Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 3RD MARCH, 2015 Suit No. NICN/ABJ/293/2012 BETWEEN CYRIL AJUEBOR CLAIMANT AND NIGERIAN TOURISM DEVELOPMENT DEFENDANT CORPORATION (NTDC) REPRESENTATION Chuka K. Iloeje Esq for the Claimant. Chuma Chukwudi Esq with Mrs. T. M. Aboderin (Senior Legal Officer) for the Defendant. JUDGMENT By way of complaint dated and filed on 2nd November, 2012, the claimant claims against the defendant as follows:- a. A Declaration that the purported dismissal against the Plaintiff from the services of the defendant is unlawful, null and void and of no effect. b. An Order reinstating the Plaintiff back to employment. c. An Order directing the defendant to pay to the Plaintiff all the arrears of his salary from the date of his purported dismissal to the date of his reinstatement. d. The sum of N5 Million Naira (Five Million Naira) Only as damages for unlawful dismissal from the employment of the defendant. e. The cost of prosecuting the suit. Accompanying the complaint are claimant’s statement of facts, witness statement on Oath, list of witnesses and list of documents to be relied upon at the trial. The defendant entered a memorandum of appearance dated and filed on 8th January, 2013. Thereafter the defendant filed its statement of defence, defendant witness statement on Oath and list of documents. The matter went on trial, the claimant testified in his case and tendered Exhibits. The defendant in its case called three witnesses. Julius Ifeanyichukwu Uhaneche, Abimbola Oyetomi and Onwuachola Samuel Okpamo as witnesses. Trial was concluded on the 28th of October, 2014. Parties ordered to file and exchange their final written addresses. On the 9th of December, 2014. Parties adopted their final addresses. The defendant raised three issues for the determination to wit:- 1. Whether this Honourable Court having admitted Exhibit J4 marked without prejudice and headed “LETTER OF INVTATION” can rely on same. 2. Whether the claimant is entitled to succeed as per his claim. 3. Whether the defence has successfully made out in defence that the claimant was properly dismissed in accordance with the provisions of the claimant’s condition of service to warrant dismissal of the claimant’s claim in its entirety. Issue No. 1 The learned counsel submitted that this Honourable Court ought not to have admitted Exhibits J4. Exhibit 04 clearly speaks for itself. He referred this Honourable Court to Section 26 of the Evidence Act 2011 which is in pari materia with Section 25 of the Evidence Act 1990 (now repealed). He submitted that Section 25 of the Evidence Act 1990 (now repealed) was judicially considered by the Supreme Court in Fawehinmi V NBA (No. 2) (1989) 4SC (Part 1) 63 at 111, Agbaje, JSC in his lead Judgment stated as follows:- This section grants privilege from disclose to court any admission made upon express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. (emphasis underlined). Agbaje, JSC went on in his lead Judgment in Fawehinmi V NBA (No. 2) (Supra) at 111 – 112 to state as follows:- Happily we are not without precedents to guide us in the name. As regards this point Phipson on Evidence, 12th edition, page 295, paragraph 679, says:- Offers of compromise made expressly or impliedly without prejudice cannot be given in evidence against a party as admissions, the law on grounds of public policy, protecting negotiations bona fide entered into for the settlement of disputes. The rational of the doctrine is a complex of factors. The policy of the law is to encourage settlement; it is thought to be “unfair” that advantage should be taken of the willingness of the party to negotiate; and some cases discover on express or implied contract between the parties that without prejudice communications should not be disclosed. Wigmore thought that the doctrine was based on the fact that the statement was conditioned, but this is inconsistent with the English and Commonwealth authorities. It is impossible that the modern rule extends to all third parties who act as mediators with a view to enabling the parties to reach a settlement or compromise, whether or not that third party is a legal representative. The same work says later in the same paragraphs:- “Without prejudice” protects subsequent and even previous letters in the same correspondence; and an admission made doctrine a bona fide attempt to settle dispute has been excluded even when not expressly made without prejudice. (underlining ours) It cites the case of Scotts Paper V Drayton Paper Works 44RPC 151, 529 in support of the latter proposition. Agbaje, JSC concluded at PP. 113 as follows:- So I am satisfied that the case Scott Paper Co. V Drayton Paper Works (supra) is in point here. The fact that a party sought and even obtained permission to make accurate recordings of the proceedings at a bona fide meeting to settle a dispute or even made that a condition for his attendance will not in my view alter the legal principle that admission at such a meeting are inadmissible in courts in subsequent legal proceedings between the parties to the peace settlement. For the above reason I am satisfied that the trial court was wrong in holding that the said admission were admissible in evidence in this case and that the Court of Appeal was right in holding to the contrary. I do not however, agree with the Court of Appeal that Section 25 of the Evidence Act is irrelevant to the point at issue. The learned trial Judge was right in applying the section he had to decide. However, in my Judgment, upon a correct application of the section to the point he ought to have held that the admissions were inadmissible. (emphasis underlined) The counsel therefore urged the court to discountenance Exhibit J4. Exhibit J4 lacks probative value and does not change the