian on salary grade level HATISS 13.
According
to the Claimant, trouble began when his Head of department (HOD) one Halima
Audu developed a serious hatred against him resulting in his victimization,
spoiling his reputation on a false allegation of theft, absenteeism,
insubordination among others which eventually resulted in the Defendant losing
confidence in the Claimant. That he was finally dismissed from the service of
the Defendant without fair hearing, which has now formed the basis of his suit.
Defendant’s
Case
[5] In defending this
suit, the Defendant stated that the Court of Appeal in its judgment delivered
on the 25th May, 2022 struck out the Claimant's suit for being
fundamentally defective and thereby robbing this Honourable Court of
jurisdiction to determine the suit on its merits, as such, the Claimant is
estopped from relitigating the suit.
The
Defendant denied the allegation of want of fair hearing stating that in due
compliance with the Civil Service Rules and University Teaching Hospital
(Reconstitution of Boards) Act, it set up a Panel which only investigated the
allegations of misconduct made against the Claimant and not for any crime
involving theft, embezzlement and corruption.
The
Defendant maintained that the Claimant was given an opportunity to appear
before the staff disciplinary committee on July 24, 2001, where he gave an
account of all he knew about the allegations levelled against him. Defendant
alluded that its disciplinary committee made use of credible reports from Claimant’s
HOD (Mrs. Halima Audu) which was based on a detailed security report from the
security department of the Defendant, to find Claimant guilty of misconduct
(which includes extreme aversion to authority, disobedience, absenteeism among
others which resulted in his dismissal.
Claimant’s Counsel Final Written Address and Legal
Submissions
[6] The Claimant’s counsel in his
final written address distilled three (3) issues for determination to wit;
1. Whether
the criminal allegations as contained in the dismissal letter of the Claimant
wherein an administrative panel (Hospital disciplinary committee) was set up to
investigate and try the Claimant had the criminal jurisdiction to do so. And
whether the Claimant was given a fair hearing by the panel?
2. Whether
the employment of the Claimant had the (sic) statutory flavor or not. And if it
had, was the Claimant’s dismissal in accordance with the relevant laws?
3. Whether
the Claimant is entitled to the relieves (sic) sought before this Honourable Court?
Issue one
[7] Claimant counsel submitted with
regard to the first issue that when the allegation against an employee
border on crime, the law requires that no disciplinary action can be taken by
any administrative body or tribunal against such employee until he has been
charged to and convicted by a Court of competent jurisdiction. He relied on the
cases of SAMSON BABATUNDE V. AFRIBANK NIG PLC (2001) 7SCNJ 493; GARBA V.
UNIMAID. (1986) 1 NWLR (PT.
18) 550 @ 584 and PSYCHIATRIC HOSP. MGT BOARD
V. DORIS EDOSA (2001) 5 NWLR (PT. 707)
612.
Regarding the instant case, counsel posited that
while Claimant was initially charged to Court alongside another staff by name
Mr. Cyril, the latter pleaded guilty to the allegations while Claimant denied
same. He stated that the above informed the decision of the Defendant to
withdraw the case against the Claimant and proceed against him administratively
as seen in exhibit P.13.
According
to Claimant’s Counsel, there were four criminal allegations against the Claimant
even though his dismissal letter read 10 counts which were:
1. Theft of
air conditioner.
2. Theft of
two tins of Nescafe, groundnut, sugar (one mudu) and a close-up toothpaste.
3. Corruption
and embezzlement of the sum of fifty thousand naira (1450, 000) (sic).
4. Dishonesty.
He insisted
that such serious criminal allegations ought to have been tried by a criminal Court
of competent jurisdiction contrary to what was done by the Defendant’s
Disciplinary Committee which found him guilty and convicted him also. He then
referred the Court to Exhibits D3 and D4 which contained the panel
report together with the procedure of the trial by the panel. He cited the case
of ANAKISM V. UBA LTD (1994) 1 NWLR (PT
322) 557 at 567-568 to substantiate
his arguments.
[8] Still
stressing on the seriousness or gravity of crime, counsel here referred to the
punishment for the offence of theft by Section 287 of the penal code
which carries a 5-year imprisonment term. He posited that all the other
offences of dishonesty, corruption and embezzlement are equally serious
criminal allegations that can only be tried in criminal Courts, which he stated
is the case when it pertains to corrupt politicians. Thus, Claimant counsel
submitted that the University Teaching Hospitals (Reconstitution of Boards etc.)
Act Cap. U15 LFN 2004, the Public
Service Rules and the Criminal Procedure Code never gave the Hospital
Disciplinary committee power to try any criminal allegation. Therefore, that
the contents of the dismissal letter are ultra vires of the powers of the
disciplinary committee and the Defendant. In the end, he prayed the Court to
resolve issue one in his favour.
Issue Two
[9] Regarding issue two, it was the
submission of Claimant’s counsel that a statutory employment is one in which the
contractual relationship between the employer and the employee is governed by
statutes or regulations derived from statutes. That any action to terminate the
employee’s service must comply with the statute, otherwise, the termination
would be null and void and the employee would be entitled to remain in his employment.
He placed reliance on the authorities of VINE V. NATIONAL DOCK LABOUR BOARD (1959) 3 ALL ER 939; SHITTAL-BAY V.
THE FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC. 40, (1981) NSCC 19 and ADENIJI V. GOVERNING COUNCIL YABA-TECH
(1993) 6 NWLR (PT. 300) 426 @ 456.
