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REPRESENTATION Ode Abah for the Claimant. J. Kelechi – Ukaonu for the Defendant. JUDGMENT On the 4th day of September 2012, the Claimant by a General Form of Complaint approached the Court for the following reliefs - a. A declaration that the Staff Conditions of Service of the Defendant made by the Board of the Defendant in October 2007 pursuant to the powers conferred on it by the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 10 of the Independent National Electoral Commission (Establishment Etc) Act No. 17 of 1998 Cap 15 Laws of the Federation of Nigeria 2004 are applicable for the purposes of determination of the employment of the Claimant and for other purposes connected with his employment with the Defendant. b. A declaration that the purported dismissal of the Claimant contained in the letter of dismissal dated 4th July 2012 with reference number HQ/LA/C.159/Vol.1/62 is illegal, unlawful, null, void, and of no effect whatsoever for being in flagrant violation of Clause 3.18 (C) (i), (ii) and (iii) and Clause 3.20 of the Staff Conditions of Service of the Defendant made in October 2007 pursuant to the powers conferred on the Defendant by the Constitution of the Federal Republic of Nigeria 1999 as amended and Section 10 of the Independent National Electoral Commission (Establishment Etc) Act No. 17 of 1998 cap 15 Laws of the Federation of Nigeria 2004. c. An order directing the Defendant to reinstate the Claimant to his post in the Defendant forthwith without any loss as to seniority, salaries, position and other emoluments. d. An order directing the Defendant jointly and severally to compute and pay to the Claimant all his salaries, allowances and other emoluments due to him from the 20th of December 2011 when he was suspended from the office by the Defendant up to the date of judgment. e. Interest at the prevailing commercial banks’ rates on the sum arrived at in relief (d) above. Parties on both sides filed requisite court processes and frontloaded all documents sought to be relied upon at the trial in compliance with the Rules of this Court. On the 16th July 2013, the hearing of this case commenced. Claimant testified in his case and tendered 10 Exhibits - Exhibits 1 - 10. Defendants called 2 witnesses and tendered 6 Exhibits - Exhibits D1, D2, D3, D4, D5 & D6. The facts of this case as deducible from the pleadings of parties are as follows: the Claimant was employed as a Store Clerk by the Defendant and deployed to the Defendant's Central Store in Surulere, Lagos from 2nd December 2010 to 11th October, 2011; that after the 2011 General Elections, the Direct Data Capture (DDC) machines used to register voters at various Local Government Areas were returned to the Defendants Central Store in Surulere, Lagos State where the Defendant was Head; that sometimes in the 2nd week of October 2011, it was discovered that a large number of the Direct Data Capture (DDC) machines and other Computer Accessories were missing from the Defendant's central store, Surulere, Lagos; that upon this discovery, the Resident Electoral Commissioner (REC) directed that the matter be reported at the Bode Thomas Police Station in an effort to recover the said missing DDC machines; that the REC also reported the incident at the Defendant's headquarters; that an Administrative Panel was subsequently set up by the Defendant to investigate the theft of the DDC machines and make recommendations to the Defendant; the Administrative Panel visited Lagos office of the Defendant between 14th and 19th December 2011where it sat and interviewed all staff directly or remotely connected with the missing DDC machines in the store; that a query captioned Missing DDC Machines was issued to the Claimant and other staff on the 17th December, 2011 which they replied to; and that at the end of its assignment the Administrative Panel submitted a report containing its findings and recommendations to the management of the Defendant consequent upon which the Claimant was dismissed. Under cross examination, CW1testified that the DDC machines were kept in the central store; that the keys to the central stores were always kept with the Security Guards; that his boss used to give the Keys to the Security Guards; that he did not know where his boss was on 6/10/11; that as the next in rank he took charge of the central store; that he did not take inventory of the store at the close of work; that it was not the practice to do so; that in December 2011 he received a letter titled Missing DDC Machines; that he responded to the letter on the 17th December 2011; that he appeared before the Administrative Pane set up by the Defendant; that his explanation to the Administrative Panel was that he did not know how the DDC machines got missing and that he did