tenor of either the claimants’ case or the Defence. In respect issue 2:- Whether the claimant is entitled to succeed as per his claim. The learned counsel for the defendant communicated that the defendant Corporation vide a letter Ref. NTDC/SP/16/VOL. 1 dated 23rd April, 2001 headed “OFFER OF PROVISIONAL APPOINTMENT” conveyed its approval for appointment of the claimant as senior craftsman. The letter stated, inter alia, as follows:- (e) That you will be placed on probationary Appointment for a period of two years after which having been found medically fit for employment into the Government service and upon your satisfactory performance your appointment will be confirmed. (h) That you will be subject; in all respect, to all conditions of service stipulated in the Public Service and other Government Regulations of the Federal Republic of Nigeria. (emphasis underlined). The claimant was vide Exhibit PW2 requested to assume duty in the Administrative Department as an Artisan. The defendant Corporation confirmed the claimants’ appointment on 1st May 2003 with effect from 24th April, 2003. Barely four months that the claimant was confirmed as a senior craftsman he was issued a query (Exhibit PW4). Exhibit PW4 reads in part as follows:- QUERY You are aware that the Generator set in the office was vandalized and some vital parts stolen by unknown person between the 12th and 18th of August 2003. As the electrician in charge, you were expected to check the generator set on regular basis. This, you failed to do which has resulted in the vandalization of the generator set. 2. Your attitude amounts to negligence of duty, which is gross misconduct. (emphasis underlined) Consequently, the claimant replied vide Exhibit PW5 in the following terms:- I acknowledge the receipt of query reference No. 1400 Vol. 1 dated 21st August, 2003 given to me and I wish to state as follows:- 1. That I was off duty during the period you mentioned from 11th – 18th August, 2003 and that it was my colleague who was on duty within the period, therefore, there was no way I could have gone to inspect the generator set and he was supposed to do so. 2. The generator set was fueled on the 12th August, 2003 together with our bosses and since then there has been regular NEPA supply and as such there was no need for me to visit the generator set, moreso, that my colleague was on duty. 3. It was on Monday being 18th August, 2003 I was supposed to take over duty and there was power failure in the morning. Therefore, I went with intention to warm the generator set and to provide light. It was there I discovered there was vandalization. I then raised alarm and inform my superior officers. 4. I Did not neglect my duty as we share out duty between me and my colleague, I prayed I should not be disciplined in view of the fact stated above please. The claimant stated in paragraphs 12 and 13 of his statement of facts as follows:- 12. The Plaintiff avers that he was never at any time called to face a disciplinary panel or committee whatsoever where the theft issue was deliberated. 13. The Plaintiff stated further that he was never afforded a fair hearing subsequent upon his reply to the query. The counsel to the defendant submitted that howbeit, the claimant did not state facts in support thereof in witness statement dated 2nd November, 2012. During cross-examination the claimant stated that his off-duty was an arrangement between his boss, Alhaji Aliu Mohammed, Mr. Bayo and his colleague Abass. The arrangement was verbal. The claimant admitted that he was not issued Exhibit PW 4 as a security man. It is most respectfully submitted that throughout the gamut of his statement of facts and witness statement the claimant did not indicate that he was issued a query before the confirmation of his appointment by the defendant Corporation. Moreso, the claimant did not indicate either in his statement of facts or witness statement that he was issued altogether four queries, one warning and one suspension letter. In answer to the last question put to him during cross-examination the claimant answered that a servant who has four queries one warning and one suspension could be a bad staff. Consequently, the claimant was issued Exhibit PW6 titled “DISMISSAL FROM SERVICE”. It is therefore common ground that the claimant was issued employment on probationary appointment for two years on 23rd April, 2001 as a Senior Craftsman on Grade Level 04. His appointment is subject to all conditions of service stipulated in the Public Service Rules. It is pertinent to ask at this juncture: What is the extant Public Service Rules applicable to the claimant’s appointment? The answer is simple. The Public Service Rules of 2000 which predates the claimant’s appointment. It is imperative to reproduce paragraph 3 of Exhibit PW4 (paragraphs 1 and 2) having been earlier reproduced above) hereunder:- The aforesaid paragraph reads as follows:- 3 In the light of the above you are to explain within 48 hours of the receipt of this letter why disciplinary action should not be taken against you in line with PSR 00406. Failure to submit your representation within the stipulated time would mean that you have none to make and due disciplinary process will commence against you accordingly. Exhibit PW6 Letter Ref. No. NTDC/PF1400/VOL 1 dated 21st September, 2003 headed DISMISSAL FROM SERVICE states in part as follows:- Consequent upon the query issued to you reference No. NTDC/PF1400/Vol. 1 dated 21st August, 2003 and your subsequent reply on your negligence leading to the vandalization of the Generator Set. I am directed to inform you that you have not exonerated your self from blame. 2. Your flagrant display of negligence of duty constitutes a serious misconduct. The Management queries your action(s) as such and has directed that you should be dismissed from the services of the corporation with immediate effect. 