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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: April 24, 2015 SUIT NO: NICN/CA/75/2013 BETWEEN MR. MATTHEW EBONG UDO - CLAIMANT AND NATIONAL EXAMINATIONS COUNCIL (NECO) - DEFENDANT REPRESENTATION Emmanuel Isangidoho Esq and Elijah Umoh for claimant. No appearance for defendant. JUDGMENT The claimant took out a writ of summons against the defendant on the 26th October 2009 at the Federal High Court Uyo Division. On the 7th July 2010 he filed his statement of claim together with other accompanying processes and sought the following reliefs: 1. A declaration that the purported termination of the plaintiff’s appointment by defendant vide a letter dated 5th August, 2009 with Reference NECO/SEC/501/138, is unlawful, unconstitutional and therefore null and void. 2. An order of the court on the defendant to re-instate the plaintiff in his employment and revert plaintiff to his last official designation as Assistant Director Exams with all his salaries, personal emoluments, entitlements, allowances, fringe benefits etc, paid from the date of the purported termination till the determination of this suit. 3. Special damages of N10,000,000.00 to the plaintiff for psychological distress, mental agony, monumental discomfort, increment of debts arising from defendant’s unlawful and unconstitutional termination of plaintiff’s statutory employment. 4. N5,000,000.00 as general damages to the plaintiff. 5. Cost of this suit as assessed by the court. The defendant entered appearance on the 5th August 2010 and filed an amended statement of defence and counterclaim on 2nd May 2012. This suit was subsequently transferred to this Court form the Federal High Court Uyo on the 18th April 2013. A further amended statement of defence but without a counter claim was filed on the 20th March 2014. The matter then went to trial. The claimant’s case on the pleadings is that he was employed by the defendant in February 2000 as Principal Examination Officer and rose to the position of Assistant Director Exams. The claimant pleaded that while carrying out his duties as zonal officer in-charge of Sokoto Zonal Office, he had administrative differences with the manner and style the zonal accountant Mrs. Tashe Ogbe who was his subordinate discharged her official duties. That he issued her a memo to the effect that she should not combine her accounting job with handling of revenue items which is a job area of a store officer according to the guidelines issued by the defendant; and she replied and stated that his memo was illegal and she would not take any directive from him. The claimant pleaded that arising from the accountant’s reaction, he contacted the Director of Examination Administration Departments at the Headquarters and issued a query to her which she replied one month after the stipulated time. That he thereafter was directed by the Registrar of the Council Prof. Promise Okpala, to handover revenue items to the accountant instead of the store officer as stipulated in the guidelines issued by him. The claimant pleaded that the accountant’s reply to the query carried some false allegations against him but nevertheless, he for¬warded the reply with a confidential report to the headquarters, at Minna, Niger State. That in her reaction to the confidential report, she further made false allegations against him which the defendant never brought to his knowledge. He pleaded that the Director of Corporate Support Services Department Dr. Nasiru Dantye called him on telephone and informed him that it was the decision of the Acting Registrar Mr. E.D Philips that he and the accountant would be posted out of Sokoto State if they could not work together. The claimant pleaded that there was no official correspondence or directive on how he should work with a subordinate staff whose fraudulent conduct has been reported to the defendant. That barely 2 weeks after he received a call from the Acting Deputy Director Corporate Support Services informing him that his attention was needed in the headquarters without stating the reason his attention was needed. The claimant pleaded that on arrival at the headquarters, he was asked to appear before a panel set up by the defendant to investigate an allegation of fraud against him by the accountant. He averred that he appeared before the panel that same day and was asked why he queried the accountant, was cross-examined on the contents of the accountant’s reply to the query and her reaction on the confidential reports on her. The claimant pleaded that within 10 days after appearing before the defendant’s panel, he was posted from Sokoto to the Headquarters at Minna and that on resumption sent on official assignment to Awka in Anambra State. That on the 6th day of his stay in Awka the Acting Deputy Director Exams informed him that his attention was needed immediately at the headquarters. That on arrival, he was served with a letter of indefinite suspension pending the determination of the case. The claimant averred that without any warning or query the defendant terminated his appointment vide letter of termination of appointment Ref. No. NECO/SEC/501/138 dated 5/8/2009 and asked him to refund the sum of N198,400.00 to the defendant. The claimant averred that the defendant never issued him with a query setting out the allegation made against him and given him an opportunity to defend himself in writing within a specified time. That the panel set up by the defendant was for fact finding. The claimant pleaded that