not inform the Defendant of the criminal charge against him in respect of the DDC machines. DW1 testified that he was conversant with the condition of service of the Defendant; that Administrative Panel is not the same as Secretary to the Commission; that he was not aware that the Claimant was charged to Court; that it was during the sitting of the Administrative Panel that the Resident Electoral Commissioner informed them that he had reported the matter to the Police; that the Claimant's reply to Exhibit 10 (Query issued to the Claimant) was submitted to the Administrative Panel and not to Secretary to the Commission. DW2 was cross examined by the Claimant's counsel. Under cross examination DW2 testified that she did not know the outcome of Police investigation and that she was neither aware that the Claimant was charged to court nor aware that the case was struck out. At the close of hearing on the 7th of October 2013, parties were ordered to file their final written addresses in accordance with the Rules of this court. Defendant's Final Written Address was dated and filed on the 24th day of October 2011in which learned Counsel submitted a lone issue for determination as follows: ''Whether having regard to the provisions of clauses 3.06, 3.10 and 3.19 of the staff conditions of service, October, 2007 of the Defendant and section 8(3)of the Electoral Act (as amended), the dismissal of the Claimant from the Defendant's employment is unlawful''. In arguing this lone issue, learned Counsel submitted relying on Dr. E. O. Imasuen v. University of Benin (2010) NLLR (Pt. 55) 22 that the onus is on the claimant to prove that the determination of his appointment is unlawful and that to discharge this onus, he must prove a. that he is an employee of the Defendant; b. placing before the court the terms and conditions of his employment; c. who can appoint and who can remove him; d. in what circumstance the appointment can be determined. Learned Counsel submitted that in the instant case there was no dispute that the Claimant was an employee of the Defendant until the 4th of July 2012; that the terms and conditions of employment with the Defendant are as contained in the Staff Conditions of Service, October, 2007 of the Defendant; that as regards (c) section 8 (3) of the Electoral Act 2010 provides an answer and that with regards to (d) Clauses 3.10 and 3. 19 of the Staff Conditions of Service of the Defendant provides a guide. According to the learned Counsel, the only question is: did the Defendant comply with the procedures as provided in Clause 3.19 of its Staff Condition of Service? he answered the question in the affirmative. He urged the Court to find in favour of the Defendant and dismiss the Claimant's claim. In his Final Written Address dated and filed the 21st of November 2013, the Clamant submitted 2 issues for determination as follows: 1. Whether the Defendant can terminate the Claimant's appointment without complying with the express provisions of clause 3.18 (c) (i), (ii) and (iii) and clause 3.20 of the Staff Conditions of Service of the Defendant. 2. Whether the Claimant is entitled to be reinstated as a result of the failure of the Defendant to comply with Clause 3.18 (c) (i), (ii) and (iii) and clause 3.20 of the Staff Conditions of Service of the Defendant. In arguing the first issue, learned Counsel contended that the Defendant had failed to comply with the necessary statutory and regulatory procedure before dismissal of the Claimant could be held valid. Counsel argued that the Defendant did not comply with the provision of Clause 3.18 (c) (i), (ii) and (iii) of the Staff Condition of Service of the Defendant. Referring to the evidence of DW1 under cross examination, Counsel submitted that the Administrative Panel is not the same as the Secretary to the Commission; that the Resident Electoral Commissioner informed the Defendant that he reported the matter to the Police; that the reply of the Claimant to the Query issued to him was submitted to the Administrative Panel and not to the Secretary to the Commission and that the Claimant did not submit any letter to the Secretary to the Commission. Counsel further submitted that the reply to the query given to the Claimant though required to be submitted to the Secretary to the Commission was none the less submitted to the Resident Electoral Commissioner instead. He urged the court not to allow any extrinsic evidence to subtract from the content of the said reply to query citing Larmic v. DPMS Ltd (2006)12 WRN at 150 pp 177-178, Union Bank of Nigeria Limited v. Ozigi (1994)3 NWLR (Pt. 333) 385, Eke v. Odofin (1961) All NLR 842, Colonial Development Board v. Kamson (1955)21 NLR 75 and Molade v. Molade (1958) NLR 206. He submitted further that the Claimant was never informed of the grounds upon which he was