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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE A. IBRAHIM DATE: 23rd June 2015 SUIT NO.:NICN/EN/113/2012 BETWEEN: EMMANUEL EJIDIKE UBA======================CLAIMANT AND THE COUNCIL, FEDERAL POLYTECHNIC OKO==========================DEFENDANT REPRESENTATION: F. A. N. Okeke Esq. appeared for the Claimant. Dr Chukwuma Ibe Esq. appeared for the Defendant. JUDGMENT This is a transferred case from the Federal High Court Awka pursuant to an order made by Honourable Justice P.F. Olayiwola on the 19th day of June 2012. In his Statement of Claim the Claimant prays the Honourable Court for the following reliefs: (1) An order declaring as null and void and of no effect the retirement of the Claimant by the Defendant from the services of the Federal Polytechnic, Oko on the facts and circumstances of this case. (2) An order setting aside the purported retirement of the Claimant as contained in the Defendant’s letter dated 28/07/10 for being wrong, unlawful, illegal, null and void and of no effect. (3) An order reinstating the Claimant in the service of the Defendant. (4) An order directing the Defendant to pay to the Claimant his full salary, allowances and entitlements from the month of June, 2010 until he retires properly from the service of the defendant. (5) N1million being general damages for breach of contract. The Writ of Summons was accompanied by a Statement of Claim, the list of documents, Statement on oath of the witness, and copies of the documents to be relied upon at trial. Upon being served with the processes of the Claimant, the Defendant entered appearance on 6/12/2010 and filed along a Statement of Defence, list of witnesses, witnesses’ statements on oath, list of documents to be relied upon and copies of the documents to be relied upon. The Claimant further filed a reply to the Statement of Defence on 8/2/2011. The case went into hearing at the conclusion of which the parties filed their respective final written addresses which they subsequently adopted. In his final written address dated 1st April, 2014 but filed on 8th April, 2014, the learned counsel for the Defendant formulated and argued two issues for the court’s determination as follows: 1. Whether Claimant’s right to fair hearing was breached by the Defendant? 2. Whether the retirement of the Claimant by Defendant on the grounds of public interest and old age is sustainable? On his own part the learned counsel for the claimant formulated and argued the following two issues: 1. Whether the termination of appointment of the Claimant is on the facts and circumstances of this case proper, lawful and in accordance with the law setting up the Federal Polytechnic Oko? 2. Whether the termination of the appointment of the Claimant is on the facts and circumstances of this case not null and void and of no effect for deprivation of his right to fair hearing? I have carefully considered the processes filed, evidence led as well as the arguments and submissions of counsel to the parties. The issue that arises for determination in my humble view is whether the termination of the employment of the claimant through his retirement by a letter dated 28/07/2010 is proper, lawful and in accordance with the law setting up the Federal Polytechnic, Oko? Before going into the issue let me state briefly the facts of the case. The Claimant was a Chief Lecturer in the Department of Social Sciences, School of General Studies in the Federal Polytechnic, Oko. On the 10th day of May, 2010 the Claimant was invited by the Servicom Unit of the Defendant for a discussion at its office the next day, the 11th day of May, 2010. At the said meeting, the Claimant was confronted with the allegation of illegal sale of text books and collection of money from students made against him by some students. The claimant averred that the names and identities of the complainants were not disclosed to him. He was also not shown copies of the allegations contained in the petitions that were written. After the session at Servicom the Claimant was suspended from duty. The Claimant further stated that on his own volition he decided to write the Rector of the Polytechnic as well as the Chairman of the Governing Council in connection with the said suspension. The Claimant was subsequently summoned before the Joint Governing Council and Academic Board Disciplinary Committee over the allegations of illegal sale of textbooks and collection of money from students. The Claimant pleaded further that the outcome of the disciplinary committee process he attended was the letter written to him dated 28th day of July, 2010 retiring him from the service of the Defendant on grounds of old age and in public interest. He is now challenging the decision to terminate him by this suit. To the defendant, there were incessant complaints by students of unauthorized sale of textbooks and collection of money from students by the Claimant in the institution. The Defendant had a unit called SERVICOM Unit which was charged with the responsibility for monitoring and handling the complaints similar to the ones made against the claimant relating to unauthorized sale of textbooks