3. You are hereby dismissed from the service of the Nigerian Tourism Development Corporation (NTDC) with immediate effect. Exhibit J1 signed by one R. P Ndam (Principal Administrative Officer) and forward to the Deputy Director Administrative speaks for itself. The Junior Staff Committee made the following observation and recommendation reproduced hereunder:- i. Cyril Ajuebor (Artisan): The officer as the Senior Operator was not exonerated from the offence of negligence of duty which is a serious misconduct PSR 04401(V). The committee noted that the officer had series of queries, warnings and suspension in his record. Although the ultimate penalty for serious misconduct is dismissal (PSR04406); the committee however recommended that the officer and others involved should pay (half) of the cost of the repairs of the generator which is N177,249.93 over a period of six months. The argument is that of the officers are dismissed, the corporation will be at loss since it will bear the full cost of the repairs but if surcharged as recommended, the officers will also bear the cost. (emphasis underlined) The then Chief Executive Mrs. Tayo Omotosho in a hand written minute dated 10th September, 2003 and addressed to the Ag. Director of Administrative and Director of Finance and Supply stated unequivocally in the following terms reproduced, hereunder:- NTDC would never condone indolence/negligence that constitute Gross misconduct. (2) Recommendation of officers paying half the cost of repairs against the other recommendation of dismissal is totally unacceptable to mgt. (sic) (3) They’ve kept the entire corporation in the dark for days whenever NEPA takes light. (4) In accordance with Public Service Rules on gross misconduct/dismissal mgt thereby authorize their outright DISMISSAL as deterrent to others. All to be dismissed except Amos Abubakar, Ishaya Nana & Shauibu who are to forfeit one month salary. DFS to be informed accordingly. Ahmed Zuru to see me. Ag D Ad. Omotosho. The learned counsel referred to Dr. Taiwo Oloruntoba-Oju & 4 Ors. V Professor Shuiabu O. Abdul-Raheen and 3 Ors. (2009) 5 – 6 SC (Pt. 11) 57 at 102 – 103, Adekeye, JSC in her lead Judgment stated as follows:- It is trite law that the onus is on the Plaintiff/Appellants to prove that the termination of their appointments is unlawful and to discharged this onus, they must prove that:- (a) that they are employees of the Respondents. (b) placing before the court the terms of the contract the terms and conditions of their employment. (c) who can appoint and can remove them. (d) in what circumstances the appointment can be determined by the employer and breach of the terms. See also Organ & 14 Ors V Nigerian Liquefied Natural Gas Limited (2013) 7 SC (Pt. IV) 74 at 107; 127. The counsel to the defendant further submitted that a perusal of the Public Service Rules more particularly Rule 04103, 04406(a), 04401, 01003, 04402 and 04306 stipulates the procedure to be adopted for Discipline in the Public service. Same also defines the term “Civil Service” and who is to effect discipline. For the sake of emphasis same is reproduced hereunder. Rule 04103 of the Public Service Rules 2000 provides as follows:- The Civil Service Commission has delegated full disciplinary powers to Permanent Secretaries and Head of Extra – Ministerial Departments in respect of officers on salary GL. 01 to GL. 13 with the exception of the power of dismissal which has been delegated only from GL. 01 – GL. 06. The chapter should be read in conjunction with the “Guidelines for Appointments. Promotion and Discipline” published by the Federal Civil Service Commission. (emphasis underlined). Rule 04406(a) of the Public Service Rules states as follows:- The ultimate penalty for serious misconduct is dismissed. An officer who is dismissed forfeits all claims to retrieving benefits leave or transport grant etc. Under Rule 04401 of the Public Service Rules serious misconduct is defined as specific act very serious wrong doing and improper behaviour which can be investigated and proved. It includes:- X X X (iii) absence from duty without leave. (v) negligence (emphasis underlined) Rule 04402 of the Public Service Rules states that disciplinary procedure for serious misconduct shall be in accordance with Rules 04302 to 04306. Whilst Rule 04306 of the Public Service Rules on the one hand states as follows:- Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule. (i) The officer shall be notified in writing of the grounds on which it is proposed to discipline him. The query should be precise and to the point. It must be related the circumstances of the offence, the rule and regulation which the officer had broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him and he should be asked to state in his defence that he has been given access to such documents. The officers shall be called upon to state in writing, within the period specified in the query any grounds upon which he relies to exculpate himself. (ii) X X X X X X X X X X (iii) If the officer submits his representations and the Federal Civil Services Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed. It shall take such action accordingly. Should the officer however, fail to furnish any representations within the time fixed, the Commission may take such action against the officer as it deems appropriate. Rule 01003 of the Public Service Rules on the other hand defines the word “Civil Service” in the following terms:- Civil Services is a body or organ which enjoys continuity of existence. Essentially it covers Ministries and Extra – Ministerial Departments. Adopting the foregoing Public Service Rules it is submitted that the defendant