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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: February 19, 2015 SUIT NO. NICN/CA/74/2013 BETWEEN DICKSON D. BOLOU - CLAIMANT AND 1. FEDERAL COLLEGE OF EDUCATION, OBUDU DEFENDANTS 2. HONOURABLE MINISTER OF EDUCATION REPRESENTATION Peter Erivwode Esq and Edidiong Usungurua Esq for claimant. Richard O.S.Ogbeche, with P.Ufada for 1st defendant. No appearance for 2nd defendant JUDGMENT The claimant commenced this suit in the Federal High Court Abuja by Writ of Summons on January 8, 2010 seeking the following reliefs: a. A declaration that the termination of the Plaintiff's appointment as contained in the Memorandum of Termination of Appointment dated 12th October 2009 is unlawful, null, void and of no effect whatsoever. b. A declaration that the directive that the plaintiff refund the sum of 4.2 Million Naira is unlawful, null, void and of no effect whatsoever. c. A declaration that the Visitation Panel exceeded its powers and terms of reference and acted in breach of fair hearing. d. A declaration that the decisions of the Governing Council of the Federal College of Education Obudu, as they relate to the plaintiff, were reached without affording him prior opportunity to answer and defend himself against the allegations leveled against him. e. An order re-instating the plaintiff into the service of the 1st defendant as its Director of Works. f. An order that the plaintiff be paid all arrears of remuneration and outstanding benefits stopped as a result of the unlawful termination of employment. Accompanying the writ is the statement of claim, witness statement on oath, certificate of Pre-Action counseling and copies of the documents to be relied upon. The 1st defendant entered appearance on February 10, 2010 and filed its statement of defence, witness statement on oath, and copies of documents to be relied upon. The 2nd defendant entered a conditional appearance on January 29, 2010 but did not file a statement of defence. The claimant and the 1st defendant joined issues. On the 29th January 2013, the matter was transferred from the Federal High Court Calabar Division to this Court. The claimant’s case on the pleadings is that he is a staff of the 1st defendant and that a Visitation Panel was appointed on 12th August 2004 to report into the affairs of the 1st defendant between 1999 and 2003. The claimant pleaded that the panel took decisions and recommended disciplinary actions against him without affording him any opportunity to answer, explain or defend himself. He pleaded that he was never invited, summoned nor questioned by the panel on the matters which the panel held him liable for in its report relied upon to terminate his appointment as Director of Works. He averred that his appointment was terminated based on the report and the directives of the Governing Council in her meeting of Thursday, 08/10/09; and the termination was communicated vide a memorandum dated 12/10/09 which also directed him to refund the sum of 4.2 Million Naira to the Federal College of Education Obudu. The claimant pleaded that he does not have in his possession or custody any money belonging to the 1st defendant; and that he did not receive the sum of 4.2 Million Naira as un-retired purchase advance at anytime. He averred that the 1st defendant had never demanded for the sum from him. The claimant pleaded that a criminal allegation of misappropriation is inferred from the directive to refund the sum of 4.2 Million Naira even though there was no reference or report to the Police before he was adjudged guilty. He pleaded that the visitation panel was set up to look into and report on the affairs of the institution and was not intended to be a disciplinary panel; and its directives that his appointment be terminated was in excess of its powers and terms of reference. The claimant pleaded that the Governing Council of the Federal College of Education Obudu did not invite, summon, question or query him regarding any allegation against him before taking the decision to terminate his appointment. The claimant testified as the only witness in support of his case. He adopted his statement on oath. It was in the exact terms of the pleadings as his evidence in chief. Under cross-examination he told the court that there was an Administrative Panel of Inquiry into the affairs of the 1st defendant in 2001 and the recommendation was that he be reverted to his former position. He told the court he was recommended for demotion, rather he was promoted. The claimant told the court that there was another visitation panel in 2004 covering the period 1999 to 2003 that was not sympathetic to his case. He said that he was not given the opportunity to properly defend himself as he spent less than ten minutes before the visitation panel and was not invited again. The claimant told the court that before the white paper was presented, a panel came from the Federal Ministry of Education and that he made exhibit D3 to the panel and also authored exhibit D8. The claimant told the court that his termination is not in accordance with his conditions of service. He said he has been retiring purchase advances he collected and did not know how the 4.2 Million Naira un-retired purchase advance came about. He said it was false that the sum was the unretired purchase advance collected by him. The claimant told the court that when his appointment was terminated he made several appeals to the Minister and that it is not to his knowledge that some where being attended to before he came to court. He told the court that he does not want to