dismissed by the Defendant and that he was never given an opportunity to make representations to the Commission through the Secretary nor was any of his representations considered by the Defendant or relevant committee. In relation to Clause 3.20 of the Defendant's Staff Condition of Service Counsel argued that with a criminal proceeding already instituted against the Claimant the Defendant was wrong to have dismissed him. In supporting the position that a criminal proceeding was instituted against the Claimant, learned Counsel referred to Exhibits 5 and 9 as well as Exhibit D1 which was the report of the Administrative Panel. Counsel further referred to the Statement on Oath of the DW2. Counsel submitted that where there is an allegation of crime against an employee the employer cannot dismiss him on that allegation until the conclusion of a criminal trial convicting the employee on the ground of gross misconduct citing Uzondu v. UBA (2011)22 NNLR 392. On Issue 2, learned counsel submitted that the right to be reinstated is a right that follows consequent upon a declaration that a termination or retirement was unlawful, null and void citing Omidiora v. Federal Civil service Commission (2008)11 WRN (vol. 44) 53. He urged the court that having shown that there was non-compliance with statutory procedure to dismiss Claimant, he is entitled to be reinstated. Counsel further relied on Odaise v. Auchi (1998)4 NWLR (Pt. 546) 477. I have patiently considered all the processes filed in this case including all the written addresses as well as reply on points of law. I have in addition had the privilege of listening to testimonies of the witnesses in this case and the oral argument of learned Counsel on both sides. Having done so, i have come to realize that a lone issue suffices for the purpose of determining this case one way or the other as follows: ''Whether the dismissal of the Claimant is not unlawful for non-compliance with procedure set out in the Staff Conditions of Service of the Defendant, October, 2007''. There is agreement among parties that the appointment of the Claimant is one with statutory flavour. There is also no dispute as to the fact that the Independent National Electoral Commission Staff Conditions of Service, Revised Edition, October, 2007 (Exhibit 7) applied to the Claimant in matters of appointment, promotion and discipline. The relevant clauses of Exhibit 7 for this case are Clause 3.06; Clause 3.10; Clause 3.18; Clause 3.19 and Clause 3.20. It is imperative for clarity that i set out these Clauses: '' 3.06 -Basis for Disciplinary proceedings: Disciplinary proceeding in accordance with these regulations shall be initiated on the grounds of misconduct, an employee’s general incompetency or inefficiency”. ''3.10 - Disciplinary Measures: (i) In all cases, the fault of the employee shall be brought to his notice through the issuance of a query before final disciplinary action. (ii) Proven cases of misconduct shall attract any of the followings: (a) Advice (b) Verbal warning (c) Written warning (d) Serious warning (e) Last warning (f) Retirement (g) Termination (h) Dismissal''. ''3.18 Dismissal (a). An employee, whether or not under interdiction or suspension found guilty of any criminal offence, may be summarily dismissed. Where the officer is acquitted on appeal, he shall be reinstated and, paid all emoluments for the period (b). An employee may also be dismissed on the following grounds - (i) failure on initial appointment to disclose a conviction for any criminal offence; (ii). serious misconduct, whether or not, in relation to the performance of his duty (c). An employee shall not be dismissed in accordance with paragraphs (a) or (b) above until :- (i). he has been informed of the grounds on which he is being dismissed or being considered for dismissal; (ii). he has been given an opportunity for submitting representations to the Commission through the Secretary; and (iii). the Commission has considered his representations and the recommendations (if any) of the Head of Department/relevant Committees. (d). An employee dismissed in accordance with this paragraph shall hand-over all properties of the Commission in his possession/charge to such person as the Secretary may direct''. ''3.19: Disciplinary Procedure An employee may be dismissed/terminated or compulsorily retired on the recommendations of the appropriate Committee and in accordance with the following disciplinary procedures unless otherwise provided in the conditions of service. (a) The Commission shall set up a Committee to investigate the offence(s) committed by an employee. (b) An employee shall be called upon to state in writing of the offences for which action is being taken. (c) An employee shall be called upon to state in writing, prior to the day appointed for the hearing