Flowing from the above, Claimant’s
counsel argued that Claimant’s employment was regulated by statutes, referring
the Court to exhibits P.9-P.12 and that the Claimant was not dismissed in
compliance with the relevant statutes. That Exhibit P9, paragraph (2)(vii)
contained the law governing the appointment, discipline and other activities of
the Claimant, which gave birth to the University Teaching hospitals
(Reconstitution of Boards etc.) Act cap 460, LFN 1990 (now known as University
Teaching Hospitals (Reconstitution of Boards etc.) Act Cap. U15 LFN 2004).
[10] It was contended
that by virtue of section 9. (1) (a) of the law, Defendant was supposed to
issue the Claimant with a notice to appear before the disciplinary panel
stating the reasons why he was to be disciplined. That the letter of invitation
issued him to appear in 5 days did not state any reason for such, which the counsel
opined is contrary to the principles of fair hearing.
Furthermore, that
section 9 (1) (b) of the Act, requires that the Claimant be afforded an
opportunity of making representations in person on the matter to the board.
However, that he was notified by a letter dated 19/7/2001 while the Claimant
was to appear on the 24/7/2001, hence the 5 days period given was not
sufficient for such serious criminal allegations against him and in his
opinion, Defendant went contrary to the provisions of section 36 (6) (b) & (c)
of the Constitution of the Federal Republic of Nigeria 1999 (As amended).
[11] He further
emphasized on Claimant’s employment being one covered by statutes, with reference
to section 318 of the 1999 Constitution (As amended) which defined
public service as "public service
of the Federation in any capacity in respect of the government of the
Federation" and include inter alia (e) staff of any statutory
corporation established by an Act of the National Assembly: to which counsel
stated that the Defendant is one of such and by extension the Claimant whose
employment is supported by Exhibits P.9
–P.13, enjoys a special status over and above the ordinary master
servants relationship. He then cited the case of OLORUNTOBA-OJU V. ADULRAHEEM (2009) 6 SCNJ 1 @ 44 in support.
That even though the Defendant set up a
disciplinary committee in accordance with the public service rules, the
committee did not comply with the said PSR in that, the invitation letter to
the Claimant did not contain any complaint against the Claimant as required in
section 3 (030305) & section 9 University Teaching Hospitals (Reconstitution
Board) Act. Also, that Claimant was supposed to be notified of the grounds to
discipline in writing in accordance with section 3 (030307) (ii), (vi) and
(vii) of the PSR. That because he was tried within a few hours, he was not
afforded the opportunity of cross-examining witnesses and defending himself in
line with section 3 (030307) vii.
Arising from the above, Claimant’s counsel urged the Court to resolve the
issue in Claimant’s favour, while submitting that that Defendant failed to
comply with the relevant laws in trying and dismissing the Claimant. It is
also, Counsel’s further submission that Defendant flouted the principle of fair
hearing, the Defendant having acted as both
the prosecutor and judge, which is contrary to the principle of nemo judex
in causa sua, relying on UNIVERSITY
OF ILORIN V. AKIROGUNDE (2005) 29 WRN 91 @ 121.
[12] Claimant counsel specifically alluded that the Claimant was not
allowed to cross examine Mrs. Halima Audu (His HOD), as the modus operandi of
the Defendant was to call one person at a time and that he had complained about her as being the source of his
problem. Counsel therefore urged the Court to resolve the issue in Claimant’s favour
and hold that his employment is regulated by statute.
Issue Three
[13] Regarding issue three, which borders on the success of Claimant’s
reliefs before the Court, the counsel posited that the said reliefs are rightly
covered by statutes and a plethora of judicial authorities. He referred to the
cases of CBN V. IGWILLO (2007) 25
WRN 1 @ 26, UDO V. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 22 WRN 53 or
(2001)14 NWLR (PT. 732) 116, among
others to the effect that the law is well settled that where an
employee's service is protected by statute and his employment is wrongly
terminated, he would be entitled to reinstatement to his office and in
addition, damages representing his salaries during the period of his purported
removal.
Thus, counsel
answered the instant issue in the affirmative while adding that the Claimant
has been able to show that his employment was one of statutory flavour and that
he was not afforded fair hearing before his dismissal by the Defendant.
In conclusion, Claimant
counsel argued that having proved his case, the Claimant is entitled to all the
reliefs sought from the Court, his evidence having not been challenged by the Defendant
stands as admitted.
Defendants’ Counsel Final Written Address and
Legal Submission
[14] Defendant counsel submitted two issues
for the resolution of the Court hereunder reproduced thus:
1.
Whether having
regard to the facts and circumstances of this case, the Claimant was afforded
fair hearing by the Defendant before his dismissal?
2.
Whether the Claimant
has proved his case and is therefore entitled to any of the reliefs sought.
However, before presenting any submissions on the
above, he sought to address some preliminary issues first as surmised
below.
Challenge to the Jurisdiction of Court to Hear and Determine this Suit
[15]
Arguing on the above issue of jurisdiction, counsel to the Defendant submitted
that jurisdiction of a Court to entertain a suit brought before it is a fundamental
and threshold matter. That this is because where a Court lacks the jurisdiction
to entertain a matter brought before it, any proceeding conducted in that
matter remains a nullity, an exercise in futility and waste of judicial time
which was the holding of the Supreme Court in A. G. FED. V. A. G., ANAMBRA
STATE (2018) 6NWLR (PT 1615) 314 @ 337, PARAS. A-D. Equally, that the
Supreme Court has in a plethora of decisions set out the conditions that must
exist for a Court to exercise jurisdiction to entertain a matter competently. He
relied on NIGERIAN ARMY V. ABUO (2022) 12 NWLR (PT. 1844) 349 @ 366, PARAS.