work in the Public Service again. The claimant then closed his case. The 1st defendant’s case on the pleadings is that the claimant was its staff until his appointment was terminated on the 12th October 2009. It pleaded that the 2nd defendant in his position as the Visitor to Federal Universities, Polytechnics and Colleges of Education set up a Visitation Panel to all these Institutions including the 1st defendant Institution. The 1st defendant averred that the visitation panel’s terms of reference covered the period 1999-2003. The Panel visited the 1st defendant Institution and submitted its report to the Federal Government. It pleaded that the Federal Government expressed its view on the report in a White Paper in December 2008. That the purpose of the Visitation Panel is to enable the Visitor, keep abreast of happenings in these Institutions for the purpose of good governance and public interest. The 1st defendant pleaded that the Visitation Panel at the end of its visitation normally issues a report to Government stating its observation and recommendations which the Government can either accept or reject. The 1st defendant pleaded that the Visitation Panel invited and interacted with all individuals and groups relevant to its terms of reference including the claimant. It pleaded that the claimant confirmed he was contacted and interacted with by the Visitation Panel in his submission to the Governing Council during the public presentation of the report titled ‘REJOINDER ON ISSUES RAISED AGAINST MR. BOLOU DIGAN DICKSON’. The 1st defendant averred that the visitation panel in its report did not recommend the termination of the claimant’s appointment and it never sat as a disciplinary committee or sanction anybody including the claimant but only made recommendations. The 1st defendant pleaded that the claimant received purchase advances that he has not yet retired amounting to 4.2 Million Naira which he is expected to retire or the amount be deducted from his salary or entitlements at cessation of service. That there were earlier directives of the Visitor emanating from the 2001 White Paper in respect of the Report of the Administrative Panel of Inquiry relating to the claimant’s gross incompetence as Director of Works which had not yet been implemented. The 1st defendant averred that it complied with the condition of service in the termination of the employment of the claimant and that the claimant did not exhaust all channels available to address or remedy any purported unsubstantiated allegation in the report before going to court. That the claimant’s conduct in appealing to the Ministry for a reconsideration of his termination as evidenced by the reply of the Honourable Minister of Education (the 2nd defendant herein) to the claimant on letter dated 15th December, 2009, makes this action an abuse of the court process. The defendant called one witness Mrs Grace Undie (DW) a Deputy Registrar in support of its case. Her evidence in chief was by witness statement on oath which she adopted and was in terms of the pleadings. Under cross-examination DW told the court that the facts of this case are contained in the report of the Visitation Panel. She admitted that she was not a member of the Visitation Panel and that the Panel did not recommend that any person’s appointment be terminated. She told the court that she did not know if the claimant was paid three months salary in lieu of notice. The defendant then closed its case. The parties filed their final addresses. The defendant’s final address is dated 6th May 2014 and filed the same day. The claimant’s address is dated 10th June 2014 but filed on the 16th June 2014. The defendant’s reply on point of law is dated 25th June 2014 and filed the same day. The parties adopted their final addresses. Learned counsel to the 1st defendant submitted the following issues for determination: 1. Whether the visitation panel exceeded its powers and terms of reference, acted as a disciplinary panel, recommended the termination of the claimant, and was in breach of fair hearing. 2. Whether the Governing Council of the 1st defendant took any decision against the claimant and if the termination of the claimant’s employment was not in accordance with the rules and regulations guiding his condition of service. 3. Whether the Governing Council of the defendant's College made any allegation against the claimant and if the demand for the refund of the sum of 4.2 Million Naira is not proper or inferred a criminal allegation of misappropriation. 4. Whether the claimant has exhausted all internal machinery commenced by him before going to court. 5. Whether the claimant is entitled to the claim for reinstatement into the services of the 1st defendant, payment of arrears of remuneration and outstanding benefits from the defendants. He submitted that the allegation that the visitation panel acted as a disciplinary committee is not supported by the evidence; that the onus is on the claimant to show how the panel exceeded its powers, terms of reference and acted as a disciplinary panel citing A-G Fed v. A-G of the 36 States [2002] 6 MJSC (Pg.111) para D - E. He further submitted that there is no evidence before the court that the claimant was not given a fair hearing by the visitation panel even though the claimant was not on trial before the panel. That on the contrary, the evidence adduced shows that the claimant was given a fair hearing. Counsel submitted that the evidence shows that the Governing Council of the 1st defendant only acted on the directives of the Federal Government as contained in the visitation