neither the “Panel” or the management of the defendant informed him of the particulars of the alleged “gross misconduct” or stated the ground for the termination. He pleaded that during the Panel investigation, he was not given an opportunity to cross examine his accuser the accountant over the allegations; and was denied opportunity of being present when she gave oral evidence to substantiate her allegations. He averred that the evidence given against him by his accuser was not made known to him nor was he given the opportunity to correct or contradict same. The claimant pleaded that the defendant’s conduct is motivated by bad faith and is in breach of his right of fair hearing as throughout his service he committed no act of impropriety and did his work diligently and effectively without any blemish or query. That he had written a passionate letter of appeal to the defendant to reconsider its decision on the termination to no avail and that he instructed his Solicitors to write the defendant. He pleaded that the termination has subjected him to untold hardships and suffering as he is being hunted by UBA to pay back a loan of N950,000.00 with the interest amounting to N1.4m as at November 2008 which the defendant guaranteed with his salary, he is also indebted to NECO staff (Multi¬-Purpose Co-operative Society) to the sum of N1.2m as at September 2008 being a loan given to him. The claimant gave evidence in support of his case. He adopted his statement on oath on the 29th October 2013. After two adjournments in which the defendant and its counsel failed to appear to cross-examine the claimant, the claimant’s case was closed on the 18th February 2014. The defendant’s case on the pleadings is that the claimant was Assistant Director Exams whose appointment was terminated for gross misconduct after due process was followed. It pleaded that the offer of appointment made by the defendant to the claimant is as contained in its letter of offer and that where either party elects to terminate the appointment, it is not bound to give any reason for its action. It pleaded that the claimant submitted a copy of the query he gave to the Accountant and that having studied the said query and reply, an Administrative Panel was constituted to reconcile the 2 officers failing which both officers were transferred from its Sokoto State Office. The defendant pleaded that at the hearing, the Accountant made allegations bordering on financial misdeeds against the claimant and that considering the weighty nature of the allegations, he was suspended from office. The defendant pleaded that it elected to terminate the appointment of the claimant and actualized this by issuing him with a letter Ref. No. NECO/SEC/501/1/38 of 05/8/2009 stating that his services were no longer required by the Council and not in relation to his quarrel with his stations Accountant or the allegations of financial improprieties made against him by the said Accountant. The defendant averred that it did not investigate any criminal allegation(s) against the claimant nor did it predicate the termination of his employment on any allegations or disciplinary action or measure; that the refund of N198,400.00 was in respect of the defendant’s items given to him to sell to its prospective candidates. On the day fixed for the defendant to present its case, defence counsel informed the court that the defendant will rest its case on the claimant’s case. The parties were then directed to file their final addresses. Learned counsel to the claimant submitted the following issue for determination: Whether the claimant has established his claim and entitled to the reliefs sought in this suit? He submitted that on the evidence adduced, the claimant has established that he was not given a fair hearing in the determination of the case levied against him as the claimant was never served with a copy of the letter written by the accountant against him nor was he given opportunity to cross-examine his accuser over allegations made against him. He cited Adedeji v Police Service Commission [1967] All N. L. R. 67, Denloye v Medical and Dental Tribunal [1968] I All N.L.R 306, Electricity Corporation of Nigeria v George Nicol [2007] 7 NLLR Part 17 page 85 at 88, Falomo v Lagos State Public Service Commission [2007] 8 N. L. L. R. (Pt. 21) page 170 at 174. Counsel further submitted that he claimant also established facts of indebtedness and hardship experienced by him as a result of the unlawful termination of his employment by the defendant and also proved that he is not indebted to the defendant. He submitted that the claimant’s case was established with credible and material evidence which has not been disputed or challenged. That evidence not challenged or contradicted, ought to be accepted as there is nothing on the other side of the balance citing Adejumo v Ayantegbe [1989] 3 NWLR Pt. 110 page 417 at 424, Nigeria Social Insurance Trust Fund Management Board v Klifco Nig. Ltd. [2010] Vol. 186 LRCN 1 at 4. Learned counsel further submitted that the letter of appointment when construed in its totality, the clause “allowances and other conditions of service are as obtainable in the Federal Civil Services” clearly shows that the claimant’s appointment is clothed with statutory flavor. He cited Longe v FBN Plc [2010] Vo. 185 LRCN33 at 41. He submitted that a term or clause in a letter of appointment cannot obviate or override the statutory provisions regulating that nature of employment citing Textile Garment and Tailoring Senior Staff Association of