Corporation has full disciplinary powers under Rule 04103 of the Public Service Rules to discipline officers on Grade Level 01 – grade Level 06. In the instant case the claimant is at all material times a Grade level o4 Officer. Exhibit PW1 speaks for itself. The claimant was notified in writing vide Exhibit PW4 while disciplinary action should not be taken against him in accordance with Rule 04306 of the Public Service Rules. In the instant case the claimant was notified that his attitude amounted to negligence of duty which is gross misconduct under Rules 04401 of the Public Service Rules. The claimant was also notified vide Exhibit PW4 that he should explain upon receipt of Exhibit PW4 why severe disciplinary action should not be taken against him in line with PSR 04406. The punishment under PSR 04406 is dismissal. It is further submitted that the defendant Corporation took administrative measures while investigations was still in progress by the Police. Exhibit PW4 speaks for itself. The defendant Corporation did not conduct hearing against the claimant in paragraphs 8, 9, 11 and 12 of the statement of facts in support of his complaint. Similarly, the defendant Corporation did not conduct hearing against the claimant in respect of any criminal offence let alone theft as stated by the claimant in paragraphs 6 and 7 of his witness statement under Oath. It is further submitted that where an employee commits an act that amounts to gross misconduct the employer is at liberty to discipline him. This Honourable Court is referred to Olarewaju V Afribank (2001) 7 SCNJ 493 at 510; Patrick Zhdeeh V Rivers State Civil Service Commission (2007) 3 CLN 37 at 39 and Arinze V First Bank (2004) SCNJ 183 at 193. The above quoted decision was followed by the High Court in Iweha V Ebice Co Ltd (2004) 11 CLRN 135 at 143. In Patrick Zhedeeh V Rivers State Civil Service Commission (supra) Ogbuagu, JSC (as he then was) in his concurring Judgment stated as follows:- If learned counsel for the appellant has realized that it is now firmly settled that in statutory employment just as in private employment, an employer, can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee, is given the opportunity of fair hearing. I believe that he may not have made that contention. See the recent case of Francis Arinze V First Bank Plc of Nig. Ltd (2004) 12 NWLR (Pt. 888) 663; (2004) SSCNJ 183; (2004) 5 SC (Pt.1) 160; (2004) 5 SC 35. Onu, JSC in his concurring Judgment in Arinze V First Bank (2004) 5 SCNJ 183 at 193 held as follows:- The views of Oputa and Coker JSC (supra) which completely support and develop the decision in Yusuf V UBA (supra) is to the effect that in case of misconduct bordering on criminality; all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him requiring him to defend himself. See OLATUNBOSUN V NISER (1988) 3 NWLR (PT. 80) 25 AT 56 – 57 AND 59. It is pertinent to refer to the questions posed by Coker; JSC in Garba V University of Maiduguri & Ors. (1986) 1 NWLR (Pt. 18) 550 at 611 paragraph D – H. On this issue counsel concluded that from the plethora of authorities cited above the claimant is not entitled to succeed as per his claims. The claimant did not lead evidence showing that his dismissal was unlawful. The claimant cannot therefore be reinstated and paid arrears of salary from the date of his dismissal to the date if his reinstatement. Similarly, having not led evidence to show that his dismissal was unlawful the claimant is not entitled to damages for unlawful dismissal and costs of prosecuting this suit. See also Organ & 140 Ors. V Nigerian Liquefied Natural Gas Limited (2013) 7 SC (Pt. IV) 74 at 107; 127. On issue 3:- Whether the defence has successfully made out a defence that the claimant was properly dismissed in accordance with the provisions of the claimants’ condition of service to warrant dismissal of the claimants’ claim in its entirety. The counsel for the defendant submitted that the defendant Corporation adopts its arguments in respect issue No. 2 set out above as if same applies mutatis mutandis to this issue No. 3. The defendant submitted additionally that the claimant did not disprove the fact that he was issued four queries, one warning and one suspension letter. This Honourable Court should take cognizance of the fact that the claimant feebly denied Exhibit PW10 (QUERY dated 23rd April, 2003). Howbeit, DW2 during examination in chief stated in paragraphs 24 and 25 of his witness statement as follows:- 24. That Mr. Ajuebor did not sign his signature or any of the queries issued to him except the ones dated 23rd April, 2003 as well as 19th June, 2003. 25. That his handwriting in all the queries even though not signed are similar to his handwriting on the letter of suspension. The claimant did not discredit the vital piece of evidence during cross-examination. See S. 93(1) of the Evidence Act. The defendant has therefore discharged the burden of proof placed on it to show that the various queries were written and/or signed by the claimant. See Ezike V Ezeugwu (1992) 4 NWLR (Pt. 236) 462. This Honourable Court is entitled to hold that the common course of business was followed in ensuring that the claimant was queried. See Section 167 of the Evidence Act 2011. This Honourable Court therefore urged to resolve this issue in favour of the defendant Corporation. This Honourable Court is urged to dismiss the claimant’s claim. In summary and conclusion The learned counsel to the defendant urged the court to dismiss the claimant’s claim in its entirety for the following reasons:- (j) Exhibit 4 (Letter dated 26th May, 2005 addressed to the claimant by one R. P. Ndam (Mrs.) PAO Admin marked “WITHOUT PREJUDICE” and headed “LETTER OF INVITATION” is inadmissible under Section 26 of the Evidence Act 2011 and cannot be relied upon in line with the decision of the Supreme Court in Fawehinmi V NBA (No. 2) (1989) 4 SC (Pt. 1) 63 at 111; 111 – 112; 115. (ii) The claimant employment is governed by the Public service Rules 2000 as shown in Exhibit PW1 Letter of Appointment. (iii) The claimant had been queried before his confirmation in 2003. (iv) Barely for months after confirmation of the claimant’s appointment the claimant has queried vide Exhibit PW4 in August, 2003 for negligence of duty which is gross misconduct. (v) The claimant’s explanation in response to Exhibit PW4 (Exhibit PW5) did not exonerate him from blame. (vi) The Junior Staff Committee which met on 5th September, 2003 was held to take administrative measures and observed that the claimant had series of queries, warnings and suspension in his record but recommend that he should pay half of the cost of the repairs of the generators while investigation was still in progress by the police. (vii) The Nigerian Tourism Development Corporation has full disciplinary powers to discipline officers on Grade Level 01 – Grade Level 06 by virtue of Rule 04103 of the Public Service Rules including the claimant who is a Grade Level 04 Officer. (viii) The then Chief Executive of the defendant Corporation Mrs. Tayo Omotosho authorized in writing outright dismissal of the claimant, among others, who is a Grade Leval 04 Officer. (ix) DW2 (Mr. Abimbola Oyetomi – Assistant Chief Administrative Officer) gave evidence that the claimant acknowledged receipt by long hand on all the queries he (claimant) was issued even though he did not sign all and such evidence was not discredited during cross-examination by the claimant. (x) The claimant admitted during cross-examination that a servant having four queries, one warning and one suspension could be a bad staff. The claimant final address was adopted by his counsel and in doing this the learned counsel submitted that from the background facts of the case, the claimant hereby formulated a single issue for determination to wit:- Whether the termination of the claimant’s appointment by the defendant is null and void and of no effect. The learned counsel submitted that the claimant’s appointment with the defendant is one that enjoys statutory flavour. Relying on the case of Chief J. A. Ogieva & 378 others V Chief Lucky Nosakhare Igbinedion (2004) 49 WRN 149 at 167 the Court of Appeal had this to say:- An employment is said to have statutory flavour when the appointment has been protected by statute. And an employment is protected by statute when statutory provisions govern the appointment ….. See also the case of Mrs. Akinyosoye Yemisi V Federal Inland Revenue Services (2013) All FWLR (Pt. 693) Page 1992. To buttress his submission further he referred to paragraph ‘H’ of Exhibit PW1 provides thus:- That you will be subject in all respect to all conditions of service stipulated in the Public Service Rules and other Government Regulations of the Federal Republic of Nigeria. The learned counsel then submitted having established the nature of the claimant’s appointment as one enjoying statutory flavour he wish to proceed to discuss the concept of fair hearing and finally whether the dismissal of the claimant from the defendant complied with the set down Public Service Rules. The learned counsel referred to the Supreme Court in the case of Professor B. J. Olufeagba & 43 (2010) 17 WRN 23 at 77 – 78 had this to say on the doctrine of fair hearing. The right to be heard is so fundamental a principle of our adjudicatory process, that it cannot be compromised on any ground. The principle of fair hearing not only demands but also dictates that the parties to a case must be heard …… The apex court went on to state that:- ….On his part, Obaseki JSC stated that a hearing can only be fair, when all the parties to the dispute, are given a hearing or an opportunity of a hearing. That if one of the parties is refused a hearing or not given the opportunity to be heard, the hearing cannot qualify as fair hearing. That without fair hearing the principle of natural justice are abandoned. The learned counsel then posed the question; what then is a hearing? Does the proceedings of the Junior Staff Committee which considered the query issued to the claimant qualify as a hearing? He referred the court to the definition of a hearing as contained in Blacks’ Law Dictionary (8th edition) wherein a hearing was defined as:- ….. Any setting in which an affected person presents arguments to an agency decision maker. That in paragraph 12 of the defendants’ statement of defense the defendant alleged thus:- The defendant further aver, that on the 5th of September, 2003, the Junior Staff Committee in charge of Appointment, Promotion and Discipline as it relates to staff of the defendant sat to deliberate on the matter, and their findings and recommendations thereafter were forwarded to the then Director-General for ratification ….. Counsel submitted that it is instructive to note that the claimant in his evidence in Chief denied having knowledge of any Junior Staff Committee that sat to deliberate on the issue as he was never invited to such a committee. Also in paragraph 12 of the witness statement on Oath of DW1 which was adopted as his evidence before this court on 23rd October, 2013 the witness stated thus:- In compliance with the Public Service Rules (2000) and the Appointment, Promotion and Discipline guidelines, the office directed the Junior Staff Committee to look into the matter. The DW1 went on to state in paragraph 13 of his witness statement on Oath that:- The Junior staff committee met on the 5th of September, 2003 to deliberate on the matter using antecedents, actual facts and documentary evidence, thereafter their recommendations were forwarded to the then Director–General