B – E where the Apex Court enumerated the conditions as follows;
(a) It must be properly constituted as regards numbers
and qualification of the members of the bench, and no member must be
disqualified for one reason or another.
(b) The subject matter of the case must be within
its jurisdiction, and there must be no feature in the case which prevents the Court
from exercising its jurisdiction.
(c) The case must come before the Court initiated
by due process of law, and upon fulfillment of any condition precedent to the
exercise of jurisdiction.
[16]
Defendant’s counsel posited that applying the above to the instant case, the
fact that in the matter before the Court of Appeal, the Appellate Court held
that this
Honourable Court lacked jurisdiction to entertain the suit since the
originating Writ of Summons was not duly signed by a legal practitioner as
required by law, hence it goes
to the root of the Court’s competence
to hear and determine the matter, which is binding and conclusive unless
set aside on appeal. He cited the case of ABUBAKAR
V. B.O.A.P. LTD. (2007) 18 NWLR (Pt. 1066) 319 @ 368, PARAS. E–F.
That by re-filing the present action after the Court of
Appeal had pronounced that the originating process in the earlier suit was
incurably defective and robbed the Court of jurisdiction, the Claimant is
seeking to relitigate an issue that ought to have been pursued through the
appellate channel, which in his opinion amounts to an abuse of judicial process.
Counsel referred he Court to paragraphs 2, 3 and 4 of the Defendant’s
Statement of Defence filed on 9th August, 2023 wherein Defendant
challenged the jurisdiction of the Court based on the Court of Appeal judgment
of 25th May, 2022 and the case of MATTARADONA V. AHU (1995) 8 NWLR (PT. 412) 225 P. 241, PARAS. B-C.
He thus urged the
Court to decline Jurisdiction in this suit.
Objection to Admissibility of
Documents
[17] Under this heading, counsel sought to challenge
the admissibility of all documents tendered by the Claimant having raised
objection thereto in the Court’s proceedings of 30th day of January, 2024, and having
been granted leave to address it at the stage of Final Addresses. Consequently, the Court proceeded to provisionally admit the said
documents as follows:
i.
Certified True Copy of Letter titled “Missing
Items” dated 28th March, 2000 -Exhibit C1
ii.
Letter dated 10th June, 2000 - Exhibit C2
iii.
Petition dated 12th May, 2000 - Exhibit C3
iv.
Re-Letter of Query dated 20th November,
2000 - Exhibit C4
v.
Notification of vacation Leave - Exhibit C5
vi.
APER - January, 1995 – December, 1995 - Exhibit C6
vii.
APER - January, 1996 – December, 1996 - Exhibit C7
viii.
Cash Receipt dated 26th August, 2021 - Exhibit
C8
ix.
Letter of Provisional Appointment - Exhibit C9
x.
Letter of Pensionable Appointment - Exhibit C10
xi.
Ratification of Appointment dated 20th
February, 1998 - Exhibit
C11
xii.
Confirmation of Appointment 16th
September, 1998 - Exhibit
C12
xiii.
Letter of Promotion 29th September,
1999 - Exhibit
C13
xiv.
Re-Suspension from duty 29th June, 2000 - Exhibit C14
xv.
Letter of Query 13th November, 2000 - Exhibit
C15
xvi.
Statement of Complaint - Exhibit
C16
xvii.
Dismissal from service 11th November,
2002 - Exhibit C17
[18] He
posited that the Evidence Act, 2011 (As Amended), governs
the admissibility of any evidence in Court proceedings; however, any
inadmissible evidence cannot be rendered admissible even if it is properly
pleaded by the party seeking to rely on it. He cited the case of YERO V. UBN LTD (2000) 5 NWLR
(PT. 657) 470 P. 479, PARAS. E-G.
Also, that the documents admitted as Exhibits C1 to C17 are public
documents within the meaning and contemplation of section 104 (1) and (2) of the Evidence Act, 2011, while Claimant tendered
photocopies of same instead of the originals or certified true copies as
required by section 104 (2) of the Evidence Act 2011. Counsel further relied on
the case of GUSAU V. LAWAL (2023)
10 NWLR (Pt. 1892) 297 and IORAPUU V. STATE (2020) 1 NWLR
(Pt. 1706) 391 PGS. 411-412, PARAS, F-F
to fortify his submissions. Thus, that the failure of the Claimant to comply with these clear and
mandatory provisions of the Evidence Act renders Exhibits C1 - C17 legally
inadmissible and the necessary consequence, is for the Court to expunge them from its record as inadmissible
evidence in line with the authority of DICKSON
V. SYLVA (2017) 8 NWLR (PT. 1567) 167 @ 211, PARAS. C–E.
[19] Defendant
counsel then submitted that should the Court in the unlikely event find that
the documents are admissible, it should discountenance them on the basis that
no proper foundation was laid before tendering them since the Claimant is
neither the maker of the documents nor established to be in custody of them.
This he submits does not align with Section 83 (1) (b)
of the Evidence Act, 2011.
He concluded his arguments on the issue by urging
the Court to uphold his objection and expunge the said exhibits C1-C17.
Arguments
on Issue One
[20] It was Defendant’s counsel submission that the principle of fair hearing, as enshrined in Section 36 (1) of the 1999 Constitution (as
amended), guarantees that every person is entitled to be heard before
any decision affecting their civil rights and obligations is made. That what it
requires is affording a party the opportunity to explain or defend himself, and
if such a party fails to take such an opportunity, the party cannot later
complain of a denial, citing in support the cases of P.D.P. V. INEC (2012) 7 NWLR (PT. 1300) 538 @ 582, PARAS. F–G; ZAKARIYA
v. NIGER CONST. LTD. (2000) 4 NWLR (PT. 654) 540 @ 550.