and collection of money from students. The claimant’s attention was drawn to the allegations against him. According to the Defendant the Claimant did not satisfactorily exculpate himself from those accusations and complaints. He was made to appear before the disciplinary panel of the defendant and was retired in the end on merciful grounds of old age and in the public interest. In making his case the claimant gave evidence on his own behalf as CW1 and tendered Exhibits A, B, C, D, E, F, G, G1 and H. The Defendant called two witnesses, DW1 and DW2. It also tendered Exhibits J, K, L, L1, L2, M1, M2, M3, M4 and M5. The Claimant’s case is built around the two points of the fact that the compulsory retirement is in contravention of the provisions of the statute governing his conditions of service; and that he was not given fair hearing before his termination through compulsory retirement. The issue for determination therefore will be dealt with from the perspective of the two-pronged points. On the first arm the learned counsel for the Claimant referred to the law setting up the Defendant which is the Federal Polytechnics Act, Cap F17, Laws of the Federation of Nigeria, 2004 (LFN, 2004). He stated further that the section of the Act dealing with removal and discipline of academic staff such as the claimant is S. 17. The said section 17(1) of the Act requires the Council if it appears to it that there are good reasons for believing that any academic staff etc should be removed from office on the ground of misconduct or inability to perform the functions of his office to do the following, namely: a. Give notice of those reasons to the person in question. b. afford him an opportunity of making representations in person on the matter to the Council. c. If he or any three members of the Council requests within the period of one month beginning with the date of the notice make arrangement for the following stated hereunder: d. If he is an academic staff for a joint committee of the Council and the academic board to investigate the matter and to report to the Council, or e. (not applicable). f. for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter and if the Council after considering the report of the investigating committee is satisfied that the person in question should be removed as aforesaid the Council may so remove him by an instrument in writing signed on the direction of the Council. Learned counsel submitted that all the steps enumerated in section 17(1)(3) and 5 were not complied with by the Defendant in removing him from his employment. He submitted further that it is only the Governing Council of the Defendant that had the power to remove him and not the Finance and General Purpose Committee of the said Governing Council. He pointed to Exhibit F which is a letter retiring him from service dated 28th day of July, 2010. Furthermore, he submitted that the notice to him by Servicom of the allegations was not in line with section 17(1)(a) of the Act as it is the Council that should serve him with the notice of the allegations instead. To him, SERVICOM is not the same as Council established by Section 3 of the Act. He equally referred to the fact that the suspension he had was only made by the Rector as contained in Exhibit E and submitted that he had no such power. To the claimant, what the Rector did was to initiate or direct investigation against him and the Rector has no such power to initiate or direct investigation by the Joint Committee of the Council and the Academic Board. He relied on section 17(1)(c) of the Act. The learned counsel for the Claimant further submitted that the Defendant had not followed the provisions of the Act in convoking the disciplinary committee against him and this makes its proceedings null and void. He added that the powers exercised by the Defendant are granted to it by statute which it has to comply with. Furthermore, that it is the duty of the court to ensure that the exercise of such powers is done in accordance with law, relying on the case of U.N.T.H.M.B. vs Nnoli (1994) 8 NWLR (Pt. 363) 376. He further submitted that the Defendant which has been vested with statutory power must act within the law and take care not to exceed or abuse its powers. It must keep within the limits of authority given to it, act in good faith and reasonably too. He referred to Bernard Amasike vs The Registrar General Corporate Affairs Commission and Anor (2010) 43 NSCQR 581 at 676. He added that the claimant’s appointment is governed by statute and as such its termination can only be in accordance with the provisions of the Act. Otherwise it must be declared null and void. On the second arm of the issue for determination, learned claimant’s counsel submitted that the claimant was not given fair hearing. In arguing that he stated that our law recognizes the two fundamental principles of natural justice, which are that no person should be a judge in his own cause and that the parties to a case should be given adequate notice and opportunity to be heard. These two are entrenched in the Constitution of the Federal Republic of Nigeria, 1999. He referred to the case of Adeniji vs Governing Council, YABA (1993) NWLR (Pt. 300) 426 which restates the principle of fair hearing, particularly that “a man cannot be said to have been given fair hearing when at the end of the tribunal and subsequent findings he was found liable for a misconduct of which he was not specifically accused of”, Per Olatawura JSC. In this regard, counsel stated that at the unlawful disciplinary committee the claimant was not accused of being over aged or too old to continue to serve or for being rude to the Rector or the Chairman of the Council or for being slovenly or drunk. The committee was therefore wrong to have made findings against him in respect of the above listed extraneous matters, which they were not directed to investigate. He added that it is well settled that the consequences of a breach of the rules of natural justice as enshrined in s. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria is that the decision is a nullity and liable to be set aside. He referred to the case of Adigun vs A.G. Oyo State (1987) 1 NWLR (Pt.53) 673. Learned counsel further submitted that the defendant has no power under the Act to remove a staff in public interest. It could however remove for misconduct or for good cause which is defined in s. 17 of the Act. It is clear, counsel submitted that the claimant’s appointment was not terminated for any misconduct but according to the defendant on the grounds of old age and public interest. To him, assuming without conceding that it was proved that the claimant sold books directly to students, there is no public interest involved in terminating his appointment on this ground. He could be warned. He submitted further that there is no direct evidence before the court that the claimant sold books directly to the students. He urged the court to reject his purported admission of selling the books directly to the students as contained in Exhibit N as not being credible. He urged the court to hold that the claimant was not given fair hearing. He further relied on the cases of JSC vs Dr(Mrs) Asari Young (2013) 11 NWLR (Pt. 1364), PHCN vs Offoelo (2013) 4 NWLR (Pt. 1344) p. 385 and Anya vs Iyayi (1993) 7 NWLR (Pt. 305) 316 at the point of adopting his final written address. On his own part the learned counsel for the Defendant made his submissions on whether or not the claimant was given fair hearing. He submitted that the aspect of the right to fair hearing germane to this case is restricted to the right to be heard in employment arena (with statutory flavour). He stated that the relevant law is Section 17 of the Federal Polytechnics Act, Cap F17 LFN, 2004. Learned counsel submitted that the question is: was the claimant fairly heard in accordance with the law? He answered in the positive. He stated this was copiously done by the Defendant as upon receipt of several complaints from students against the claimant accusing him of demanding money to award marks and forcing students to buy his books (Exhibit M1-M5) the Servicom Unit invited the claimant to exculpate himself, referring to Exhibits G and G1. This was followed by Defendant’s letter Exhibit E. According to counsel the claimant responded to all these by (i) a letter to the Rector dated 9/6/2010, (Exhibit L), (ii) a letter to the Chairman of the Defendant’s Council dated 17/6/2010, (Exhibit L1 and L2). The Claimant was also heard when he appeared before the Joint Governing Council and Academic Board Disciplinary Committee (Exhibit K). Learned counsel then further submitted that there is abundant and unmistakable proof that not only was the claimant heard, he was really indulged in the hearing. He added that the procedure followed in this administrative hearing cannot be impeached on any grounds. To him, the law is that the requirement that a person be given an opportunity to defend himself after being charged for acts of misconduct may be limited to a written reply. It need not be in the form of a trial, involving examination and cross examination but only a fair opportunity to correct or contradict any relevant statement prejudicial to such a person. He referred to Onwumechili vs Akintemi (1975) 5 NWLR 504 and Hart vs Military Governor of Rivers State and 2 Ors (1976) 11 SC 211. He continued that in the instant case, the claimant as has been shown was heard through his written responses and also orally before the Joint Academic Council Disciplinary Committee where he admitted that he sold textbooks to students although he denied collecting money to award marks. Throughout the hearing there was no issue of cross examination raised by the Claimant because the Committee acted on claimant’s admission. Learned counsel for the Defendant further made submissions on the issue of retirement of the claimant on grounds of public interest. He gave a definition of public interest as provided in the Black’s Law Dictionary, 8th Edition p. 1266. Counsel then went on to submit that the claimant was in a fiduciary relationship with the students he was teaching which in the public interest he must not be allowed to sell textbooks to them directly. Not only that, such direct sale of the textbooks to students was prohibited by the regulation of the defendant which he admitted to knowing about under cross examination. To counsel therefore, the public interest must be protected and that is what it did in taking the decision against him when he admitted to it. In the conclusion of his submissions counsel stated that: 1. The claimant was fully heard and his right to a fair hearing was not violated because he wrote a defence, appeared before the Disciplinary Committee, was heard wherein he admitted sale of textbooks to students thus there was no need to call for cross examination for a fact admitted needs no proof. 2. The claimant was retired on ground of public interest that is violating a regulation which is aimed at protecting the general welfare of the students which warrants recognition and protection. 3. The Claimant’s years of service and his due retirement age was taken into consideration as an act of mercy. Having considered the submissions of both parties as well as the evidence presented to the court, the first arm of the issue raised is that of the lawful termination of the employment of the claimant. Here both parties are agreed that the provision of Section 17 of the Federal Polytechnics Act Cap F17, LFN 2004 (the Act) governs the employment relationship between the Claimant and the Defendant. The point must be made that the employment of the claimant being governed by statute means that it has statutory flavour and must be terminated or brought to an end only in the manner set out by that statute. See PHCN vs Offoelo (2013), supra, p.406. The case of the claimant in the instant case is that the entire process that led to the disciplinary measure against him did not comply with the provisions of Section 17(1) of the Act. He has particularly maintained that no notice of the allegation was given to him and that his suspension was not in compliance with the said section 17 which makes the formation of the Joint Council Academic Board Disciplinary Committee to be null and void. Here let me reproduce the provisions of Section 17(1) and (2) of the Act which are apposite to the points raised by the parties. The section states as follows: 17. Removal and discipline of academic, administrative and technical staff (1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic, other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall- (a) give notice of those reasons to the person in question; (b) afford him an opportunity of making representations in person on the matter to the Council; and (c) if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements- (i) if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council; or (ii) for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and (iii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, And if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the decisions of the Council. (2) The Rector may, in a case of misconduct by a member of the staff which in the opinion of the Rector is prejudicial to the interest of the polytechnic, suspend such member and any such suspension shall forthwith be reported to the Council. From the evidence before the court, the claimant was invited to Servicom twice. The first invitation is dated 30/4/10, Exhibit G and the second one is dated 10/05/10. The question here is whether the invitation suffices as notice of the allegations against the claimant in compliance with the provisions of Section 17(1)(a) of the Act stated above? I answer this question in the negative. The allegations are clearly to come from the Council and not from any other body or unit of the polytechnic such as the SERVICOM as in this case. The Defendant has not shown how the requirement of notice was specifically fulfilled by it in this case. However, the issue of hearing as required by the provisions of statute has been argued by the Defendant to have been satisfied pointing in that regard the letters written by the Claimant, Exhibits L, L1 and L2. He also referred to the proceedings before the Joint Council Academic Board Report, Exhibit K, before which the Claimant appeared. The letters written by the Claimant are all stating his reactions to the suspension he received from the polytechnic and the fact that disciplinary process was to proceed against him. I do not however see how these letters, Exhibits L, L1 and L2 can be said to have satisfied the requirement for fair hearing. The letters were written by the Claimant at his own volition and were not even directed at the appropriate body or authority, i.e. the Joint Council Academic Board Disciplinary Committee. Then there is the report of the Joint Council Academic Board Disciplinary Committee dated 25th June 2010, Exhibit K. This report shows the allegation leveled against the claimant for which he was summoned to face the disciplinary process. The Report states that the allegation was “Illegal Sale of Text-books and Collection of Money from Students”. It also shows submission made by the Claimant, Observations by the Panel as well as the Decision that it took. Most importantly however, it recorded the fact that the claimant attended the proceedings and made his position on the allegations known. The allegation of sale of text-books was said to have been admitted by the Claimant while he vehemently opposed the issue of collecting money to pass students in examinations and was said not to have been proved in the Disciplinary Committee’s Report. Here the Claimant also substantiated the fact that he appeared before the said Disciplinary Committee and made the submissions. Having considered all the evidence before the court, it is clear to me that the Claimant was given the opportunity to appear before the Disciplinary Panel and the allegation he faced before it, namely, sale of text-books to students and collection of money from students for marks were known to him when he appeared before the said panel. Thus the attempt by the claimant to say that he was not given an opportunity to present his case before the disciplinary committee is not correct. It is my finding therefore that he was given the opportunity which he made use of. The other point though is that of whether the allegation of sale of text-books directly to the students had been proved. The Claimant’s position is that the proceedings did not represent what he said at the disciplinary committee. Here the duty of the court is to place the pieces of evidence on the scale of justice to see where it tilts. Having done that, on the said issue of sale of text-books directly to the students and on the preponderance of evidence before the court, it is my humble view that the scale tilts against the claimant. There is no basis for the court to disregard the hard evidence obtained by the disciplinary committee through the admission made that he did sell the text-books directly to the students. I therefore find that the allegation of sale of text-books directly to students which was admitted by the claimant to be against the regulations of the polytechnic was proved. However, the next point is that of the decision taken by the defendant in which the appointment of the claimant was terminated by retirement on grounds of public interest and old age. Here the Claimant has argued that even if he was found guilty of misconduct, it is not in accordance with the law to terminate his appointment by retirement on grounds of public interest and old age. The learned defendant’s counsel has sought to rely on the meaning of public interest and justify the termination of the employment of the claimant. I have to state that the employment of the claimant is one with statutory flavour. The Defendant itself has admitted to this. But I do not agree with the submission of the defendant’s learned counsel’s submission that ‘statutory flavour’ is not a magic wand to be used anyhow. To the learned defendant’s counsel, even if his employment is one statutory flavour, a notice or payment of salary in lieu of notice by the employer should bring the employment to an end. Learned counsel in his reply on points of law relied on the case of Adedayo Sunday Joseph & 2 Ors vs Kwara State Polytechnic (2013) WRN 106 @ 130 in asserting that the Claimant cannot be forced on the Defendant. The only thing that should be pointed out to learned counsel is that, the dictum cited which states that you cannot reinstate a dismissed employee applies only to private contract of employment. In other words, the correct position of the law is that in a situation where the employment is one with statutory flavour, the Court can order reinstatement if the termination was not in accordance with procedure stipulated in the statute. Thus the statutory employer cannot just wake one morning and hand over a notice of termination to the employee in an employment with statutory flavour. It must be on the basis of a misconduct which must be fully investigated by the appropriate body and established before the employment can be brought to an end. See U.N.T.H.M.B. vs Nnoli (1994), supra, cited and relied upon by the learned claimant’s counsel. See also the case of PHCN vs Offoelo (2013), supra. In the case of Oloruntoba-Oju & Ors vs Abdulraheem & Ors (2009) LPELR-2596 (SC) pp. 63-66, the Supreme Court held amongst others, that: Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision. This clearly puts to rest the point made by the learned defendant’s counsel that the giving of the notice by the employer to the employee would terminate the contract because they had agreed to that. Having said that the issue is whether the decision to terminate the Claimant by retiring him on grounds of public interest and old age as communicated in Exhibit F is in accordance with the statutory provisions governing the employment of the claimant with the defendant. To start with old age and public interest were not the issues for which he appeared before the disciplinary committee of the defendant. Secondly, the defendant appears, by its action, to have condoned the action of the claimant in not meting out the outright dismissal of the claimant, which such offences of misconduct ordinarily attract. The defendant has decided to retire the claimant. That retirement must be in compliance with the statutory provisions only. The arguments and submissions that the Defendant was close to his retirement date is neither here nor there because the retirement must be made in strict compliance with the provisions of the relevant statute.