who ratified some and directed the dismissal of the complainant and three others. During cross-examination of DW1 on whether the claimant was invited to the Junior Staff Committee the witness replied thus:- He was a Junior Officer. Junior Officers are never invited before the Disciplinary Committee according to the Civil Service Rules (2000) and there is no were the above evidence of DW1 is provided for in the said Rules. One wonders were the DW1 got such views. Counsel submitted that contrary to the position of the defendant that they were right to dismiss the claimant pursuant to Rule 04306 (iii) of the Public Service Rules they failed to avert their mind to the fact that the procedure for any disciplinary action against an officer in the Public Service and subject to the Public Service Rules which is likely to lead to his dismissal is in two stages. The first stage being the issuance of a query by the offending officers’ superior and report by that superior officer to another officer superior to him. The second stage is where the concerned officers’ reply to the query is not satisfactory and it is considered that the conduct complained of could lead to dismissal the procedure set out in rule 04306 must be followed. It seems that from the defendants’ point of view the procedure for dismissal contained in rule 04306 only ends at sub (iii) which they reproduced thus:- If the officer submits his representations and the Federal Civil Service Commission is not satisfied that he has exculpated himself and considers that the officer should be dismissed, it shall take such actions accordingly, should the officer however fail to furnish any representations within the time fixed, the commission may take such action against the officer as it deems appropriate. Sadly the provision of Rule 04306 doesn’t end at sub (iii) but rather extends up to sub (iii). However with the greatest respect to counsel to the defendant for purposes of considering the dismissal of the concerned officer the provision of sub (vi) becomes applicable. It is the counsel submission that once the Junior Staff Committee came to the conclusion that the claimants’ conduct warrants dismissal (see Exhibit J1; Observation and Recommendation of the JSC) Rule 04306 (vi) of the PSR became applicable. Counsel referred the court to the case of Mrs. Akinyosoye Yemisi V Federal Inland Revenue Services (2013) All FWLR (Pt. 693) Page 1992 particularly at page 2012 – 2013 where Kekere-Ekun (JCA) held thus:- ….. Having found the appellants’ response to exhibit 11 and 12 unsatisfactory, the respondent was bound by rule 04306 (vi) of the PSR to inform the appellant that on a specific day, the question of her dismissal would be brought before the board and that she would be required to appear before it and defend herself and shall be entitled to call witnesses. The learned justice of the court of appeal went on to state that:- The provision of rule 04306 (vi) is clear and unambiguous. Where the statute has laid down the procedure to be adopted, which the respondent failed to comply with it, it cannot be heard to say that there was substantial compliance. The counsel contended that the case of Yemisi V FIRS (Supra) is on all fours with the present case. In Yemisi’s case, the appellant was employed as Tax Assistant 3 in 1998. Her appointment was confirmed two years later. She got married and had a baby in 2005. She went on annual leave and overstayed by two months. She was issued two queries by the respondent which she replied to. Her salary was stopped and it was recommended that her appointment be terminated and was eventually terminated by management. The appellant contended that no panel was set up to try her nor was she invited to appear before any disciplinary panel before the termination of her appointment contrary to the PSR. The Court of Appeal in Yemisi’s case had this to say at page 2012 paras C – E. Where the concerned officer’s reply to the query is not satisfactory and it is considered that the conduct complained of is such that could lead to dismissal, the procedure set out in rule 04306 must be followed in the instant case, once the Junior Staff Disciplinary Committee came to the conclusion that the appellants’ conduct warranted dismissal or termination, rule 04306 (iv) (sic) became applicable. My lord Justice Adumein JCA went on to state at page 2018 para G that:- The documents, including queries issued to the appellant and her replies thereto, cannot by any stretch of imagination satisfy the requirements of rule 04306 (vi) of the Federal Public Service Rules which requires that the appellant who was accused of gross misconduct “shall be informed that on a specific day the question of his dismissal shall be brought before the board and he shall be required to appear before it to defend himself and shall be entitled to call witnesses …. (underlining mine). The learned justice of the Court of Appeal went on to say that:- The right to appear before the disciplinary committee and the right to call witnesses are rights that accrue to the benefit of the appellant who was accused of gross misconduct and it was only the appellant who could waive such beneficial rights. It was not open to the respondent to deny the appellant the benefit of such fundamental right. The documents relied upon by the respondent’s disciplinary committee no matter how implicating or incriminating they might be, had no mind, mouth, brain, senses or cognitive abilities of their own to speak for the appellant or defend her in absentia. Like a criminal trial, even where an accused made a confessional statement, he ought not be convicted without an arraignment whereby his plea be taken. The invitation to the appellant by the disciplinary committee to appear before it and to make representations was a very vital procedural step which the committee ought to have taken. Compliance with this very important procedural step in a sine qua non to the validity of the disciplinary committees’ deliberations and subsequent recommendations. The failure by the disciplinary committee to invite the appellant to appear before it is a fundamental vice which vitiates its deliberations and decisions, including the recommendation that the appellants’ appointment be terminated …. Finally the learned law lord of the Court of Appeal stated that:- …….By failing to invite the appellant to appear before it, the respondents’ Junior Staff Disciplinary Committee brazenly breached this time honoured rule of natural justice. What was the essence of setting up the disciplinary committee if not to afford the appellant the opportunity of being heard. The learned counsel then argued that it is crystal clear that the defendant failed to comply with the laid down provisions of the PSR before dismissing the claimant and he urged the court to so hold. Continuing counsel submitted that it is the position of the law that the remedy for wrongful termination of employment with statutory flavour is reinstatement. See the case of Yemisi V FRS (Supra) where it was held thus:- The law is settled that the remedy for wrongful termination of employment with statutory flavour is reinstatement. Also in the case of Mr. Richard Omidiora and another V Federal Civil Service Commission and three others (2008) All FWLR (Pt. 415) Page 1807 at Page 1819 – 1820 the Court of Appeal held thus:- Once dismissal or retirement is declared null and void, there is nothing legally standing in the way of the Plaintiff from having his job back with its attendant rights, benefits and privileges. Thus a successful litigant on the issue of unlawful dismissal where it is an employment of statutory flavour is entitled to be restored to his/her status quo ante bellum. In other words, in the type of circumstances of the instant case, where there has been found an improper removal of an officer from an office specifically protected by law, the consequence of that finding is that in the eye of the law, the appellants had not been removed from office. Thus, they are entitled to be placed de facto in the same position they are deemed to be de jure. Also in the case of the Registered Trustees of the Planned Parenthood Federation of Nigeria and Another V Dr. Jimmy Shogbola (2005) 1 WRN 153 at page 166 – 167 the Court of Appeal per Chukwuma-Eneh (JCA) as he then was held thus:- While in the other with statutory flavour, that is, where the appointment and dismissal of an employee is regulated by a statute in which case same rights and obligations are given and imposed respectively, usually beyond the ordinary contract of employment …. a declaration relief coupled with damages may be granted if the requirement of the statute are not complied with …… Concluding the learned claimant counsel submitted that the procedure set up by the Junior Staff Committee of the defendant in considering and subsequently terminating his employment is faulted ab initio. The Court of Appeal in Yemisi’s case stated thus:- The provision of rule 04306 (vi) is clear and unambiguous. Where the statute had laid down the procedure to be adopted, which the respondent failed to comply with it, it cannot be heard to say that there was substantial compliance. The rules must be complied with fully: Bamgboye V University of Ilorin (1990) 10 NWLR (Pt. 622) 290 at 320, paragraph F, (2001) FWLR (Pt. 32) 12. The detailed nature of the rules reveals the intention of the law makers to ensure that the fundamental right to fair hearing of an officer who is to be subjected to disciplinary action is fully protected. Also in the case of Olufeagba V Abdur-Raheem (Supra) the Supreme Court held thus:- The fair hearing principle entrenched in the Constitution is so fundamental in the Judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceeding and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once the appellate court comes to the conclusion that there is/was a breach of the principle of fair hearing, the proceedings (and I add decision) cannot be salvaged as they are null and void ab initio. Thus it is the case of the claimant that this dismissal from the service of the defendant is null and void as he was denied fair hearing as provided for in the laid down procedure for the dismissal/termination of employees whose employment has statutory flavour and thus urges this Honourable Court to declare same as null and void and of no effect whilst granting the releifs sought for in his claim. I have carefully considered the processes filed in this case, the submissions of counsel and the authorities cited in support of their final written addresses. The issue for the court to determine is whether the claimant can be granted the reliefs sought. Before going into the merit of this case it necessary to determine the nature of the claimant’s employment. There are three categories of employment:- a. A pure master/servant relationship under the common law. b. Employment where the office is held at pleasure. c. Employment protected by statute. In determining the nature of the claimant’s appointment the courts have held that recourse should be laid to the letter of employment and its contents. This is because it is the bedrock on which an aggrieved employee may found his case, he succeeds or fails on terms thereof. In the present case the claimant was employed by the defendant on 23rd of April, 2001, his appointment was confirmed on the 1st May, 2003. Paragraph (h) of the letter of offer of appointment provides:- That you will be subject, in all respect to all conditions of service stipulated in the Public Service Rule and other Government