Relating the above principle to the instant case, Defendant counsel
argued that there is evidence showing Claimant was invited to appear before the
Defendant’s Staff Disciplinary Committee on 24th July, 2001; he
appeared and made representations in response to the allegations against him.
Thus, he stated that the disciplinary process followed by the Defendant
strictly complied with the extant Civil Service Rules and the University
Teaching Hospital (Reconstitution of Boards) Act, upon which a report was made
and it reached its decision. Further reliance was placed on the authorities of AIYETAN
V. NIFOR (1987) 3 NWLR (Pt. 59) 48 and BABA V. N.C.A.T.C. (1991) 5 NWLR (PT.
192) 388.
[21] What’s more,
counsel emphasized that the disciplinary proceedings against
the Claimant were not criminal in nature and thus there was no need for
Committee to observe the strict rules of criminal trial which requires proof
beyond reasonable doubt. That having been afforded the opportunity to ventilate
his grievance through proper legal process, the Claimant cannot turn around to allege that fair
hearing was denied merely because the outcome of the case was not favourable,
while relying on the authority of DOKUBO-ASARI
V. FRN (2007) 12 NWLR (PT. 1048) 320 @ 349. He urged the Court to hold that the requirement of fair hearing was
fully complied with and that the complaint of denial (if raised) is unfounded, speculative and misconceived.
[22] Arguing further on denial of fair hearing, Defendant counsel
submitted that the law is settled that where a party alleges that
he was denied fair hearing, he is saddled with the burden of proving specific
facts of such denial as alleged, citing relying on the cases of OKOYE v
NWANKWO (2024) 15 NWLR (PT. 1429) @ 93 SC PARA. C and JOLASUN V. BAMGBOYE
(2010) 18 NWLR (PT. 1225) @ 285.
In a bid to knock
off the complain of the Claimant that he was not given fair hearing, the
Defence argued that in the determination of a statutory employment as that of
the Claimant, what was required are as follows;
a.
Invitation of the affected employee to a
disciplinary committee or panel of enquiry.
b.
Reading the allegations against the employee
to him and allowing him to state his defence to the charge.
c.
Taking witnesses in the employee's presence
and allowing him/her to cross-examine the witness.
d.
Decision of the committee/Panel and
communication to the employee.
He maintained that parties are ad idem on the fact that the Claimant
was duly invited to the staff Disciplinary committee of the Defendant, where
the allegations against him were considered as evidenced in Paragraph 15 of the
Statement of Claim and paragraph 24 of the Defendant’s Statement of Defence.
Also, that Claimant did not deny that the allegations against him were read out
to him, that he was present throughout the Disciplinary Committee's sitting and
given the opportunity to defend the allegations levelled against him. Hence,
that such facts having been admitted need no further prove as held in CHINWO & ORS V. CHINWO & ANOR (2010)
LPELR – 9113 @ 9- 10 PARAS. E- A.
Finally on this leg of contention, counsel here urged the Court to find that Claimant’s
contention of denial of a fair hearing does not hold water.
[23] Regarding
the Claimant’s contention that the allegations against him were criminal in
nature and ought to have been tried by a Criminal Court, Defendant counsel
argued to the contrary that the Disciplinary Committee of the Defendant having
acted within the purview of its powers and gave Claimant ample opportunity to
make representation before his dismissal, he cannot claim that his right to
fair hearing was denied. Also, that the Defendant’s Staff Disciplinary
Committee only investigated the allegations of misconduct against the Claimant
and handed down the appropriate administrative sanctions as required by the
Civil Service Rules. The case of U.B.A.
PLC V. ORANUBA (2014] 2 NWLR (PT. 1390) PG.1 @ PG. 42 PARA C-D, was relied upon to substantiate his
position. He urged the Court to resolve issue one in favour of the Defendant.
Arguments
on Issue Two
[24] This issue
borders on proof of entitlement to the reliefs sought before the Court and
relying on the authorities of MATANMI V. DADA [2013] 7 NWLR
(PT. 1353) PG. 319 @ PG. 330 PARA C-D and TUMBIDO V. I.N.E.C. (2023) 15 NWLR
(Pt. 1907). The Defendant counsel
posited that declaratory
reliefs are not granted on admission or failure of the Defendant to call
evidence or defend the Claimant’s claims at the trial. This is because
with or without the admission or defence, the duty on the Plaintiffs to prove
their entitlement to the declaratory relief on their own pleading and evidence
remains unshaken and does not change.
Counsel
submitted that none of the documents tendered by the Claimant disproved any of
the three issues on which the Claimant’s dismissal was based, and neither did
the documents show Claimant was denied fair hearing to justify the grant of the
declarations sought. Claimant did not by any credible evidence show that he was
granted leave to be absent for the period he was absent from work, nor did he
establish any reason for the Court to grant him the order of reinstatement back
into the employment of the Defendant. He cited in support the cases of ISIEVWORE
v NEPA [2002] 13 NWLR (Pt. 784) pg. 417 SC @ 436, PARA D- G AND C.D.C. (NIG.)
LTD V. SCOA (NIG.) LTD [2007] 6 NWLR (PT. 1030) PG. 300 SC @ 366 PARA E.