panel report of January 2007 and the claimant’s appointment was properly terminated in compliance with the regulations governing the terms of service of staff of Federal Colleges of Education. He cited Olufeagba v. Abdul-Raheem [2012] 3 NLLR (Pg 128-129), Imonikhe v. Unity Bank Plc [2011] 5 MJSC (Pt II) 194. Counsel submitted that the claimant he did not adduce any evidence of retirement of the 4.2 Million Naira purchase advances before the court. He submitted that the evidence shows that the claimant did not exhaust all the internal processes before going to court. It was his submission that the claimant is not entitled to the claim for reinstatement having stated under cross examination that “I do not want to work in the public service again”. He submitted that the court cannot impose a servant on an unwilling master and that the claimant having failed to plead satisfactorily special damages or proved same, the court cannot make any award in respect of this claim referring to IHABUMB v ANVIP [2012] 3 NILR 21. Counsel submitted that the claimant has not proved or discharged the onus placed on him by law. He urged the court to dismiss the claimant’s claim with costs of N100,000.00. Learned counsel to the claimant submitted the following issues for determination: 1. Whether the defendants’ failure to comply with the conditions precedent to a valid termination of the claimant’s employment does not render the termination invalid, null and void and of no effect whatsoever? 2.Whether the termination of the claimant’s Appointment on the recommendation of the Government’s visitation panel is not void and of no effect in the light of the facts that the Panel was not empowered to recommend or mete out sanctions and the claimant not given an opportunity to defend himself on the allegations standing against him. 3. Whether there is any evidence to sustain a claim for the return by the claimant of the sum of 4.2 Million Naira or any money whatsoever. 4. Whether from the circumstances of this case and the evidence led, the claimant is not entitled to the reliefs sought. He submitted that the evidence shows the defendants’ failure to comply with the procedure for termination of the claimant’s appointment renders the termination of his appointment null and void as the claimant’s employment is one with statutory flavour. He submitted that the claimant was not paid three months’ salary in lieu of notice, was not issued at least two prior warnings and he was not given the opportunity to defend himself against the allegations leveled against him. He submitted that a condition precedent delays the vesting of a right on a party and until that condition precedent is met, no right accrues to such person, institution or authority referring to Igercare Development Company Ltd v. Adamawa State Water Board & Ors [2008] LPELR 1997 (SC) P. 25, Orakul Resources Ltd v. NCC [2007] 16 NWLR (Pt 1060) 270 at 307, Ozobia v. Anah [1999] 5 NWLR (Pt. 601) 13, Aina v. Jinadu [1992] 4 NWLR (Pt. 233) Pg. 91, U.N.T.H.M.B .v. Nnoli [1994] 8 NWLR (Pt. 363) 413. On the issue of fair hearing he cited ZIIDEEH V. R.S.C.S.C [2007] 3 NWLR (PT 1022) P. 568, Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) p. 618, Afribank (Nig) Plc v. Osisanya [1999] LPELR-5206, Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre, Zaria & Or. [1991] 5 NWLR (Pt. 192) 388, Olufeagba & Ors v. Abdul-Raheem & Ors [2009] LPELR-2613. He submitted that the termination is null and void. Counsel submitted that the terms of reference did not empower the panel to recommend the termination of the claimant’s appointment. He submitted that once an admission is made by a party, the facts admitted need not be proved citing H.N.B. Ltd v Gifts Unique Nig Ltd [2004] 15 NWLR (Pt 896) 408, Onyenge v Ebere [2004] 13 NWLR (Pt 889) 20. He submitted that the recommendation for the termination of the claimant's appointment and the termination on the basis of that recommendation is predicated on a non-existent foundation citing Mcfoy v. UAC Ltd [1961] 3 WLR 405. He submitted that the directive of the defendants to the claimant to refund the sum of 4.2 Million Naira amounts to a criminal allegation of fraud or misappropriation of the said sum by the claimant. That whenever an allegation of crime is raised the proper forum for determination of such allegation is the court of law citing Apugo v. State [2006] 16 NWLR (Pt.1002) 249, Okocha v. C.S.C Edo State [2004] 3 NWLR (Pt. 861) 507. He argued that the visitation panel cannot indict the claimant and order that he return the sum of 4.2 Million Naira to the defendants. It was his contention that there was no evidence to support the claim for the refund of 4.2 Million Naira. Counsel argued that on the evidence adduced the claimant has proved his case to be entitled to the reliefs sought. He submitted that the 1st defendant did not prove its case nether has it adduced any evidence to discredit the case of the claimant. It was his contention that the claimant is not under any obligation to exhaust any internal processes before seeking redress in a court of law. He submitted that reinstatement of the claimant is consequential upon the finding of the court that the termination of the claimant's employment was done without due process based on the evidence before the court and nothing more. He argued that when the law specifies a mode of doing a particular thing such mode must be followed to the letter referring to Cudon v. Abare [2001] 11 NWLR Pt.723 pg.114. Replying on point of law, he submitted that the cases cited by the claimant are not relevant to the issues raised. He