of the case (which day must allow a reasonable interval) any grounds upon which he relies to exculpate himself. (d) Where the employee does not furnish any representations within the time specified, the Commission may take appropriate action against him or as recommended by the appropriate Committee. (e) An employee shall be informed when his case will be brought before the committee. He shall be required to appear before it and entitled to call witness. Failure to appear shall not invalidate the proceedings of the committee. (f) Where an employee submits his representation and the committee is not satisfied that he has exculpated himself, it shall proceed accordingly. (g) No documentary evidence shall be used against an employee unless he has previously been supplied with a copy thereof or given access thereto. (h) Where during the course of the inquiry, further grounds for disciplinary are disclosed and the committee deems it fit to proceed against an employee upon such grounds, the employee shall be furnished with a written statement thereof and the same steps shall be taken as prescribed in respect of the original grounds. (i) Upon considering the representation of an employee, the committee is of the opinion that the employee does not deserve to be dismissed, it shall recommend other punishment as appropriate, including surcharge in the case of proven negligence, occasioning loss or damage of property. (j) Upon considering the representation of the employee, the committee is of the opinion that the employee does not deserve to be dismissed, but the facts of the case disclose grounds for requiring him to retire, it shall direct accordingly. (k) Where witnesses are called to give evidence, the employee shall be entitled to be present to examine the witnesses. (l) The committee shall make a report to the secretary/commission where he/it consider that the report shall be amplified in any respect or that further enquiry is desirable, may refer any matter back to the committee for further inquiry or report immediately. (m) Upon considering the report of the committee together with all evidence and material documents relating to the case, the commission is of the opinion that the employee shall dismissed, such action shall be taken immediately. (n) Where the Commission does not approve an employee’s dismissal, and does not consider that any penalty should be imposed, the employee shall be reinstated forthwith and shall be entitled to full salary. (o) Where the Commission considers that an employee deserve a lesser punishment, it shall apply such penalty as appropriate''. ''3.20: Criminal Proceedings When criminal proceedings are instituted against an employee, an action for his dismissal on any grounds in the criminal charge shall not be taken pending the outcome of the criminal proceedings''. By Exhibit 6, the Defendant dismissed the Claimant from its employment. Exhibit 6 was said to be predicated on ''INEC Condition of Service, Section 3.10(h)''. Reference to Section 3.10(h) in that Exhibit was an error. The reference was indeed to Clause 3.10(h) of the Condition of Service of the Defendant. Now, what is the procedure laid down for the Defendant to follow in matters of discipline of any of its staff? Clause 3.19 of the Staff Condition of Service of the Defendant (Exhibit 7) set out above is the reference point here. Was there a compliance with the requirement of Clause 3.19 of Exhibit 7? What were the steps taken by the Defendant before dismissing the Claimant? Were the steps in compliance with Clause 3.19 of Exhibit 7? There is evidence before me that the Claimant was issued a query to explain his role in the missing DDC machines. See Exhibit 3. Exhibit 10 is the response of the Claimant to the said query. During cross examination on the 16th of July 2013, CW1 (Claimant) testified that he was invited to and did appear before the Administrative Panel set up by the Defendant to investigate the missing DDC machines. He said he gave evidence before the Panel that he did not know anything about how the machines got missing. I should point out here that these testimonies are at variant with the Claimant averments especially paragraph 5 of his Reply to Statement of Defence filed on 17th April 2013 where he stated as follows - ''Contrary to paragraph 21 of the Defendant's statement of defence, the claimant states that he was not given any opportunity to be heard and to exculpate himself by the Administrative Panel of the defendants as he was charged for conspiracy and stealing ....'' One of the known twin pillars of the rules of natural justice is expressed by the Latin maxim audi alteram partem that is hear the other side. See Dinyadi v. INEC (2010)LPELR 952 (sc). For a Claimant as in the instant case to claim denial of opportunity to be heard is no doubt a