[24] It is Defendant’s
counsel further submission that the circumstances of the Claimant’s employment place
him in a master-servant relationship with the Defendant who by reason of
judicial authorities have the power to hire and to terminate
same employment and also that the Courts will not impose a willing employee on
an unwilling employer, citing the authority of DUDUSOLA V. N. G. CO. LTD (2013) 10 NWLR (PT. 1363) 436 PARA E and EKUNOLA V. C. B. N (2013) 15 NWLR (PT.
1377) 268 PARA. D.
Thus,
it was concluded by the Defendant counsel that the Claimant has not complied
with a fundamental requirement for the proof of a claim of wrongful dismissal
and as such he urged the Court to hold that this suit cannot succeed.
Claimant’s
Counsel Reply on Points of Law
[25] Responding to
the issue of challenge to the jurisdiction of this Court to hear and determine
this suit flowing from the judgment of the Court of Appeal, Claimant’s counsel
contends that contrary to the submission of the Defendant counsel, the decision
of the Court of Appeal striking out the suit at the trial Court did not prevent
him from relitigating the said action. He contended that the authority of ABUBAKAR V.
B.O.A.P. LTD (2007) 18 NWLR (PT.1066) 319 @ 368, relied upon by the
Defence was based on res judicata which he opined is different from the Claimant’s
case, which was struck out on the ground that a condition precedent to the
commencement of the action was not fulfilled; to wit, the signing of the Writ
of Summons and thus affecting the exercise of the jurisdiction of the trial Court.
Counsel thus argued
that the Claimant still has another opportunity to reopen or refile the action
after rectifying the defect that resulted in it being struck out. He relied on
the authority of PANALPINA WORLD TRANSPORT (NIG) LTD V. J. B.
OLANDEEN INT’L & ORS (2010) lpelr-2902 (SC) (PP.24, PARA. B).
[26] Reacting to Defendant’s counsel
objection on the admissibility of exhibits C1-C17, it is the position of Claimant’s
counsel that Claimant had laid foundation as to the whereabouts of the original
when he stated that having been tendered in evidence at the initial trial, they
were lost at the Court of Appeal when the matter went on appeal. Thus, that the
NICN duly certified same since the original were in its custody.
[27] In further reaction to the issue
of fair hearing, Claimant’s counsel rehashed his submissions on the failure of
the Defendant affording him fair hearing, insisting that he was not aware of
the charges against him as per the invitation letter given to him, that he was
not allowed to cross examine witnesses (i.e. Mrs. Halima Audu, his HOD) because
only one person was called in at a time by the procedure adopted by the
Disciplinary Committee and neither was he communicated as to the outcome of
their decision until he was handed down his dismissal letter vide exhibit C17.
He cited the case of JUDICIAL SERVICE COMMISSION & ORS V. DR. (MRS.)
ASARI YOUNG (2013) 5 SCNJ 82, to emphasize the need for Administrative
bodies acting in quasi-judicial capacity to follow the principles of fair
hearing, urging the Court to resolve the issue in Claimant’s favour.
In concluding his arguments, counsel
contended strongly that the Claimant had proved his case before Court on the
basis of his previous submissions and urged the Court to grant his reliefs.
DECISION
[28] I have in the course of
conducting the entire proceedings in this matter and now writing this judgment
taken time to peruse the various documents filed and tendered by the parties as
well as listened carefully to their oral evidence and submissions. I am of the
view that the pertinent issues which are apt for the resolution of this case
are:
Issues for Determination
a.
Whether the termination of Claimant’s employment by the Defendant was
done in accordance with proper procedure?
b.
Whether the Claimant is entitled to the reliefs sought?
[29] I shall however commence this
decision by first resolving the two preliminary
issues raised by Defendant’s counsel in his final written address bordering
first on the jurisdiction of this Court to hear and determine Claimant’s case
and as it pertains to the admissibility of Claimant’s exhibits C1-C17, before
delving into the substance of this case, if need be.
Resolution of Preliminary Issues
Resolution of Defendant’s Counsel Objection on Jurisdiction of the Court
[30] The Defendant had at paragraphs 2-4 of its Statement of Defence challenged
the Claimant’s suit as being incompetent and that this Court lacks the
jurisdiction to entertain same in view of the decision of the Court of Appeal
in SUIT NO: CA/A/414/2017 between the same parties which was an offshoot from
an earlier trial. That the Court of Appeal having struck out the suit before
the trial Court for failure of the Claimant or his counsel to sign the
Originating process, he is estopped from relitigating the suit. Claimant
counsel has argued to the contrary, positing that the striking out of the suit
was merely as to a defect in the procedure of commencement of the action, which
did not go into the merits of the case, hence, that Claimant’s cause of action
has not been extinguished.
After
considering the facts and circumstances of this objection alongside the
authorities relied upon by each of the parties, I observed that a copy of the Court
of Appeal Judgment referred was not forwarded to the Court, nor a citation of
same in any law report. I sought for it and the Claimant counsel eventually
made a copy of same available to the Court.
[31] I had
gone through the judgment in question and found particularly at pages 14-16
thereof that the Court of Appeal having found that the originating process was
never signed and that the trial Court lacked jurisdiction to hear and determine
same held thus;
“The action is deserving of an order
of striking it out for being incompetent. In the circumstances, all the
proceedings which rested on the incompetent Complaint are deemed not to have
taken place in law.”
In
addition, the Court went on at page 17 of the said judgment to hold as follows;
“I am well aware of the postulation
that this Court as an intermediate appellate Court has a duty to consider and
determine all issues properly raised before it: however, in certain
circumstances a consideration of all the issues raised may be dispensed with.
This includes where an order for retrial is considered desirable or where the
decision appealed against is declared a nullity. In which case there will be no
need to pronounce on the other issues flowing from the trial declared a
nullity, which issues could possibly arise at a retrial or fresh action…..I
iterate that the manner of the resolution of the Appellant’s issue number one
and the order made declaring the trial a nullity makes inutile the
consideration of the other issues thrust up for determination in this matter….”
(PER. U. A. OGAKWU JCA).
Flowing
from the above, it can be deduced that because the Court of Appeal had declared
the initial trial a nullity (because the Complaint was not signed), the Claimant
was given an opportunity of filing a fresh action for the resolution of the
substantive issues arising from his claims. I so hold.
In view of what
I have stated above, I find the Defendant’s objection to be unfounded and
lacking in merit. It is hereby dismissed.
Resolution of Defendant’s Counsel Objections to the Admissibility of Claimant’s
Exhibits C1-C17
[32] Starting with Claimant’s exhibits C1-C17, it will be recalled that
learned counsel to Defendant objected to their admissibility on the basis that being
public documents, they were not certified and no foundation was laid before
tendering them. This is in addition to the claim that the Claimant was neither
the author of the documents nor showed that he was in custody of the originals.
Claimant on the other hand contends that the exhibits were duly certified by
this Court, the originals having been tendered in an earlier trial before the
then Court 2 and that because the matter went on appeal to the Court of Appeal,
the originals got lost there.
It is without any shred of doubt that in proving a fact contained in a
public document, the original may be tendered as primary evidence, and only a
certified true copy of same can be tendered as secondary evidence and no other.
See section 89 of the Evidence Act and the case of AROMOLARAN V. AGORO (2014) 18 NWLR (PT.1438)153 @ 170, PARA. G-H and
GUSAU V. LAWAL (2023) 10 NWLR (PT. 1892) 297.
[33] I have carefully perused through the said exhibits under scrutiny
and observed that the following exhibits:
i.
Certified True Copy of Letter titled “Missing
Items” dated 28th March, 2000 - Exhibit C1
ii.
Letter dated 10th January, 2000,
Missing Air conditioner - Exhibit C2
iii.
Petition dated 12th May, 2000 - Exhibit C3
iv.
Re-Letter of Query dated 20th November,
2000 - Exhibit C4,
were all authored by the Claimant. This simply
means that the copies of such documents with him are nothing but private
documents which need no certification at all. The law is trite that in proving facts contained in a private document, the original (which
is the document itself) may be tendered as primary evidence or any other form
(be it oral or documentary) may be tendered as secondary evidence. See section
89 and 90 (1) (a) of the Evidence Act. Thus, it is my finding that certifying
the above documents was needless and that their admitting them in evidence was
rightly done, as proper foundation was also laid in explaining how the originals
got lost. See also pages 25-26 of the Record of Proceedings, as I so hold.
[34] Regarding the
underlisted to wit:
v.
Notification of vacation Leave - Exhibit C5
vi.
Cash Receipt dated 26th August, 2001 - Exhibit
C8
vii.
Letter of Provisional Appointment - Exhibit C9
viii.
Letter of Pensionable Appointment - Exhibit C10
ix.
Ratification of Appointment dated 20th
February, 1998 - Exhibit C11
x.
Confirmation of Appointment 16th
September, 1998 - Exhibit C12
xi.
Letter of Promotion 29th September,
1999 - Exhibit
C13
xii.
Re-Suspension from duty 29th June, 2000 - Exhibit C14
xiii.
Letter of Query 13th November, 2000 - Exhibit
C15
xiv.
Dismissal from service 11th November,
2002 - Exhibit C17
They all reveal
that the documents were addressed to the Claimant and as such I find that even
though the source or authors were public bodies like the Defendant, the copy
addressed to the Claimant and in his possession stands as a private document
which need not be certified, hence this Court resolves that the documents were
rightly admitted in evidence by the Court, while Defendant’s objection fail in
this regard.
[35] Then for exhibits
i.
APER - January, 1995 – December, 1995 - Exhibit C6
ii.
APER - January, 1996 – December, 1996 - Exhibit C7
iii.
Statement of Complaint - Exhibit C16
A
careful study of them shows that they are nothing short of public documents as
they were authored by public bodies and not addressed to the Claimant nor kept
in his custody, though pertaining to the Claimant’s interests. I am not
oblivious of the fact that Claimant had earlier sought to lay foundation as to
the originals of the said documents which were tendered in a previous trial in
this Court. I should however state that exhibits C6 and C7 being APER Forms
from the Defendant as well as Exhibit C16, being a record of proceedings of the
High Court of the FCT sitting in Gwagwalada; the originals of same could
definitely not be in custody of the National Industrial Court, save the CTC.
That being the case, I find that only the authors or custodians of the originals
of those documents can certify them and not this Court. That being said, the
said exhibits C6, C7 and C16 having been wrongly admitted, they are hereby expunged
from the record. I so hold. See the case of STATE V. LABBO (2023) 14 NWLR (PT.1093) 31 @ 54,
APARA. G-H.
Resolution of Main Claim
Issue One
[36] It is trite that in civil cases, the onus
of proof lies on a party who will lose if no evidence is adduced at all, while
the burden of proving a fact rests on the party who asserts the affirmative of
the issue and not upon the party who denies it. See sections 131-133 of the
Evidence Act and the case of NITEL LTD.
V. OKEKE (2017) 9 NWLR (PT.1571) 439 @ 462, PARAS. G-H.
The law is settled that where an employee
complains of a breach in the terms of his employment, he needs to place before
the Court the document or documents that contain the terms and conditions of
his employment as it is
what regulates the relationship between the parties which is binding on them
and the Court will not look outside of it to determine their rights and
liabilities. See the cases of OFORISHE
V. NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PT. 1602) 35 @ 53 PARA. D; OLANREWAJU V. AFRIBANK (NIG) PLC (2001) 13
NWLR (PT.731) 691 PG. 712 PARA. C.
[37] With regard to Claimant’s reliefs 1 and 2
which in my view are the principal reliefs, which are for declarations that Claimant’s
dismissal was illegal, null and void; Claimant counsel had contended that the
procedure leading to his dismissal was without due regard to the principles of
fair hearing.
It is trite that in statutory employments or even
those with constitutional backing, in the event of determination, there must be
strict adherence to the provisions governing the contract of employment,
otherwise, the termination or dismissal of the employee will be invalid, and
the employee will have the right to be reinstated unless and until his/her
employment has been properly determined. See ISIEVWORE –OBU VS. N.E.P.A (2002) 2 NWLR (PT.805) 589; MENAKAYA VS.
MENAKAYA (2001) 16 NWLR (PT.738) PG. 203; IDERIMA V. R.S.C.S.C, (2005) 16 NWLR
(PT. 951) 378.
[38] It should as a matter of
importance be noted that the right to discipline of an employee for any
infraction or breach of the terms of his employment rests in the bosom of his
employer. However, such exercise of disciplinary powers must be done in
accordance with laid down Rules and procedure in such a manner that the
principles of natural justice will be seen to have been observed. See the case
of DARMA
V. ECOBANK NIG LTD (2017) 9 NWLR (PT.1571) 480 @ 502, PARA. B.
[39] The Claimant’s first leg of contention on
the issue of fair hearing is that he was tried on criminal charges including
theft, embezzlement, corruption, dishonesty etc., by an Administrative Panel of
the Defendant (i.e. its Disciplinary Committee) which he argued was contrary to
standing constitutional and judicial authorities. The Defendant however denied
the assertion of trying Claimant on allegations of crime, rather, that it was
for allegations of misconduct and not a criminal trial as alleged by the Claimant,
this Defendant counsel argued can only stand if Claimant shows that the Defendant
acted outside the purview of their authority which he stated is not the case.
[40] As borne by the pleadings and evidence
before this Court, the Claimant had adduced evidence as to the terms and
conditions of his service being governed by the Civil Service Rules or
University Teaching Hospitals (Reconstitution Board) Act in addition to his
letters of employment, Ratification and confirmation admitted as exhibits
C9-C12. Meanwhile, the provision of PSR Rule 030411(a) provides thus:
“Nothing shall prevent disciplinary action being taken or continued
against an officer whether or not-
i.
Criminal proceedings have been
instituted with respect to such a person in any Court of law in Nigeria or
elsewhere or are about to be instituted or are contemplated; or
ii.
The grounds upon which any criminal
charge are based or are to be based are substantially the same as those upon
which the disciplinary proceedings were or are to be instituted.”
The above provisions have settled the
issue and it is needless to state that the Defendant herein did not contravene
any law when they proceeded to take disciplinary action against the Claimant
for the allegations levelled against him, especially as the allegations of
dishonesty, embezzlement, corruption among others all fall under acts of
misconduct or gross misconduct in the civil service, I so hold. In other words,
it is erroneous thinking that once an employee commits acts of gross misconduct
which also discloses criminal offences, the employer must wait for the outcome
of a criminal prosecution of the employee before a Court of competent
jurisdiction before proceeding to discipline him under the contract of service
or employment.
[41] Next, is the assertion that
invitation letter sent to the Claimant did not contain the complaint against
him as required by section 3 Rule 030305 & section 9 of the University Teaching Hospitals (Reconstitution
Board) Act. It is on record that the Claimant at several times between 1995 to
2000 was issued a number of queries and placed on suspension on suspicion of
theft, absenteeism, corruption etc. (See exhibits C4, C14, C15 and D5). The Claimant
was finally invited to a Disciplinary hearing vide a letter dated 19th
July 2001, to appear on 24th July 2001 (see page 2 of exhibit C17). I
am also not unmindful of facts before the Court as agreed by the parties that Claimant
was charged to Court alongside another colleague, but same was withdrawn
against him to pursue the matter
administratively as seen in the last page of exhibit D5 dated 29th
June 2000 and addressed to the Claimant.
[42] I have however observed that
there is nothing on the record to show that Claimant was ever queried with
regards to the theft of the missing Air-conditioner, as he was the one who made
a report of the loss vide exhibit C2. Also, regarding the misappropriation of
N50, 000.00 (Fifty Thousand Naira) belonging to the Pediatric Association of
Nigeria, Abuja Chapter, there is no record of any query against the Claimant. This
to my mind aligns and supports the Claimant’s contention at paragraphs 23, 24
and 28 of his statement of Claim; while going against the Defendant’s paragraph
24 of its statement of Defence.
The above makes it apparent that the Claimant
was not duly notified of the allegations against him before he was summoned for
the disciplinary hearing on 24th July 2001, which runs contrary to
the fundamental principles of fair hearing that a person facing an allegation
should be informed prior to the date of his trial of what he is expected to
defend, so he could have made any written or oral representation considering
that the offences against them were such as could and which indeed resulted in
his dismissal. See the case of OLAYIOYE
V. OYELARAN (2019) 4 NWLR (PT.1662) 351 @ 373 PARA. F. I find that the Defendant
did not comply with the provision of 030307 (i) of the PSR and judicial
authorities in this regard and I so hold.