Regulations of the Federal Republic of Nigeria. The Rules that govern the relationship between the claimant and the defendant is therefore the Public Service Rules and his letter of appointment. The claimant’s employment falls within the 3rd categories that is to say the employment is protected by statute. It is trite that in determination of an employment with statutory flavour, the procedure laid down in the applicable regulations in this case Public Service Rules must be religiously follow. See the case of ILoabachie V Philips (2002) FWLR (Pt. 115) 726 at 740. It is trite that an employer has the right to discipline any of his erring staff including the claimant but in doing so the employer must comply with the terms of the contract. I fully agree with the submission of the defendant counsel in his submission in paragraph 4.25 of the final written address that the Nigeria Tourism Development Corporation (NTDC) the defendant in this suit has full disciplinary powers over the claimant under Rule 04103 of the Public Service Rule to discipline officer on Grade Level 01 – Grade 06. The claimant has argued that he was not giving fair hearing before his appointment was determined. He argued further that the committee that looked into the vandalization of the generator the Junior Staff Committee did not avail him the opportunity to defend himself before the committee before his appointment was determined by the defendant. On this issue the defendant confirmed that the committee met on this issue of vandalization of the generator and by examined the queries issued to the officers concerned including the claimant and made recommendations to the defendant without hearing the claimant under cross-examination Mr. Abimbola Oyetone DW2 said:- Counsel - What steps taken upon discovery that the generator was vandalized. Witness - We called the artisans and security men on ground to find out how some. The portion of the generator house was broken. We were directed to query them how come and every one of them replied to the query and they were analyzed to give them fair hearing. Witness - I am not aware. The DW3 also replied thus under cross- examination. Counsel - Are you aware a query was issued to the claimant. Witness - Yes. Counsel - Are you aware a committee was set up in respect of query. Witness - Yes. Counsel - Do you know whether the claimant was called by the Committee. Witness - I am not aware. When Mr. Julius Ifeanyichukwe Khanchi was asked under cross- examination he replied that:- Counsel - As having worked in the service for 23 years was the claimant ever invited to face the disciplinary committee. Witness - He is a Level 4 Officer, we do not we do not invite them before the Junior Staff Disciplinary Committee. Counsel - So you denied him fair hearing. Witness - Their reply is enough. We have not denied them of fair hearing. Counsel - The rule is that the party being investigated for serious misconduct when a committee is set up, the party being investigated should be given the opportunity to face the committee and be heard. Witness - We do not do that their reply to the query is their representation. It is basic that where a body, whether judicial or quasi judicial, administrative or executive in inception, acts judicially in the sense that it is determine the civil rights and obligations of a person, or find him guilty or liable of a fault, he must be given a fair hearing before the issue can be properly decided, this is as enjoined by the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria. The proceedings of the Junior Staff Disciplinary Committee held on ……… was conducted in clear violation of the claimant rights to fair hearing guarantied to all party by Section 36(1) of the Constitution. The powers exercised by the committee are derived from statute Public Civil Service and they cannot exercise any powers except in accordance with the Public Service Rule. If they did so outside the requirement of the statute Public Service Rule empowering them to do so the action will be null and void. The claim of the Junior Staff Disciplinary Committee that the claimant had had several queries in the past will not cure them inability in given the claimant a fair hearing. On no account can the right to fair hearing be waived or statutory taken away. Therefore, where there is a breach of the principle of fair hearing any decision arrived at will be a nullity. I therefore, hold that the dismissal of the claimant from the employment of the defendant as unlawful and the letter of dismissal dated 21st September, 2003 is hereby set aside. This brings to the next issue which is:- Whether the court can make an order of re-instatement. Having held that the claimant’s appointment enjoys statutory flavour and that the procedure adopted in the determination of his appointment as unlawful, null and void, the natural consequence of events would be an order of re-instatement of the claimant. The termination being null and void it is as if the claimant was never terminated and his employment still substing. It is therefore the courts order that the claimant be re-instated to his position with payment of his salaries, allowances and other benefits. Lastly, the claimant is asking for the sum of N5M (Five Million Naira) Only as damages for unlawful dismissal and the cost of prosecuting the suit. The court makes no award as the claimant cannot claim damages and reinstatement at the same time. The claimant has also not placed before the court what he incurred in prosecuting the case. The court also makes no award. It is for this reasons that I hold that the claimant claim succeeds in part and the claim of damages and cost of the suit fail. Judgment is entered accordingly. ________________________________ HON JUSTICE O. A SHOGBOLA JUDGE