submitted that the 1st defendant discharged the burden of proof after it shifted and urged the court to dismiss the claim with cost. I have carefully considered the processes filed, the evidence led, written submissions and authorities cited. The issues that arise for determination in this judgement are: (i) whether the claimant was given a fair hearing; (ii) whether on the pleadings and evidence the claimant ought to be entitled to the reliefs sought. The law is settled that in the determination of the employment rights, the claimant must place before the court the contract of service that provides for his rights and obligations. See Fakuade v. O.A.U.T.H. [1993] 5 NWLR (Pt. 291) 47, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. The claimant has placed before the court his letter of appointment as Director of Works and Estate which states that all other conditions and terms are as may be determined by the Governing Council in consultation with the Federal Civil Service Commission. There is no dispute between the parties that the 2nd defendant in his position as the Visitor set up a Visitation Panel to look into the affairs of the 1st defendant Institution between 1999 and 2003. Both parties have put in evidence the Federal Government’s White Paper on the Visitation Panel’s report. The claimant has alleged that the Visitation Panel exceeded its terms of reference as it lacked the vires or authority to punish or recommend disciplinary measures. I will reproduce below a few of the terms of reference of the Visitation Panel I consider to be relevant contained in Exhibit CW3: 1.1.2. Look into the leadership quality of the college in terms of the roles of Governing Council, the Provost and other principal officers. 1.1.3. Look into the financial management of the institution over the recommended period and determine whether it was in compliance with appropriate regulations. 1.1.4. Investigate the application of funds particularly special grants and loans meant for specific projects in order to determine the status and their relevance for further funding. 1.1.6. Study the general atmosphere of the institution over the period in question. In particular, comment on the general conduct and comportment of all personnel of the institution especially the students, staff and managers, and advise as to whether the correct training is being given and how necessary corrections may be made. This should include the relationship between the institution and the host community over the period in question. 1.1.9. Advise on any and all other aspects of the Institution that you consider should be of interest to both the Visitor and the public and to the attainment of the objectives for which the Institution was set up. It is quite clear from all the terms of reference that the Visitation Panel was empowered to inquire, investigate, study, examine, recommend and advise the Visitor. I find from exhibit CW3 that the Panel kept to its terms of reference and did not go outside its mandate; and I so hold. On its modus operandi, the Panel visited and met with individuals and groups that were relevant to the assignment. The evidence shows that the claimant as Director of Works and Estate is one of the principal officers who seen by the Panel. The claimant admitted that he appeared before the Visitation Panel. The Panel on completion of its assignment made the following findings on terms of reference 1.1.3: (xi) The Bursar helped the college to waste scarce resources through over invoicing, over-pricing and sometimes double payments for goods supplied especially petroleum products and air conditioners (see purchase of 5 units of air conditioners on 10/3/99). This was done with the Director of Works under the so-called direct purchase practice. (xiii) He encouraged violation of financial regulations as cash is paid out to loyalists such as the Director of Works for jobs given out in some other names only for the cash to be received by the DOW…. The college seemed to have lost more money through the so-called direct purchase done by the Director of Works. The Panel then made the following recommendation: (g) The Director of Works should be made to pay back the wastage he caused the College. He should refund N300,000.00 he claimed to have spent transferring DSTV from one location of the College to the other. He should refund the N410,000.00 he claimed to have spent to purchase another DSTV for the College. The sum of N816,000.00 should be recovered from him being money he made the College to lose through over-invoicing and over pricing of various items between February and July 1999. The Visitor accepted the recommendation and directed that: (i) Mr Digan Dickson Bolou---Director of Works should refund N1,526,000 being the sum of money lost by the College through over-invoicing and over pricing of various items between February and July 1999. On terms of reference 1.1.9 the Panel made the following findings: 10.4.1- The Director of Works and Estate, Mr Digan Dickson Bolou. The Works and Estate is a very heavy schedule and its inefficiency or ineptitude bears directly on the ability of any educational establishment to achieve its mandate. The state of disrepair, the poor finishing of the works in the College and the inordinate costs of maintaining vehicles and equipment write volumes on the competence of the incumbent Director, Mr Digan Dickson Bolou. The Panel recalls that the Administrative Panel of Inquiry has described Mr Bolou as “grossly incompetent” to handle the job of Director of Works and recommended be reverted to Principal Quantity Surveyor on HATISS 11 in the report of October 2001. Rather than the College carrying out this recommendation, Mr Bolou has been appointed a substantive Director of Works and Estate, a post that is clearly above his level of professional and personal competence. The Panel made the following recommendation: The College should be assisted with the services of competent civil engineers and architects in the Works and Estate Department. Mt Bolou was appointed DOW following due interview and it will be wrong to talk of reverting to a lower position. This recommendation was not accepted by the Visitor who then expressed his displeasure in his comment reproduced as follows: Visitor frowns at the fact that the Governing Council and Management failed to implement the Visitor’s earlier directives emanating from the White Paper 2001 Report of the Administrative Panel of Inquiry as it relates to the Director of Works (Mr Digan Dickson Bolou) “gross incompetence”. In view of the above and the Visitor’s earlier decision in 7.2 and 7.8 of this White Paper, the Visitor directs that the appointment of Mr Digan Dickson Bolou be terminated forthwith. The evidence before the court is that another Panel came from the Federal Ministry of Education and presented the report of the Visitation Panel for a public review before the White Paper was released. The claimant submitted his written defence exhibit DW3 to the Review Panel and wrote exhibit DW8 to the Hon Minister where he expressed his gratitude for the opportunity given to him to defend himself on the allegations against him in the report of the Visitation Panel. Fair hearing simply means, “hear the other side”. See Imonikhe v Unity Bank Plc [2011] 12 NWLR (Pt 1262) 624. By the claimant’s own evidence, he was heard by both the Visitation Panel and the Review Panel; and thereby given ample opportunity to defend himself which he did. I find that the claimant was not denied a fair hearing and I so hold. From the evidence, the Visitation Panel did not recommend the termination of the claimant’s appointment. The Visitor after considering the reports of the Panels and being adequately convinced that the claimant committed the allegations levelled against him, directed that the claimant’s appointment be terminated. The claimant has argued that the procedure for termination was not complied with. The relevant provision is clause 7.2 of the Regulations governing the claimant’s conditions of service exhibit DW5. It provides that: Where it becomes necessary or desirable for the college to discontinue with the services of a staff member on permanent appointment, the College shall discontinue with the services of such member of staff by giving three months salary (lump sum) in lieu of notice. With regards to all staff on temporary appointment and a junior staff, termination of service shall be by giving of one month’s notice in writing or payment of one month’s salary to the staff member concerned in lieu of notice. At this juncture it is necessary to reproduce the claimant’s letter of termination in order to ascertain whether there was compliance with clause 7.2. Mr Dickson D. Bolou, Federal College of Education, Obudu. MEMORANDUM OF TERMINATION OF APPOINTMENT In pursuance to the Federal Government directives on your termination as contained in the Government Visitation Panel report of January 2007 into the affairs of the Federal College of Education, Obudu, I am on the directives of the Governing Council in her meeting of Thursday 8/10/2009 to inform you that your appointment with the Federal College of Education, Obudu has indeed been terminated with immediate effect. You are directed also to refund the sum of N4.2 million to the College. The College Bursar is also required to compute and pay to you your three months salary in lieu of notice. You are further requested to hand over all College property in your possession to the officer next in rank to you before you are finally disengaged. Management wishes you good luck in your future endeavours. James Abellegah (Ag Registrar & Secretary to Council) It is clear from the letter that the Federal Government found it necessary and desirable to terminate the claimant’s appointment and directed the 1st defendant’s Governing Council accordingly. I hold that there is compliance with the provisions of clause 7.2 and that the termination of the claimant’s appointment has been properly carried out in accordance with his contract of service. The claimant has denied that he is indebted to the 1st defendant in the sum of N4.2 Million in respect of unretired purchase advances. There is no documentary evidence adduced by the 1st defendant to substantiate the refund of this sum contained in the memorandum of termination. The law is that he who asserts must prove. See Section 131 (1) & (2) of the Evidence Act. The 1st defendant has not discharged the burden of proof in respect of the sum of N4.2 Million the claimant is directed to refund. Consequently, this refund directive is set aside. However, the claimant is to refund to the 1st defendant N1,526,000.00 (One Million, Five Hundred and Twenty Six Thousand Naira) being the sum of money lost by the College through over-invoicing and over pricing of various items between February and July 1999 as directed by the Visitor. The sum is to be refunded within 30 days from the date of this judgement. For all the reasons stated above, the claimant’s case fails. It is hereby dismissed. Costs of N50,000.00 is to be paid by the claimant to the 1st defendant. Judgement is entered accordingly. ____________________________ Hon Justice O.A.Obaseki-Osaghae