[43] Another leg of contention by the
Claimant is that he was given only five days to prepare for his defence before
the Disciplinary committee and that such was not sufficient considering the
allegations against him and that he was tried within a few hours, thus denying
him fair hearing. In this regard, Defendant maintain that ample opportunity was
given the Claimant to defend himself. I have again observed that the portions
of exhibit D4 pertains to the Claimant’s Disciplinary hearing which reveal that
same was conducted on the date slated being 24th July 2001 and then later
rescheduled for 31st July 2001 to continue with the hearing.
Assuming without holding that the hearing only lasted a few hours as asserted
by the Claimant, in my view, Claimant has not placed credible evidence before
the Court to show that a few hours of hearing amounted to denying him fair
hearing. No particulars were presented before the Court to substantiate such
assertions and hence that line of argument must fail, I so hold.
[44] Still on the issue of fair
hearing, Claimant alluded that because the members of staff of the Defendant
were the ones that tried him on the allegations against him, while the Defendant
itself was the complainant, the Defendant in his opinion contravened the latin
maxim Nemo judex in causa sua; meaning one shall not be a judge in his
own cause which the Defendant has denied: my straight forward resolution on the
point is that the Claimant has not shown which other authority was to
discipline on the allegations aside the Defendant’s Disciplinary committee,
neither did he present any evidence to show that they lacked the power to so discipline
him or that any member of the Disciplinary committee was disqualified from
being on the panel. It should not be forgotten that the burden of proving any
assertion or claim lies on the party who would fail if no evidence is adduced
on either side and that having failed to establish such claim, the burden
cannot shift to the defendant to prove the contrary, I so hold. See the case of
NDUUL V. WAYO & ORS. (2018) 7SC
(PT.111) 164 @ 212.
[45] Claimant counsel also challenged
the hearing of the Disciplinary Committee of the Defendant on the ground that
Mrs. Halima Audu (Claimant’s HOD) was called to testify against him, yet he was
not given the opportunity to cross examine her. Defendant on their part alluded
that both of them testified on the same date. (See paragraph 10 of Defendant’s
WSO). The foregoing to my mind does not explain or clearly deny Claimant’s
assertion that he was not given opportunity to cross examine Mrs. Halima who
gave evidence against him, which runs contrary to the provision of PSR 030307
(vii), especially in the face of allegations for which he was not issued with
any queries, I so hold.
[46] I need to stress the point that
a host of judicial authorities exist to show that when an allegation is made
against a party by his employer, he is entitled to know the allegation (s)
against him and be given time to make a defence. That the fact he is not called
to the meeting where the decision to terminate his appointment is made does not
in itself negate the principles of fair hearing, so long as it can be seen that
he was afforded the opportunity of presenting his defence. This could be by a
written response to a query earlier issued. See the case of OSAGIE V.
NNB PLC (2005) ALL FWLR (PT.257) 1485.
However, where a hearing is made and
the said party is invited to testify and witnesses called to give evidence
against him, then he must as a matter of course
be given an opportunity to disprove the evidence of the witnesses by cross
examining them and if documents were presented to be used against him which he
was not confronted with before, he must also be allowed to have access to such
documents and respond accordingly. See
Rule 030307 (vii) of PSR.
[47] On the whole, it is my finding
on the first issue that the Defendant failed to comply strictly with the
principles of fair hearing in its disciplinary proceedings which eventually
resulted in the dismissal of the Claimant and I so hold.
Resolution of
Issue Two
[48] Flowing from
the resolution of the first issue above, and the facts before
the Court having shown undoubtedly that Claimant’s employment with the Defendant
was one regulated by statute, it must be stated that where an employment is
governed by statutes and the procedure for employment and discipline is clearly
spelt out in the relevant statutes, the employer must comply strictly with its
provisions in dismissing its employee or terminating his employment. See the
Supreme Court case of KSJSC V. TOLANI (2019) 7 NWLR (PT.1671) 382.
[49] From the totality of the evidence adduced before
this Court and the material facts also presented before me, I am convinced that
the Claimant has proved his case before this Court, to the effect that he was
not afforded fair hearing in the process that resulted in his dismissal vide
exhibit C17, I so hold.
Consequently, the Claimant shall be entitled to be
reinstated with the principle of restitutio
integrum, which is the proper remedy, in restoring the Claimant to the position he would have been but for the breach.
[50] Regarding the claim for general damages in the sum
of N50 Million Naira, I am of the view that having resolved the case in favour
of the Claimant and making the order for restitutio integrum, it will amount to
double compensation to award him such relief, hence same is refused.
[51] In conclusion, the case of the Claimant succeeds in
part and it is hereby ordered as follows:
1.
Reliefs 1 and 2 succeed in that
the Defendant having failed to afford the Claimant fair hearing, it is hereby declared that his dismissal
by the Defendant is illegal, null and void and of no effect whatsoever.
2.
Reliefs 3 and 4 also succeed and this Court makes
and order that the Claimant be reinstated back to his position as an employee
of the Defendant and shall be allowed to continue his service with the Defendant.
3.
It is hereby declared that the Claimant is
entitled to and shall be paid his emoluments, salaries and all his entitlements
due to him from November 2002, when his employment was unlawfully terminated,
till the date of judgment and final liquidation of the judgment sum.
4.
Relief 6 for general damages is refused.
5.
Cost of this suit is awarded in the sum
of N500, 000.00 (Five Hundred Thousand Naira only.
Judgment is hereby entered
………….………………………………..
Hon. Justice R. B. Haastrup
JUDGE