Nigeria v Management of Nigerian Textile Mills Ltd. [2007] 7 NLLR Pt. 17 page 99 at 102. He argued that a close observation of Exhibit C6 indicates that it was issued malafide as the claimant was not given up to one month notice and neither was one month salary in lieu thereof paid. He then urged the court to hold that the claimant has established his claim and is entitled to all the reliefs sought in this suit. Learned counsel to the defendant submitted the following issue for determination: Whether, having regards to the claimant’s letter of appointment, claimant is entitled to his claims. He submitted that the onus is on the claimant to prove that his termination was based on alleged misconduct/fraud and breach of fair hearing citing Okoh v Unilag [2011] 14 NWLR (Pt. 1268) 563 at 586 F-G, Eguasa David Odiosa v Auchi Polytechnic [1998] 4 NWLR (Pt. 546) page 477 at 487, Okoebor v Police Council [1998] 9 NWLR (Pt. 566) at page 534. He argued that the reason for the claimant’s termination is for services are no longer required by the Council; and that there is no reference to misconduct or to fraud or to the allegations contained in the claimant’s pleadings as to give rise to the complaint of absence of fair hearing. He submitted that since no confirmation of the claimant’s appointment was specifically pleaded and proved, the Court cannot speculate on same referring to Section 131(2), 132 and 136(1) of the Evidence Act, 2011. Learned counsel further submitted that proof of facts in an action supported by pleadings cannot be by implication or deductions as the averment must be concise and unambiguous citing Stowe v Benstowe [2012] 9 NWLR (Pt. 1306) 450 at 464C, PDP v INEC [2012] 7 NWLR (Pt. 1300) 538 at 566, Abubakar v Joseph & Anor [2008] 13 NWLR (Pt. 1104) 307 at 356-357, Okparaeke v Egbuonu [1941] 7 WACA 53, Pollyn v Miejene [2012] 14 NWLR (Pt. 1321) 567 at 579-580. He submitted that there being no evidence of confirmation of his appointment, the claimant is only entitled to one month’s salary in lieu of notice relying on F.M.C, Ido-Ekiti v Olajide [2011] 11 NWLR (Pt. 1258) 256 at 286 F-G Learned counsel submitted that an employer is not obliged to give any reason for terminating an employment neither is motive is relevant where the contract of employment gives either party right to terminate citing Institute of Health, A.B.U v Anyip [2011] 12 NWLR (Pt. 1260) 1 at 19-20 E-A, Mobil Oil v Assan [2003] 6 NWLR (Pt. 816) 308 at 319-320 F-C. He argued that the cases Falomo v Lagos State P.S.C and E.C.N v George Nicol cited by the claimant relate to dismissal on grounds of alleged misconduct or fraud and are not relevant to this case. He submitted that the claimant’s claims for N10m as special damages have not been proved and no particulars were placed setting-out how the sum was arrived at citing UBA v Folarin [2003] 7 NWLR (Pt. 818) 18 at 45 D-E, Consolidated Breweries Plc v Aisoweren [2001] 15 NWLR (Pt. 736) 424 at 457-458, A-G Oyo State v Fairlakes Hotels Ltd [1989] 5 NWLR (Pt. 121) 255. He then urged the court to dismiss the suit. Replying on point of law, the claimant’s counsel submitted that it is too late for the defendant to use its final written address to deny, attack or contest the averments in the claimant’s statement of claim or challenge the evidence adduced when it has abandoned its defense; failed to cross examine the claimant’s witness but has chosen to rest its case on that of the claimant citing Chabasaya v Anwasi [2010] Vol. 184 LRCN 1 at page 7, Haway v Medicowa Nig Ltd [2000] FWLR (Pt. 22) 1040; United Nigeria Insurance Co. Ltd v Universal Commercial & Industrial Co. Ltd [1999] 3 NWLR (Pt. 573) 17; Balogun v UBA [1992] 6 NWLR (Pt. 247) 336. He submitted that the real and material facts which form the basis of the claimant’s cause of action have been pleaded and the defendant has admitted them to be true. He then urged the court to discountenance the attempt to traverse the pleadings and evidence of the claimant by the defendant in its final address and grant the claimant the reliefs sought. I have carefully considered the processes filed, the evidence, written submissions and authorities. The issues for determination in this judgement are: (i) Whether the claimant is entitled to automatic judgement on account of the defendant electing to rest its case on that of the claimant; (ii) whether the claimant was denied fair hearing; (iii) whether on the pleadings and evidence the claimant ought to be entitled to the reliefs sought. The law is settled that it is the duty of the claimant to prove his case rather than rely on the weakness of the defence. See Ogunyade v Oshunkeye [2007] 13 NWLR (Pt 1057) 218 at 246-247; Buhari v Obasanjo [2005] 13 NWLR (Pt 941) 1. The claimant will only succeed if he discharges the burden of proof imposed on him by law as he is the person who desires judgement in his favour. See Section 131 (1) and 133 (1) of the Evidence Act 2011, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The main relief sought by the claimant is declaratory and he must succeed solely on the strength of his case and not on the election of the defendant to rest its case on the claimant’s. See Dumez Nigeria Ltd v Nwakhoba [2008] 18 NWLR (Pt 1119) 361 at 373-374. The claimant has placed before the court the required evidence relating to his appointment, service details, letter of suspension, letter of termination and the applicable operative staff conditions of service which he adopted in his written statement on oath. He was not cross-examined and therefore his evidence is unchallenged. There is no dispute between the parties on the following facts: (i) that the claimant was employed by the defendant on February 2000 as Principal Examination Officer; (ii) that the claimant is a Public Officer and has risen to the position of Assistant Director Exams and (iii) the defendant is a statutory body constituted under the National Examinations Council (NECO) (Establishment) Act Cap N37 LFN 2004. The question then is which category of employment known to law does the claimant belong? His letter of offer of appointment states that “Your allowances and other conditions of services shall be as obtainable in the Federal Civil Service.” Furthermore, Section 11 of the NECO Act empowers the Council to make staff regulations and conditions of service which provide for appointment, promotion, termination, dismissal and disciplinary control of staff. I find that the claimant’s contract of service is governed wholly by the provisions of statute and his conditions of service are as contained in the Regulations deriving from statutory provisions. I therefore hold that his employment is protected by statute. It is one with statutory flavour. See Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Olaniyan v University of Lagos [1985] 2 NWLR (Pt 9) 599, Iderima v Rivers State Civil Service Commission [2005] 16 NWLR (Pt 951) 378. The defendant has made submissions to the effect that the claimant has not adduced any evidence to show that he is a confirmed staff. The evidence before the court is that the claimant was in the services of the defendant for over nine years and rose by virtue of promotion to the position of Assistant Director Exams. This fact is unchallenged. It does not stand to reason that a Public Officer who has been in service for nine years, has enjoyed promotion and is put in charge of a Zonal Office will still be an employee on probation. I find that the defendant rather than defend the case made against it which is breach of the claimant’s right to a fair hearing, has attempted to throw up a completely different case in his final address. I hold that the claimant does not hold his employment at the pleasure of the defendant; his employment being one with statutory flavor. The claimant has alleged that he was not given a fair hearing in the determination of the case against him before his appointment was terminated contrary to the defendant’s staff regulations and conditions of service and the 1999 Constitution. Clause 6.02 of the defendant’s regulations stipulates that in instituting a disciplinary action against any offending staff, he must be given a query in writing setting out the allegations made against him and calling upon him to submit his representation and defend himself in writing within a specified time. The matter shall be investigated and where necessary constitute a disciplinary panel. Clause 6.03 (c) stipulates that an officer may be suspended from duty for committing an offence. There is no evidence that he was given a query or appeared before a disciplinary committee before he was suspended and subsequently terminated. I believe the claimant’s evidence that he was not given a fair hearing; and this has been established by credible and unchallenged evidence. See Nigeria Social Insurance Trust Fund Management Board v Klifco Nig. Ltd. [2010] Vol. 186 LRCN 1 at 4. I find that without complying with the mandatory provisions of Clause 6.02 and 6.03 of the defendant’s staff regulations and conditions of service, the defendant suspended the claimant and then proceeded to terminate his employment. I hold that the defendant was in breach of the above mentioned provisions of the claimant’s contract of service and Section 36(1) of the 1999 Constitution when it terminated his appointment. The defendant is a Federal Government statutory body and must carry out its activities in line with its governing laws, rules and procedures. The rules regulating discipline and the termination of the claimant’s employment must be strictly complied with, his employment being one with statutory flavour. Consequently, I hold that the termination of the claimant’s appointment by the defendant is null and void and of no effect. He is entitled to automatic reinstatement. He is reinstated into the service immediately as Assistant Director Exams with all the rights and privileges he is entitled to and with no loss of seniority. See Shitta-Bey v Federal Public Service Commission supra, Iderima v Rivers State Civil Service Commission supra, Olatunbosun v NISER Council [1983] 3 NWLR (Pt 80) 25. For all the reasons given above, I hereby declare and make the following orders: 1. The suspension and subsequent termination of the claimant’s appointment by letter dated 5th August 2009 with reference number NECO/SEC/501/138 was done in breach of the parties applicable conditions of service and the 1999 Constitution. 2. The termination of the claimant’s appointment as Assistant Director Exams is unlawful, null and void. It is of no effect and is hereby set aside. 3. The claimant is reinstated into the service immediately as Assistant Director Exams with all the attendant rights and privileges. 4. The defendant is ordered to immediately release and pay the claimant his salaries, personal emoluments, allowances and other entitlements due to him from 5th August 2009. I award in favour of the claimant cost of N50,000.00 to be paid by the defendant. Judgement is entered accordingly. ---------------------------------------- Hon Justice O.A.Obaseki-Osaghae