misconception of what hearing the other side actually connotes. I find that the Defendant in dismissing the Claimant pursuant to Clause 3.10(h) of Exhibit 7 dully complied with the procedure laid down in Clause 3.19 of the same Exhibit 7 and i so hold. I further find and hold that the Claimant was afforded every necessary opportunity to defend himself, that he did appear before the Administrative Panel of the Defendant and that he defended himself before the said Administrative Panel. Before i draw a line on this judgment i am constrained to comment on an error on the part of learned Counsel to the Claimant as regards reference to Clauses 3.18 and 20 of Exhibit 7 (Staff Conditions of Service of the Defendant). Learned Counsel had urged the Court to hold that failure of the Defendant to comply with the provisions of the Clauses rendered the dismissal of the Claimant unlawful. Firstly, the Claimant was dismissed from his employment with the Defendant pursuant to Clause 3.10(h) of Exhibit 7 rather than with reference to Clause 3.18 of the same Exhibit. Indeed, the Defendant is allowed to so act under the said Clause 3.10. Secondly, Clause 3.18(c) of Exhibit 7 is solely in relation to procedure to follow where the Defendant dismisses an employee within the confines of Clause 3.18(a) & (b) of Exhibit 7. It is also only in this regard that the provision of Clause 3.20 of Exhibit 7 dealing with criminal proceedings becomes relevant. Now, Clause 3.20 of Exhibit 7 states that ''When criminal proceedings are instituted against an employee, an action for his dismissal on any grounds in the criminal charge shall not be taken pending the outcome of the criminal proceedings''. It was the argument of learned Counsel that by virtue of Exhibit 5 - the criminal charge against the Claimant, the Defendant ought to comply with the procedure set out in Clause 3.18(c), (i), (ii) and (iii) of Exhibit 7 and thus await the final conclusion of the criminal proceedings before taking any disciplinary action against the Claimant. It was the argument of Counsel that having dismissed the Claimant during the pendency of the criminal charge against him, the dismissal was unlawful. I have found and held that the dismissal of the Claimant was lawful under the relevant provisions of the staff Condition of Service of the Defendant under which he was dismissed. There is no detraction from both the finding and the holding. I have also pointed out that reference to Clauses 3.18 and 3.20 of Exhibit 7 was an error. But assuming that the reference to the said Clauses was not an error, would it have made any difference? Learned Counsel for the Claimant had submitted on page 18 of his final written address that the Defendant instituted criminal proceedings against the Claimant. The extent to which this is correct is doubtful. Reporting a matter to the Police for investigation is certainly not the same as instituting criminal proceedings which is essentially the preserve of the Hon. Attorneys General and some security agents of the State. Claimant testified under cross examination that he did not inform the Defendant that there was a criminal charge against him in respect of the missing DDC Machines. Now is it still the law that an employer must await the outcome of a criminal prosecution before taking disciplinary action against an employee whose gross misconduct also amounts to criminal act? I answer that question in the negative and i find support in the judgment of Mohammed, JSC in Eze v. Spring Bank Plc (2011) LPELR 2892 (SC) where his lordship said as follows - ''I am of the view that it was not necessary for the respondent to have waited for the prosecution of the appellant for the criminal offences disclosed in his various acts of gross misconduct, before taking steps to deal with him by appropriate dismissal. In other words, it is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offences under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service or employment''. The Staff Condition of Service of the Defendant (Exhibit 7) allowed the Defendant to dismiss the Claimant either under Clause 3.10 or Clause 3.18 depending on the circumstances of the employee concerned. I therefore find and hold that the Claimant was afforded opportunity to defend himself having been given query which he answered; having been invited to and appeared before the Administrative Panel of the Defendant; that the Defendant dismissed the Claimant on grounds of gross misconduct pursuant to Clause 3.10(h) of Exhibit 7 rather than in pursuance of Clause 3.18 of the same exhibit and that the Defendant lawfully dismissed the Claimant from its employment having complied with the requisite procedure to do same. I hold that Claimant's case lacks merit and is here dismissed. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge