IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD
DATE: MARCH 26, 2021 SUIT NO: NICN/EN/101/2015
Mr. Onwuchekwa Kingsley I. Claimant
1. The Governing Council
Federal Polytechnic, Oko
2. Prof. Godwin Onu
The Rector Federal Polytechnic, Oko
3. Mrs. Njaka S.N.
The Registrar, Federal Polytechnic, Oko
4. Mr. A.O. Anukam
PAR (P), Federal Polytechnic, Oko - Defendants
A.N.I. Nnadozie with C.C Ibeabuchi for the claimant.
Professor Ilochi A. Okafor (SAN), FCIArb with C.J.S. Azoro for the defendants.
1. The claimant commenced this action vide a complaint filed on 19th November 2015 together with the accompanying originating processes. By order of Court granted on 6th April 2017, the claimant amended his statement of claim. By another order of Court granted on 8th November 2017, the defendants amended their statement of defence, list of witnesses list and copies of documents and witness statement on oath. In response, the claimant filed a reply to the amended statement of defence dated 10th July 2017 and filed on 18th July 2017. By the statement of facts, the claimant I praying for the following reliefs against the defendants:
i. A declaration that query dated 23rd December 2010 issued to the claimant by the defendant and upon which the claimant was suspended is malicious without justification whatsoever and therefore null and void.
ii. A declaration that the defendants query dated 17th September, 2015 against the claimant is malicious, ill-conceived, illegal, unlawful and pre-meditated and an orchestrated attempt to resuscitate the old case thereby finding a fertile ground upon which they can either suspend or dismiss the claimant from work.
iii. A declaration that the statement “evidence from your past records strongly buttressed the allegations that you have been in the habit of extorting money from students any how without any regards to the extant Public Service Rules (PRS)” contained on the 3rd and 4th defendants query dated 17th September 2015, is a judgment against the claimant without fair hearing, illegal, unlawful and therefore null and void.
iv. A declaration that the continued seizure and withholding of the claimant 2011 promotion and the associated benefits upon several request for the release and payment is illegal, wrongful, unlawful and deprivation of the claimants (sic) right to the enjoyment of the promotion and associated benefits.
v. A declaration that the letter/query issued to the claimant by the 3rd defendant dated 23rd October, 2015 is null and void having been responded to by the claimant before it was issued.
vi. An order of this Honourable Court setting aside the defendants query dated 17th September, 2015 issued to the claimant and all the steps taken in connection therewith for being malicious, ill-conceived and an attempt to outright dismissal of the claimant from service.
vii. An order of this Honourable Court restraining the 2nd and 3rd defendants from interfering unlawfully from the services of the claimant to the Federal Polytechnic Oko, Anambra State.
viii. A mandatory order of the Court compelling the defendants to forthwith release the claimant 2011 promotion and pay him the accrued benefits and entitlements perquisite to his office.
ix. An order of Court directing the defendants to produce the claimant’s original staff file and all documents therein which has been in the custody of the defendants since the year 2005.
x. An order of Court awarding the sum of ₦20,000,000.00 (Twenty Million Naira) only against the defendants and in favour of the claimant as general and exemplary damages for the financial and economic hardship, physical, mental and psychological agony, public odium, derision and obloguy (sic) that the claimant suffered from his place of work and from reasonable members of the public since the withholding of the claimant 2011 promotion and associated benefits and suspension and the issuance of frivolous queries
xi. An Order of perpetual injunction retraining the defendants, their agents, servant, privies or howsoever constituted from further suspending or dismissing the claimant on the basis of the alleged malicious pre-meditated query dated 23/10/2015
xii. An order of Court to declare that the backdated purported illegal, concorted (sic) dismissal, letter is null and void and of no effect
xiii. A mandatory order directing the defendants to release the claimants 2014 promotion, and arrears and pay him his due benefits
xiv. A mandatory order of the Court compelling the defendants to forth with release his 2017 promotion and pay him the accrued benefits and entitlements perquisite to his office.
2. At the trial, the claimant testified on his behalf as CW and tendered Exhibits CW1 to CW50. Lilian Obinwanne, a banker with First Bank Plc at Onitsha Ogbaru market testified as CW2 and tendered Exhibits CW2/1 to CW2/5 under cross examination. While Nnena Nneka Egbo Business Manager with 1st Bank Plc, Emene Branch testified as CW3 and tendered Exhibit CW3/1. Ekwueme Happiness, Head Branch Services, First Bank Plc testified as CW4 and tendered CW4/1, while Obinna Onyenali, a banker with First Bank Plc testified as CW5 and tendered Exhibits CW5/1 to CW5/3.
3. For the defendants, Ota Onuma Ndubuisi, Desk Servce Improvement Officer and civil servant at the Federal Polytechnic Oko, Anambra State under Rotary Department testified as DW and tendered Exhibits DW1 and DW2; and tendered Exhibits DW3 under cross examination. Alexander Onyewuchi Anukam, a civil servant and Deputy Registrar at the Polytechnic Oko, testified as DW2 and tendered Exhibits DW2/1 to DW2/40; DW2/41 under cross examination, DW2/42 under re-examination and DW2/43 from the Bar.
4. At the close of trial, parties filed their respective final written addresses. The defendants’ final written address dated 1st December 2020 was by order of Court granted on 2nd February 2021, deemed properly filed and served, while that of the claimant dated 21st December 2020 and filed on 23rd December 2020 was deemed as adopted by Order 45 Rule 7 of NCN Rules 2017. The defendants’ reply on points of law is dated 28th January 2021.
THE CASE BEFORE THE COURT
5. The case of the claimant is that he is an employee, academic staff and lecturer in the Department of Marketing, Federal Polytechnic Oko; that on 23rd June 2010 he petitioned the 2nd defendant over threats to his life by two (2) ND II students; that no action was taken and he (claimant) was rather queried-query dated 23rd December 2010- on the grounds of selling handouts and textbooks to students contrary to the school management directive; that he replied to the query denying all the allegations and stated that he adhered strictly to the marking scheme. That he was indefinitely suspended by the defendants vide letter dated 12th November 2011 and placed on have salary; that on 1st December 2011, he appeared his suspension and requested that his suspension be reconsidered and withdrawn; that he received a letter from defendants dated 20th January 2012 inviting him to appear before the Senior Staff Disciplinary Committee (SSDC) of the Polytechnic; that following interventions, he was recalled under a letter from the Polytechnic Registrar (3rd defendant) dated 22nd May 2012; that he protested where paragraph 4 of the recall letter suggested that he associated or involved himself with any bad act(s); that he urged 2nd defendant to expunge the said paragraph 4 in order to avoid misrepresentation.
6. The claimant went on that he was again queried by the defendants on 17th September 2015 for illegal setting of exams and extortion of money from students; that in response to the query, he denied all the allegation vide letter dated 21st September 2015 and maintained that he never conducted any illegal examination or extorted money from any student or any other person; that he complied with the directives of his Head of Department. That on 23rd October 2015, he was queried for failure to respond the query issued to him; that in response, he stated that he had responded on 2nd November 2015 and his answer/response was collected by one Joseph G.N. of the Registrar office. That he did not absent himself from office/duty as alleged-citing the attendance register to buttress his innocence. That a second invitation was extended to claimant to appear before the disciplinary committee on 2nd December 2015. Management delegated armed security people who dragged him out of school gate alleging he had already been dismissed; that a dismissed letter was backdated to 5th November 2015. Defendants created the impression that claimant refused to collect his dismissal letter and that claimant’s November 2015 salary was not paid by the defendants (by erasing three bank transactions from claimant’s bank statement with account number 2005963676).
7. In proof of their case, the defendants called two witnesses who testified as DW1 and DW2. During the course of trial, the defendants’ witnesses tendered several documents which were admitted in evidence as exhibits without any objection; and defendants prayed the Court to dismiss this suit with cost in the interest of justice.
THE SUBMISSIONS OF THE DEFENDANTS
8. The defendants submitted seven issues for determination, namely:
1) Whether this suit is properly constituted in terms of the parties sued as defendants herein
2) Whether Exhibits CW17, CW18, CW19, CW20, CW33, CW35, CW37, CW38, CW43, CW44, CW45, CW49 and CW4/1 ought to be admitted in Evidence.
3) Whether the entire evidence of CW4, Happiness Ekwueme ought to be expunged from the records of this Honourable Court.
4) Whether the queries dated 23/12/2010, 17/9/2015 and 23/10/2015 are malicious, or in any way violated the claimant’s right to fair hearing, and whether this Honourable Court can declare same as null and void.
5) Whether the claimant has an actionable right to promotion, and whether the claimant has proved that the defendants withheld his 2011 and 2014 promotions.
6) Whether the claimant has an actionable right to be given his original staff file and documents therein.
7) Whether the claimant has proved that the defendants unlawfully interfered with his employment as to be entitled to general and exemplary damages against the defendants.
9. On issue (1), the defendants submitted that by a General form of Complaint dated and file on 19/11/2015, the claimant commenced this suit against the following persons as defendants, viz:
a) The Governing Council, Federal Polytechnic Oko
b) Prof. Godwin Onu, Rector FPO
c) Mrs. Njaka S.N, Registrar FPO
d) Mr. A.O. Anukam, PAR (P) FPO
That going by the above, it is submitted that this suit is incompetent by reason that the proper party was not joined as defendant to this suit; that paragraph 1 of the claimant’s Amended Statement of Claim unequivocally states that the contract of employment in this case is as between the Federal Polytechnic Oko and the claimant; that the said Polytechnic is a legal entity established under section 1 of the Federal Polytechnics Act; that the 1st defendant is a separate legal entity established by section 3 of the Federal Polytechnics Act as a statutory agent of the Polytechnic. That similarly the office of Registrar and Rector of the Polytechnic were respectively established by sections 5 and 8 of the Federal Polytechnics Act as statutory agents of the Polytechnic; that the 4th defendant is merely a staff of the Polytechnic. Paragraphs 2-5 of the Amended Statement of Claim.
10. The defendants went on that since the contract of employment was between the claimant and the polytechnic, and all the defendants are merely agents of the said Polytechnic, the Polytechnic ought to have been joined as a defendant to this suit as being responsible for the acts or omissions of her agent. See Khonam v. John (1939) (sic) 15 NLR 12; Niger Progress Ltd v. NEL Corp (1989) 3 NWLR (Pt.107) 68 and Carlen (Nig) Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631 at 636 CA. To the defendants, all the alleged actions of Prof. Godwin Onu and Mrs Njaka S.N. vis-à-vis the claimant in relation to the subject matter of this suit were performed in their official capacity as Rector and Registrar of the Polytechnic respectively; that the said Prof. Godwin Onu and Mrs. Njaka S.N. were thus merely agents of a disclosed principal, the Federal Polytechnic Oko and cannot bear any personal liability toward the claimant in the circumstances of this suit, hence this suit is founded on the contract of employment between the claimant and the Federal Polytechnic Oko; that the same rule applies to Mr. A.O. Anukam, the 4th defendant who is merely an employee of the Polytechnic. See also Samuel Osigwe v. PSPLS Management Consortium Ltd & ors (2009) 3 NWLR (Pt. 1128) 378.
11. To the defendants, the import of Order 13 Rule 4 of NICN Rules 2017 is that a person can only be joined as defendant to a suit if the right to a relief is alleged against him; that in the absence of any complaint against a person for an act or omission giving rise to a claim for relief against such person, the said person thus ought not to be joined as a defendant in a suit. See Obasohan v. Ogida (2018) LPELR- 46123 (CA) 1 at 22-23; Okukuje v. Akwido (2001) 3 NWLR (Pt. 700) 261. That a corollary to this rule is that unless a person’s right or interests are likely to be affected by the outcome of a suit, or his presence is necessary for the suit to be fully and effectively determined, the said person ought not to be joined as a party to the suit. See Ayorinde & ors v. Oni & ors (2003) 8 NWLR (Pt. 649) 348; Green v. Green (1987) 3 NWLR (Pt.61) 480.
12. That in the instant case, the claimant throughout the entire gamut of his pleadings, i.e. the Amended Statement of claim and also the Reply to Amended Statement of Defence, as well as the evidence presented during the trial, did not make any complaint or allegation against the 4th defendant; that the claimant did not allege that the 4th defendant took or omitted to take any action affecting the claimant’s employment in any way. That claimant did not also allege that the 4th defendant is responsible or vicariously liable for the actions of any other person affecting the claimant’s employment; that clearly this suit can be concluded and determined without the 4th defendant being joined as a party thereto, and without the interests of the 4th defendant being affected in any way; that in the circumstances, it is submitted that the 4th defendant ought not to have been joined as defendant to this suit.
13. Regarding issue (2), the defendants contested the admissibility of Exhibits CW18, CW49 and CW4/1 on grounds that the claimant in his entire pleadings, i.e. the Amended Statement of Claim and Reply to Amended Statement of Defence never pleaded Exhibits CW18, CW49 and CW4/1; that the fact of the existence of the said documents surfaced for the first time in the course of evidence by the claimant’s witnesses; that in the circumstances, the said documents are inadmissible and ought to be expunged from the records of this Court as rejected. See Adugbo v. Ibe (2018) LPELR- 46138 (CA) 1 at 23.
14. The defendants continued that aside Exhibit CW4/1, all the other documentary exhibits, i.e. Exhibits CW17, CW18, CW19, CW20, CW33, CW35, CW37, CW38, CW43, CW44, CW45 and CW49 are public documents within the meaning of section 102 of the Evidence Act, 2011. That except for Exhibit CW17, the claimant tendered these public documents without same being certified in accordance with section 104 and 105 of the Evidence Act; that clearly, the said documents, i.e. Exhibits CW18, CW19, CW20, CW33, CW35, CW37, CW38, CW43, CW44, CW45 and CW49 are inadmissible pursuant to sections 89 (e) and 90 (1) (c) of the Evidence Act, 2011. See Oba Aruna Okiki II & ors v. Nosiru Jagun & ors (2000) 5 NWLR (Pt. 665) 19; Aina v. Jinadu (1992) 4 NWLR (Pt.233) 91. That Exhibit CW43 was generated from the internet by the claimant; that Exhibit CW43 failed to comply with the requirements of law in that it was not accompanied by the statutory certificate as required under section 84 of the Evidence Act, 2011. See Kubor v. Dickson (2012) LPELR- 9817 (SC).
15. The defendants went on that the claimant cannot even rely on the provisions of section 12 (2) (b) of the NIC Act 2006 and Order 5 Rule 6 (2) of the NICN Rules 2017 to save the said documents; that the position of the law as enunciated in those statutory provisions is that this Court is bound by the provisions of the Evidence Act and can only depart from it in the interest of justice. That the claimant was aware that the said documents are public documents and would require certification to be admissible; that there is no evidence that he took he took any steps to obtain certified copies of the said documents nor did he issue a notice to the defendants to produce certified copies of the said documents, such as to entitle him to invoke the equitable provisions of section 12 (2) (b) of the NIC Act, 2006 and Order 5 Rule 6 (2) (e) of the NICN Rules 2017.
16. The defendants added that the authenticity of the said documents are seriously in doubt hence they were not obtained from the records of the Polytechnic as statutorily kept by the 3rd defendant who should be in custody of same. See section 156 of the Evidence Act, 2011. That, for a quick example, Exhibit CW44 Purports to be the pay-slip of the claimant for November 2015 and was printed on 8/12/2015; that this document expressly states that the claimant’s department is Business Studies whereas, the claimant’s department is Marketing as admitted in paragraph 1 of his Amended Statement of Claim. The defendants therefore prayed this Court to reject the said documents and expunge them from the records of the Court.
17. For Exhibits CW35 and CW37, the defendants argued that Exhibit CW35 are (sic) the purported invitations issued to the claimant to appear before the Senior Staff Disciplinary Committee dated 13/11/2015 and 25/11/2015; that a clear look at these documents will reveal that the dates on which the claimant was purportedly expected to appear before the said Committee was typed with a different font character and font size from that used in typing the other contents of the document indicative of alteration and forgery. That Exhibit CW37 is the purported copy of Course Allocation for 2012/2013 session (REG/CEP). That the title of the said document showing the session for which it was purportedly made was clearly mutilated; that the said documents are worthless and not deserving of any evidential value. The defendants prayed the Court to discountenance them. See Uzu v. Ogbu (2012) LPELR-9775 (CA).
18. On issue (3), whether the entire evidence of CW4, Happiness Ekweme ought to be expunge from the records of this Court, the defendants submitted that Order 3 Rule 9 (b) & (c) of the NICN Rules 2017 provides that a Complaint shall be accompanied by a list of witnesses and a written statement on oath of all witnesses listed to be called by the claimant; that in the instant case, the list of witnesses filed by the claimant does not contain the name of Happiness Ekwueme; that no subpoena or other order of Court was issued on the said Happiness Ekwueme to testify during the course of proceedings despite the objections of the defendants to such procedure. That the entire testimony of the said Happiness Ekwueme, not having been predicated on any written statement on oath or subpoena or other order of Court is liable to be expunged from the records of this Court.
19. In arguing issues (4), (5) and (6) together, the defendants submitted that the parties in this case are ad idem on the facts that the claimant’s conditions of service with the Federal Polytechnic Oko is regulated by the Federal Polytechnics Act, the Public Service Rules 2008 the Revised Scheme of Service and the Federal Polytechnic Manual. See paragraphs 2, 3, 4, 40 and 59 of the Amended Statement of Claim, paragraphs 8 and 12 of the Amended Statement of Defence, and paragraphs 7 and 25 of the Reply to Amended Statement of Defence.
20. That section 17 of the Federal Polytechnics Act makes provisions for the disciplinary procedure applicable to the claimant as follows:
17 (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 directions of the Council.
21. That from the provisions of section 17 (1) (a) and (b) of the Federal Polytechnic Act as reproduced above, it is clear that disciplinary proceedings against then claimant concerning any allegation of misconduct must be commenced by a query giving him notice of the allegation against him and affording him an opportunity to make representations in his defence. That similar provisions are also contained in Rule 030302 of the Public Service Rules which are also in line with the constitutional right to fair hearing as enriched in section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). See also British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 276 at 290.
22. Furthermore, that in the instant case, the claimant complains that the queries dated 23/12/2010, 17/9/2015 and 23/10/2015 as issued to him are malicious, illegal and unlawful while praying that they be declared as null and void; that this contention t s submitted, is misconceived and defendants prayed this Court to reject same. That the said queries were in no way malicious; the query of 23/12/2010 was predicated on the allegations against the claimant as contained in the SERVICOM Report of 18/8/2010, i.e. Exhibit DW1; that the query of 17/9/2015 was also predicated on the allegations against the claimant as contained in the SERVICOM Report of 22/6/2015 i.e. Exhibit DW2 and DW2/5. That the reminder query of 23/10/2015 was issued to the claimant just to remind him to reply to the ealier query of 17/9/2015; that since the said queries are merely administrative procedures aimed at notifying the claimant of the allegations received against him and affording him an opportunity to answer thereto, it will be absurd for same to be declared as illegal, unlawful, null and void since that will run contrary to the claimants Conditions of Service and will also amount to a deprivation of the claimant’s constitutional right to fair hearing.
23. Regarding the issue of promotion the defendant cited Nwoye v. FAAN (2019) LPELR-46402 (SC) 1 at 18 in arguing that the Revised Scheme of Service, i.e. Exhibit DW (sic) makes provisions on promotions for the instructor cadre in the Polytechnic; that the parties are agreed that the claimant is a Senior Instructor at the Polytechnic. See paragraph 16 (c) of the Amended Statement of Defence, Exhibit CW50 and DW2/27. That by virtue of paragraph 3.3.2 and 3.3.3 of the Revised Scheme of Service, a Senior Instructor may be promoted to the next position, i.e. Principal Instructor II, if he is a “suitable Senior Instructor with a minimum of three years satisfactory service record on the grade and has evidence of at least one practical project.” That paragraph 4.1.0 and 4.1.1 also provides that eligibility for promotion from the Instructor Cadre to Lecturer Cadre is subject to possession of appropriate cognate experience, possession of suitable University degree, availability of vacancy and also possession of satisfactory service records; that claimant did not provide any evidence to show that he was qualified for consideration for any such promotion.
24. That it is absurd that claimant is seeking that his original service file which forms part of the official/public records of the Polytechnic be handed over to him; that the claimant has no right to be given his original service file; that at best, claimant can only apply for certified copies of documents in the said file, pursuant to section 104 (1) of the Evidence Act, 2011 and the Freedom of Information Act.
25. Issue (7) is whether the claimant has proved that the defendants unlawfully interfered with his employment as to be entitled to general and exemplary damages against the defendants. The defendants averred in paragraph 39 of the Amended Statement of Defence that the claimant was recalled from dismissal following several representations by ASUP and further tendered Exhibit DW2/37 in proof thereof, that the claimant himself testifying as CW1, admitted this fact under cross-examination on 21/11/2018; that going by claimant’s admission, there is no live issue between the parties as to the illegality or otherwise of the claimant’s dismissal or as to his monthly remuneration, the said issue having become academic. See Ore v. Mimiko (N9.1) (2014) 1 NWLR (Pt. 1388)232 at 254. See also Oladipo v. Oyelami (1989) 4 NWLR (Pt. 120) 210; Ukejianya v. Uchendu (1950) 13 WACA 45, Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR 634; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162.
26. To the defendants, assuming (though not conceded) that there is still a live issue between the parties as to the illegality on otherwise of the claimant’s dismissal, it is the defendants’ submission that the said dismissal was not illegal but complied with the claimant’s conditions of service. See section 17 of the Federal Polytechnic Act.
27. That in the instant case, the claimant in paragraphs 29 and 37 of his Amended Statement of Claim admitted that he was issued with a query dated 17th September 2015 over allegations of illegally setting exams on ‘Principles of Selling’ for ND II Students of the Department of Business Administration and marketing, and extorting various sums of money from the said students; that claimant also tendered this query as Exhibits CW27 and CW39. That in paragraphs 37 and 44 of the same Amended Statement of Claim, the claimant admitted that he replied to the said query and further tendered the said reply to the query as Exhibits CW28 and CW42; that in the said reply to the query, the claimant never denied teaching the Course ‘Principles of Selling’ to ND II Students of the Department of Business Administration and Management; he only denied the allegation that examinations he conducted were illegal since according to him, he acted in accordance with the directives of the Polytechnic’s Management. That the claimant neither pleaded nor led any evidence to prove that he ever requested that the matter be referred to a joint committee of the Governing Council and Academic Board, i.e. Disciplinary Committee for investigation; that the claimant did not also plead nor produce any evidence to show that any three members of the Governing Council made such a request concerning the matter.
28. That be that as it may, this query of 17/9/2015 was predicated on a SERVICOM Report of 22/6/2015 tendered by the defendants through DW1 on 5/11/2019 as Exhibit DW2; that the said matter DW2 (sic) further testified during re-examination on same 5/11/2019 that the matter was considered by the Disciplinary Committee, i.e. Joint Committee of the Governing Council and Academic Board. That claimant was eventually dismissed after this process; that in the circumstances, it is clear that the dismissal of the claimant complied with the statutory procedure as prescribed by section 17 of the Federal Polytechnics Act; that the claimant was subsequently recall is an act of benevolence from the Polytechnic’s management for which claimant ought to be grateful rather than drag the defendants to Court.
29. The defendants submitted further that claimant has no right to promotions; that the queries issued to him were administrative procedures aimed at notifying him of the allegations received against him and affording him the opportunity to answer thereto and as such were consistent with his conditions of service and the constitutional requirement of fair hearing. Also that section 17 of the Federal Polytechnics Act entitled the Polytechnics to suspend the claimant pending the completion of disciplinary procedures against him; that even at that, claimant in paragraph 23 of his Amended Statement of claim expressly admitted that he was recalled from suspension and paid his arrears of salary. That in the circumstances, the claimant is not entitled to any general or exemplary damages against the defendants for injured feelings and other speculative and sentimental values. See the case of New Nigeria Newspapers Limited v. Mr. Felix Atoyebi (2013) LPELR- 21489 (CA); Shena Security Co. Ltd v. Afropak (Nig) Ltd & ors (2008) 4-5 SC (Pt. II) 117; Ajolere v. Kwara State College of Technology (1986) 2 SC 374.
30. In conclusion, the defendants submitted that considering the totality of the pleadings and evidence adduced in this case, as well as the arguments herein canvassed. The case as presented by the claimant is frivolous and lacking in merit; that in the circumstances, the Court is urged to dismiss this suit with substantial costs, in the interest of justice.
THE SUBMISSIONS OF THE CLAIMANT
31. The claimant submitted two issues for determination, namely:
1) Whether the claimant has proved his case on the preponderance of evidence.
2) Whether claimant is entitled to the reliefs sought.
32. On issue (1), the claimant submitted that the carryover examination scripts of Sunday Nnolim with registration number NDIII/WKP/PAD/08/014 and those of his carryover colleagues that Ndubuisi Onuma and his clique desperately wanted to be passed in the claimant’s course written on 12/11/2011, the dramatic indefinite suspension letter dated 29/11/2011, after the carryover examination was written, the manipulated composite result in department of Public Administration tendered in Court where Sunday Nnolim and all the other authors of the examination scripts also tendered before this Court were passed after the claimant was suspended indicate that the servicom report was premeditated, misconceived, fallacious malicious and purely orchestrated and targeted to tarnish the reputation, image and staff record of the claimant; that the defendants could not tender a single petition for extortion against the claimant written by any student of NDII/NDIII (Weekend Programme) Department of Public Administration or produce any student who was compelled to buy textbook or victimized for non-purchase of textbook to testify before the Court.
33. That the law is trite that the person who asserts bear the burden of proving that which he asserts; that the defendants have the burden to prove the allegation contained in the servicom report but could not because they are the creation and imagination of Ndubuisi Onuma. See section 131 (1), (2) of the Evidence Act 2011; Oscar & anor v. Isah (2014) LPELR- 23620 (CA).
34. The claimant went on that the Anti-Corruption Unit report signed by Mrs. Nwobi and tendered by the defendants contradicted the report by Servicom Unit of the Polytechnic that the claimant compelled students of Department of Public Administration to buy textbook against Management directives; that it is contained in the Anti-Corruption report that all the students that Anti-Corruption randomly selected and interview during their investigation confessed that the claimant never compelled them or any member of their class to buy textbook. That the Court (sic) has held that where there are contradictions in the evidence of a prosecution witness, a trial judge must reject all the evidence because it is not allowed to pick or choose which evidence to believe. See Ogbu v. State (2003) FWL (Pt. 147) 1102 at 1118.
35. The claimant submitted that the Course Allocation of Marketing Department dated 25/11/2011 signed by the then HOD of the department, Mr. Umeanyika E.O. has shown that the claimant did not teach ND II Business Administration and Management any course and he could not have conducted any examination for them or extorted money from them. The Servicom report against the claimant titled A CASE OF OFFICIAL CORRUPTION AND ILLEGAL SETTING OF EXAMS which gave rise to queries, back-dated dismissal letter and subsequent invasion and falsification of claimant's bank statement was concocted by Ndubisi Otta Onuma of Servicom Unit of the Polytechnic. DW1 and DW2 during cross-examination also gave evidence that they are non-academic staff and did not know whether the claimant taught NDII Business Administration and Management or not, The witnesses did not challenge the assertion that claimant did not teach NDII Business Administration and Management and therefore could not have conducted examination for them or extorted money from them. The court has held that where evidence given by a party is unchallenged a court of law must accept and act on it unless it is palpably incredible. See Iyere vs Bendel Feeds and Flour Mill Ltd (2009) All FWLR (Pt. 453) 1217 at 1247.
36. The claimant went on that Servicom report is full of contradictions and the refusal of the defendants to tender before this Honourable Court the copies of petitions written by members of NDII Business Administration and Management who wrote the illegal examination purportedly conducted by the claimant, their exam scripts, result of the exam or produce the students of ND II Business. Administration and Management that claimant extorted money from to shed more light on it casts serious doubt on the authenticity of the Servicom report dated 22nd June 2015. The court has held that where there are material contradictions in the evidence of the prosecution witness and other witnesses who could have shed more light on these were not called, it should be discarded. See Okunaboro vs Chief Aigbe (2002) FV/LR (pt.116) 869 at 916.
37. The claimant continued that the invitation letters that claimant should appear before Senior Staff Disciplinary Committee on Wednesday 18th November 2015 by 11.30am prompt and Wednesday 2nd December 2015 by 11.30am prompt respectively and Exh.DW1/3 (the claimant's pay-slip for the month of November 2015) affirm the assertion that he worked throughout the month of November 2015 and was accordingly paid for that month along with other employees of the polytechnic on 3rd December 2015. The money was received by First Bank in claimant's current account number 2005963676, while First Guarantee Pensions Ltd and Federal Polytechnic Oko Staff Multi-Purpose Co-operative Society Ltd received their respective contributions from' claimant November 2015 salary.
38. To the claimant, the back-dated dismissal letter titled DISMISSAL FROM SERVICE ON GROUND OF GROSS MISCONDUCT and signed by the registrar. Njaka S. N. (Mrs.) was purposely prepared in a bid to deceive the court that claimant's appointment was severed before commencement of the court action on 18m November 2015 and thus "kill" claimant motion for interlocutory injunction that was pending in court. On the event that the Honourable Court does not consider this document as one made in anticipation of proceedings that should be discountenanced, I also submit that the severance of claimant's appointment did not follow due process of law according to Civil Service Rule as there was no committee report that recommended the claimant’s dismissal.
39. That the claimant submitted that between July and November 2016 after defendants were served REPLY TO STATEMENT OF DEFENCE on 30th June 2016 in which claimant's November 2015 pay-slip was front-loaded to counter defendants claim that claimant was dismissed on 5th November 2015 and his salary stopped forthwith, defendants joined forces with First Bank (Nig.) Ltd to assist the defendants to deceive the court and suppress justice, the bank erased the following transactions from claimant's bank statement:
a) November 2015 salary that was paid on 3rd December, 2015
b) Loan repayment for November 2015
c) Loan repayment for December 2015 In the process of this falsification, the transaction of 30-12--2015 came before that of 29-12-2015 which is grossly improper.
40. The claimant added that First Bank (Nig.) proceeded to support this fraudulent falsification of claimants bank statement with an undated letter (Exh.CW2/2) that originated from its Ekwulobia branch, purposely prepared to assist the defendants to deceive the court. It is not only that the Ekwulobia branch letter has no date, there is no identity of the maker, no authorship or initials of the staff on it. To show the level of collaboration in the falsification, the bursar of Federal Polytechnic Oko also back dated the date he received the letter. Once again, in the event that the honourable court does not consider the document as one made in anticipation of proceedings that should be discountenanced, it is trite law that an unsigned documents is a worthless piece of paper and therefore cannot confer legal right or benefit on any party or the party who seeks to rely on it. See the case of Adighije v. Nwosu (2010)12 NWLR (Pt. 1209) 419 at 418. It is also the position of the law that the effect of an unsigned and undated document is that it has no evidential value. See Udo & ors v. Esien & ors (2014) LPELR-22684 (CA).
41. That Exhibit CW2/1 (the letter of First Bank (Nig) Ltd. authored by Nnenna N. Egbo and Obinna P. Onyenali of Ogui Road Branch Enugu and endorsed on their behalf by Obinwanne Lillian and Ekwueme Happiness of Ekwulobia Branch) respectively contains the original version and authentic position of claimant's bank statement of account as at 15m April 2016. The three months that claimant defaulted in his loan repayment were January, February and March 2016 and claimant's salary that did not pass through his bank account were December 2015, to March 2016 at the time the letter was written. Ironically, however, claimant's loan repayment for November and December 2015 respectively and November 2015 salary from which the deductions were made disappeared from Exh.CW2/3 (the bank statement of claimant) after defendants joined forces with First Bank (Nig.) Ltd to deceive the court and pervert the cause of justice.
42. The claimant submitted that DW1 and DW2 are not witnesses of truth. They lied on oath when they averred that claimant's employment was severed on 5th November 2015 and that his November 2015 salary was not paid along with those of other employees of the Polytechnic. The evidence of DW1 and DW2 also contradicted one another as DW2 admitted that he is an administrator and did not witness any student that was victimized by the claimant or suffered any of the allegations raised by DW1 in his report to the rector, Professor Godwin Onu.
43. That evidence of the defendant if weighed in the scale of preponderance, the Court will agree with me that it is full of back-dated, undated and manipulated documents purposely intended to deceive the Court. If truly claimant's appointment was severed on 5th November as defendants alleged, he could not have been in possession of Exhibit DWl/3 (the original pay-slip for the month of November 2015), and Exh.CW2/1 (the letter of First Bank: (Nig.) Ltd dated April 15, 2016) would not have confirmed that claimants salary did not pass through his account from December 2015- March 2016. I submit that claimant has proved his case. All the allegations leveled against him are malicious, orchestrated by Ndubuisi Onuma and cannot be established by the defendants. My Lord, it is even shocking that the rector, Prof. Godwin Onu, should receive the report against claimant dated 22nd June, 2015 on 24m July 2015 according to the acknowledgment stamp thereon, minute it at the back to SA (Legal) on 4/7/15 (20 days before he received it) while SA (legal) acted on it' on 17/7/2015 (7 days before rector acknowledged receipt of the report). Acting on a report before the date it was received is a sign of serious conspiracy against the claimant by a venomous clique and cabal.
44. Regarding issue (2), whether claimant is entitled to the reliefs sought, the claimant submitted that he is entitled to a pronouncement of the Court that the back-dated dismissal letter of 5th November 2015 is unlawful, null and void because it did not comply with the due process of law; that it is unimaginable that the claimant should be dismissed on 5th November 2015, invited to Senior Staff disciplinary committee on 18th November and 2nd December 2015 respectively and be paid his November 2015 salary on 3rd December 2015; that there is no committee report that recommended such dismissal. See Iderima v. RSCSC (2005) 16 NWLR (Pt. 951) 378; Adeniyi v. Governing Council of Yabatech (1993) LPELR- 128 (SC).
45. The claimant submitted that he is entitled to a pronouncement of the court that the back-dated dismissal letter of 5th November, 2015 is unlawful, null and void because it did not comply with the due process of law. It is unimaginable that Claimant should be dismissed on 5th November, 2015 invited to senior staff disciplinary committee on 18th November and 2nd December, 2015 respectively and be paid his November, 2015 salary on 3rd December, 2015. There was no committee report that recommended such dismissal. In Iderima v. R.S.C.S.C. (2005) 16 NWLR (Pt. 951)378, the Supreme Court held per Onu, JSC. (P. 17, para A-E) that except in employment governed by statute wherein the procedure for employment and discipline including dismissal of an employee are clearly spelt out, any other employment outside the stature is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent therewith is null and void and of no effect. On the other hand, it is the general principle that where the contract of service is protected by statute and the removal of an employee is upon compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void. See Adeniyi v. Governing Council of Yabatech (1993) LPELR - 128 (SC).
46. The claimant further argued that the Honourable Court should declare the first report which Ndubisi Onuma hid under the cloak of Servicom and wrote against the claimant in 2010 that claimant compelled students of NDII/NDIII (Weekend Programme) Department of Public Administration to purchase textbook and extorted money from them as wrongful, malicious, null and void because it was done in bad faith. Ndubuisi Onuma used the report as a platform and foundation to stock pile reports and queries in claimant's staff file and destroy his service record in preparedness to sack him for refusing his request to pass Sunday Nnolim. Also, defendants did not place any documents before the court to substantiate this frivolous claim or produce the victims of the alleged extortion to testify about it in court. A cursory glance at the examination scripts of NDII/NDIII students tendered in court by claimant will show that the students could not correctly recopy typed questions and therefore would not have even written any petition against the claimant. The malicious report that emanated from Onuma and the query that accompanied it will remain a threat to the claimant in his service record if the court does not declare them null and void.
47. To the claimant, the second provocative Servicom report where Ndubisi Onuma alleged that claimant conducted illegal examination for NDII students of Business Administration and extorted money from them cannot stand because it has no basis upon which to stand. THERE CAN BE NO BREACH OF A NON EXISTING CONTRACT. Claimant did not teach NDII Business Administration and Management and has never taught any class in Department of Business Administration and Management from NDI to HND II. Claimant could not have conducted examination for this class when it was public knowledge that the Polytechnic conducted all examinations on CBT (Computer Based Test) basis, assessed the students, published results that lecturers were compelled to sign. Moreover, defendants could not establish these allegations by producing the question paper, examination scripts of ND II Business Administration and Management, the result of the examination and the victimized and extorted students to testify in court. It was another ploy by Ndubisi Onuma, through the defendants to stockpile reports and queries in Claimant's file, destroy his service record and have him dismissed from work. The report and queries that followed it will constitute a perpetual threat to Claimant if not pronounced null and void by the court.
48. The claimant submitted that the defendants have not pointed to a reason for with-holding claimant's promotion and arrears for 2011, 2014, 2017 and 2020 respectively. It is a fact that since claimant started work in January, 2005, he has only been promoted once in 2008 during the tenure of Dr. Awodi as the rector of the Polytechnic. What the defendants lied to be claimant's promotion was migration occasioned by the change in the salary structure CONTISS to COMPCASS which moved all academic and non-academic staff of Polytechnics ahead by one level. Since Ndubisi Onuma started to witch-hunt claimant by writing frivolous reports against him and his spell came over the rector, Prof. Godwin Onu, the rector has, as a silent punitive measure, continued to withhold claimants (sic) promotions and arrears. I submit that the continued withholding of claimants (sic) promotions and arrears for many years amount to unfair labour practice, and is against the principle of natural justice, equity and good conscience. Claimant also prays the court to order the release of the promotions and arrears with immediate effect
49. That the claimant submitted that the trauma caused to the Claimant by the prolonged witch-hunting and abuse of office by Ndubisi Onuma, the arbitrary use of official power and unlawful dismissal which made the claimant to trudge in a state of hopelessness for 15 months (December 2015 to February, 2017) entitles the claimant for damages. Claimant and his family suffered protracted hardship emotionally, physically, financially and psychologically as a result of the act of the defendants which amount to unfair labour practice and is against the principle of natural justice, equity and good conscience.
50. In conclusion, the claimant submitted that he has proved his case and has shown from all evidence that he has suffered damages arising from the actions and inactions of the defendants and is entitled to all the reliefs sought.
DEFENDANTS REPLY ON POINTS OF LAW
51. Firstly, the defendants contended that in paragraphs 2.1 and 2.4 of his final written address, the claimant citing section 131 (1) & (2) of the Evidence Act 2011 and the cases of Oscar & anor v. Isah (2014) LPELR-23620 (CA); Okunaboro v. Chief Aigbe (2002) FWLR (pt. 116) 869 at 916 argued that the defendants failed to tender any petition for extortion against the claimant written by any student of NDII/NDIII Weekend Programme of the Department of Public Administration and did not produce any of the students who were compelled to buy textbooks or who were victimized for non-purchase of textbooks to come and testify before this Honourable Court and that by implication, the defendants have failed to prove the allegation contained in the Servicom Report. This argument is misconceived and we pray this Honourable Court to discountenance same.
52. . The defendants submitted that the issue before this Honourable Court is not as to whether the contents of the SERVICOM Report are true in fact but as to whether the defendants were right when they issued queries on the claimant after receiving the reports against him. Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 17 of the Federal Polytechnics Act, Rule 030302 of the Public Service Rules and the decision in British Airways v. Makanjuola (1993) 8 NWLR (pt. 311) 276 art 290 all support the actions of the defendants in issuing queries on the claimant so as to afford him an opportunity to defend himself of the accusations leveled against him in the reports received by the defendants.
53. To the defendants, claimant submitted in paragraph 2.2 of his final written address, the claimant citing the case of Ogbu v. State (2003) FWLR (pt. 147) 1102 at 1118 argued that the report of the Anti-Corruption Unit (ACTU) tendered in evidence by the defendants contradicted the report of the SERVICOM Unit and as such both must be rejected by this Honourable Court. This argument is misconceived and we pray this Honourable Court to discountenance same. The accusations made against the claimant at the SERVICOM Unit are different from that made to the Anti-Corruption Unit against the same claimant. Exhibit DW1 is the SERVICOM Report dated 18/8/2010 which clearly stated that the accusation made against the claimant by students of the Department of Public Administration was about illegal sales of textbooks, sorting and extortion of money from students. Claimant was eventually queried and suspended because of this matter even though he was later recalled and his arrears of salaries paid to him. Exhibit DW2/5 is the ACTU Report dated 25/2/2015 and clearly stated that the accusation made against the claimant by students of Marketing Department was that he was forcing students to buy his textbook. The Polytechnic Management was yet to take any action on this Report before they received Exhibit DW2 which is the SERVICOM Unit Report dated 22/6/2015 accusing the same claimant of setting illegal exams for students and extorting money from them for the said exams. Claimant was queried and eventually dismissed on the basis of Exhibit DW2 though he was later recalled to service. Thus, the three investigation reports against the claimant were on entirely different accusations and the said documents do not in any way contradict each other.
54. The defendants went on that in paragraph 2.5 of his final written address, the claimant relied on Exhibit DWI/3 (i.e. Pay-slip) to assert that he was paid his November salary on 3/12/2015. We most respectfully bring to the attention of this Honourable Court that the said Exhibit DW1/3 is the same as Exhibit CW44 as both purport to be the claimant's pay-slip for November 2015 printed on 8/12/2015. In paragraph 4.10 at page 13 of the defendants' final written address, we did argue that the contents of the said pay-slip which states that the claimant's department is Business Studies contradicts paragraph 1 of the claimant's Amended Statement of Claim wherein the claimant admitted that his department is Marketing. This casts serious doubts as to the authenticity of the said pay-slip and in view of the fact that it also contradicts the claimant's statements of account tendered before this Honourable Court as Exhibits CW2/3, CW2/5 and CW5/3, we pray this Honourable Court to discountenance the said pay-slip.
55. That in paragraph 2.6 of his Final Written Address, the claimant made a heavy weather on the issue of falsification of his Statements of Account. Sadly, this suit was instituted against the defendants and not First Bank of Nigeria Plc. The defendants are not officials of the said bank and have no business or interest in the bank's record of the claimant's account.
56. It is further contended by the defendants that in paragraph 2.7 of the claimant’s Final Written Address, the claimant complained that Exhibit CW2/2 had no identifiable author and is unreliable. This argument is most misconceived and we pray this Honourable Court to reject same. Aside the fact that the said letter was signed by the Business Manager of First Bank of Nigeria Plc (Ekwulobia Branch), the claimant called CW2 to testify and she admitted under cross-examination that she signed the said letter and that she was the Business Manager at Ekwulobia Branch of First Bank of Nigeria Plc at the time the said letter was written.
57. On the claimant’s Exhibit DW2/41 which the claimant tendered during the cross-examination of.DW2 is inadmissible in evidence. The said document is a public document but the claimant tendered only a photocopy of it contrary to the requirements of Section 89 (e) & 90 (l) (c) of the Evidence Act, 2011. The claimant cannot even rely on the provisions of Section 12 (2) (b) of the National Industrial Court of Nigeria Act, 2006 & Order 5 Rule 6 (2) (e) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to save the said document. The position of the law as enunciated in those statutory provisions is that this Honourable Court is bound by the provisions of the Evidence Act and can only depart from it in the interests of justice. The claimant was aware that the said document is a public document and would require certification to be admissible. There is no evidence that he took any steps to obtain a certified copy of the said document nor did he issue a notice to the defendants to produce a certified copy thereof, such as to entitle him to invoke the equitable provisions of Section 12 (2) (b) of the National Industrial Court of Nigeria Act, 2006 & Order 5 Rule 6 (2) (e) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The authenticity of the said document is also doubtful as it did not emanate from the records of the Polytechnic as statutorily kept by the 3rd defendant who should be in custody of same. See Section 156 of the Evidence Act, 2011.
58. In the light of the arguments herein canvassed, as well 'as the totality of the pleadings and evidence presented in this case as well as our Final Written Address, we submit that the case as presented by the claimant is frivolous and lacking in merits. We therefore pray this Honourable Court to dismiss this suit with substantial costs, in the interest of justice.
59. I have carefully considered the processes filed and the submissions of the parties. The fact of the claimant’s employment with the Federal Polytechnic Oko and the fact of his summary dismissal on ground of gross misconduct by the defendants are not in doubt. The fact that the claimant’s employment is regulated by the Public Service Rules (PSR) 2008 Edition and Revised Schemes of Service for NBTE, Polytechnics and other similar tertiary institutions is also not in doubt. From the reliefs of the claimant, his case is one contesting his query, suspension, stunted promotion and dismissal by the defendants. The claimant accordingly prays inter alia, that the queries issued to him be set aside, the defendants be restrained from suspending or dismissing him, his promotions be released to him. He also prays for general and exemplary damages for the financial and economic hardship, physical, mental and psychological agony, public odium, derision and obloguy (sic) that he suffered from the withholding of his 2011 promotion, suspension and query.
60. The defendants called to question the admissibility of Exhibits CW17, CW18, CW19, CW20, CW33, CW35, CW37, CW38, CW43, CW44, CW45 and CW49 on grounds of non-certification of the said public documents in accordance with sections 84, 89 (e), 90 (1) (c), 104 and 105 of the Evidence Act, 2011. To the defendants, the claimant cannot even rely on the provisions of section 12 (2) (b) of the NIC Act, 2006 and Order 5 Rule 6 (2) (e) of the NICN Rules, 2017 to save the documents. The defendants therefore prayed this Court to reject the said documents and expunge them from the records of this Court. The defendants are not arguing that they do not exist. Only that they are not certified or certificated. This Court is not unaware of SEC V. Abilo Uboboso unreported Suit No. CA/A/388/2013, the judgment of which was delivered on 21st December 2016, a case in dealing with the issue of admissibility of public documents held that section 12 (2) of the NIC Act cannot operate to counter the provisions of the Evidence Act 2011 which is a later Act to the NIC Act 2006. See Mr. Sunday Nwokeukwu v. Stanbic IBTC Bank Plc unreported Suit No. NICN/ABJ/71/2018, the judgment of which was delivered on November 19, 2019. SEC V. Abilo Uboboso is however, distinguishable on a number of grounds chief amongst which is section 4 (2) (b) of the Interpretation Act Cap 123 LFN 2004, to the effect that where an enactment is repealed and another enactment is substituted for it, any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. This provision was not brought to the attention of the Court of Appeal in SEC v. Abilo Uboboso. Also not pointed out to the Court of Appeal is the fact that section 12 (2) of the NIC Act is not delimited by time or date; it uses the phrase “Evidence Act”, not “Evidence Act 1990 or 2004”. In any event, section 3 of the Evidence Act, 2011 provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.” A fortiori, if another Legislation makes any evidence inadmissible, the intention of the legislation in that regard must be read to mean that nothing in this Act shall prejudice the admissibility or otherwise i.e. inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria. The NIC Act 2006 is an Act validly in force in Nigeria. Section 12 is thus a provision validly in force. I do not accordingly see merit in the defendants’ objection to Exhibits CW17, CW18, CW19, CW20, CW33, CW35, CW37, CW38, CW43, CW44, CW45 and CW49. By PDP & anor v. Jidou L. Sebastine & anor (2015) LPELR-42410 (CA) relying on Tangale Traditional Council v. Fawu (2002) FWLR (Pt. 117) 1137 at 1164 paragraph G-E and Ogun v. Asemoh (2002) FWLR (Pt. 128) 1328 at 1341, the only issue left is the weight to be attached to each of them. I so hold.
61. Regarding whether the entire evidence of CW4, Happiness Ekwueme ought to be expunged from the records of this Court, the defendants, citing Order 3 Rule 9 (b) and (c) of NICN Rules 2017, submitted that in the instant case, the list of witnesses filed by the claimant does not contain the name of Happiness Ekwueme; that no written statement on oath was filed for the said Happiness Ekwueme; that no subpoena or other order of Court was issued on the said Happiness Ekwueme to testify in this suit; that yet the claimant brought the said witness and made her testify during the course of proceedings despite the objections of the defendants to such procedure; and that for all the reasons given, the CW4’s testimony is liable to be expunged from the records of this Court.
62. The law is established that whether documents are fake or inadmissible, these are not issues that can be resolved vide affidavit evidence before the Court. Section 138 (1) of the Evidence Act 2011 specifically states that- “if the commission of crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt.” Oral evidence is however, necessary. See IPBC Nigeria Limited & ors v. IBPC UK Limited (2014) LPELR- 23086 (CA). See also Top Services Limited v. Artee Industries Limited 2014 LPELR- 23268 (CA), Anyanwu & ors v. Uzowuaka & ors (2009) LPELR- 515 (SC) at pages 24-25 and Ebem & anor v. Nyesen (2016) LPELR- 40122 (CA). In my considered view, Exhibit CW4/1 is the hanger on which the oral evidence of CW4 is expected to hang for the assessment or evaluation of the claimant’s submissions on the issue of forgery in question. I so hold.
63. Since by the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig) Ltd (2008) LPELR-591 (SC); (2008) 10 NWLR (Pt. 1095) 399; (2008) 5-6 SC (Pt. II) 47 “a claim is circumscribed by the reliefs claimed”, the claimant’s case must be circumscribed by the reliefs he claims…
64. I shall take reliefs (i), (ii) and (v) together since they deal with the same issue. In relief (i), the claimant seeks the Court declaration that the query dated 23rd December 2010 issued to him by the defendant and upon which he was suspended is malicious, without justification whatsoever and therefore null and void.
65. By a query memo Ref No. FPO/RG/170/V.IV/109 dated December 23, 2010 from Registrar and signed by the Registrar (Exhibit CW2), the defendants queried the claimant in the following words:
I am directed to request you to respond to the following allegations against you by NDII Weekend Programme Students of Public Administration whom you lecture on the Principles of Marketing:
1. That, in contravention of Managements directive against sales of books and handouts to students, you sell your ‘textbook’ at ₦1,000 (One Thousand Naira, Only) each to your students.
2. That even after collecting money from students, you still do not supply the books in question.
3. That you compel your students to ‘sort’ you for a fee of ₦3,000 (Three Thousand Naira, Only) each on pain of failing your course.
You have seven-two (sic) (72) hours to submit any representations why disciplinary action, which might include suspension from duty/termination of appointment, should not be taken against you.
You are further requested to acknowledge receipt of this memo on the second copy. Note that refusal to so acknowledge receipt is gross misconduct which carries severe penalties.
66. By another query memo Ref. No. FPO/P/55/Vol.VII/17 dated 17th September 2015 from PAR(P) and signed by A.O. Anukan for Registrar (Exhibit CW27), the defendant queried the claimant in the following words:
A report reaching Management alleged that you conducted an illegal carry-over examinations on Principles of Selling for NDII Students of Business Administration and Management.
You further extorted money ranging from Three to Seven Thousand Naira (₦3,000.00- ₦7,000.00) from same students in the course of administering the illegal examinations.
Evidences (sic) from your past records strongly buttressed the allegations that you have been in the habit of extorting money from students any how without any regards to the extant Public Service Rules (PRS).
Against this backdrop, Management had directed that you be asked to give reasons for your negative actions, and why severe disciplinary action should not be taken against you for gross misconduct.
You are therefore given 72 hours from the date of this letter to react to the allegations preferred against you, and explain why you should not be punished in line with the extant rules.
Be guided accordingly.
67. By a further query memo Ref. No FPO/RG/170/Vol. IX/222 dated 23rd October 2015 from Registrar and signed by the Registrar (Exhibit CW29), the defendants queried the claimant in the following words:
The above subject Ref. No. FPO/P/55/Vol. VII/117 of 17th September 2015 refers.
Management has observed with dismay that uptil date, you have not made any representations on the subject. Your non-response to the query under reference amounts to suggest that you do not come to work.
You are once again given the opportunity to make defences on the illegal setting of examinations and extortion of money from students preferred against you.
You are given 48 hours effective from the date of this letter to show cause why disciplinary action should not be taken against you for corrupt practices
Be guided accordingly.
68. The claimant as CW explained when shown Exhibits CW27 and CW39 under cross-examination that Exhibit CW27 was his copy of the query memo Ref. No. FPO/P/55/Vol. VII/117 dated 17th September 2015; whereas Exhibit CW39 is the file copy of the same query which the defendants tendered/filed on which something is minuted on it by the Registrar dated 22/09/2015; that he understood the contents of the query very well.
69. What is the meaning or definition of “query”? The Webster’s Dictionary of English Language, Dulux Edition, by J.G. Ferguson p.794, defines the word “query” in these words: “To inquire into, to ask about, to ask questions of, to interrogate, to express doubt concerning the correctness or truth of, to have or express doubts…” When an officer is about to be disciplined by his employer, it is normal or usual to ask such officer to explain certain things before any decision is taken. This procedure or process is often referred to as query. In AG Kwara State v. Ajibola (2009) 7 NWLR Pt. 1139 p. 199 at 212, the Court of Appeal per Bdliya, JCA held at page 21 that “an officer about to be disciplined is first given a query to explain certain things in writing. It is a query that precedes the setting in motion the procedure for disciplinary action. See also Iderima v. Rivers State CSC (2005) 16 NWLR Pt. 951 p 378. See further Miaphen v. University of Jos Consultancy Limited (2013) LPELR- 21904 (CA).
70. On the charge of selling books and handouts to students without supplying the said books to the students and compelling students to “sort” the claimant for a fee of ₦3,000.00 (Three Thousand Naira) on pain of failing claimant’s course, the claimant denied all the allegations and insisted that he adhered strictly to the marking scheme; that the allegations were neither established nor alleged prior to the examination; but was issued after the result of the examination was released and it was found that the sacred and special students failed the examination. See paragraphs 6, 7, 8 and 9 of claimant’s amended statement of facts.
71. In reaction, the defendants stated in paragraphs 3, 4 and 5 of their amended statement of defence that the SERVICOM Report proved the allegations in the claimant’s petition to be false; and seriously indicted the claimant for corruption, official recklessness and abuse of office in that claimant was habitually involved in direct sale of books and handouts to students, refusal to supply the said books despite receiving payment for same from the students and “sorting” clearly against the directives of the Management of the Federal Polytechnic Oko; that similar complaint was made against the claimant in February 2015 and was investigated by the Anti-Corruption and Transparency Unit (ACTU) whose report indicted the claimant. The defendants cited Exhibits DW1, DW2, DW2/4 and DW2/5.
72. The Civil/Public Service Rules confer on public servants a legal status that goes beyond that of ordinary master and servant relationship. What this means is that a public servant cannot be removed/disciplined without strictly complying with the Civil/Public Service Rules. Okocha v. CSC Edo State (2004) 3 NWLR pt. 861 page 494. Thus, a public officer can be dismissed only if the following procedure is followed. (a) the officer shall be notified in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing, before a day to be specified which day must allow a reasonable interval for the purpose, and ground upon which he relies to exculpate himself; (b) the matter shall be investigated by the appropriate authority with the aid of the head of the officers department, and such other officer or officers as the appropriate authority… may appoint; (c) if any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses; (d) no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto; (e) if the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him, and (f) if the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. See NIMASA v. Odey (2013) LPELR-21402 (CA); Iderima v. RSCSC (2002) 1 NWLR (Pt. 749) 715.
73. Where a public or civil servant is removed from office, what the law Courts would enquire is whether the process of removing such an officer was done according to the provisions of the law. Once it is established that the dismissal, retirement or termination of a public officer is in accordance with the provisions of the Public Officers Protection Act/Law, a trial Court is divested of jurisdiction to enquire into such dismissal, retirement or termination. In the case of the claimant in this suit, was the claimant notified of his misconduct, etc. by way of a query and allowed to answer the query; and he answered it before a decision was taken against him? YES; and I so find. See Imonikhe v. Unity Bank Plc (2011) LPELR- 1503 (SC). In the circumstance, I hold that claimant’s reliefs (i), (ii) and (v) lack merit and are accordingly dismissed.
74. In relief (iii), the claimant prays the Court’s declaration that the statement “Evidences from your past records strongly buttresses the allegations that you have been in the habit of extorting money from students anyhow without any regards to the extant Public Service Rules (PSR)” as contained on the 3rd and 4th defendants’ query dated 17th September 2015 is a judgment against the claimant without fair hearing, illegal, unlawful and therefore null and void. By Imonikhe v. Unity Bank Plc (supra), the law is established that where a public officer is notified of his misconduct by way of a query; and thereafter a decision is taken against him, fair hearing has been appropriately considered in the process. The duty on the claimant in this suit is to address the issue(s) of the defendants’ query dated 17th September 2015 for consideration by the appropriate authority, and not to the Court. I so hold.
75. In their legal arguments, the defendants raised the issue whether this suit is properly constituted in terms of the parties sued as defendants in the suit. To the defendants, since the contract of employment was between the claimant and the Polytechnic, and all the defendants are merely agents of the said Polytechnic; and the Polytechnic ought to have been joined as a defendant to this suit as being responsible for the acts or omissions of her agents; and that the claimant did not make any complaint or allegation against the 4th defendant. See section 1 of the Federal Polytechnics Act, Khonam v. John (supra); Ibrahim v. Musa (supra); Osigwe v. PSPLS Management Consortium Ltd & ors (supra); Order 13 Rule 4 of NICN Rules 2017 and Ayorinde & ors v. Oni & ors (supra).
76. In labour relations, the definition of an employer has expansive meaning as to include officers of the employer himself. For instance, section 91 (1) of the Labour Act Cap L1 LFN 2004 defines the “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer.” Of course, by section 18 (1) of the Interpretation Act, 2004, “person” includes anybody of persons corporate or unincorporated. Since the definition of an employer includes the agent, manager or factor of an employer, the defendants in the instant suit are all juristic persons properly sued in this case; and I so hold. The argument of the defendants goes to no issue and so is hereby discountenanced. See Ogunbayo Oluwole Michael v. Fidelity Bank Plc and MD Fidelity Bank Plc unreported Suit No. NICN/LA/350/2013, the judgment of which was delivered on December 13, 2017 and Order 13 Rule 4 of NICN Rules 2017.
77. The claimant in relief (iv) seeks the Court’s declaration that the continued seizure and withholding of his 2011 promotion and the associated benefits upon several requests for the release and payment is illegal, wrongful, unlawful and a deprivation of the claimant’s right to the enjoyment if (sic) promotion and associated benefits. That following his recall from indefinite suspension on 22nd May 2012, he requested for the release of his 2011 promotion which was withheld as a result of the suspension; that he made several demands/reminders to the defendants to no avail. See Exhibits CW13, CW14, CW15 and CW16. That notwithstanding the receipt of the above letters and applications, defendants remained adamant and persistently continued withholding the 2011 promotion and the accrued benefit for the reasons best known to them and just to punish the claimant. See paragraph 24 of the claimant’s amended statement of claim.
78. To the defendants, by paragraph 16 (a) (b) and (c) of their amended statement of defence, promotion is not a right but is rather a privilege granted to qualified and deserving staff with meritorious service records after compliance with due process requirement for same; that claimant had no such meritorious service records. That defendants have never withheld the promotions of the claimant or that of any other staff of the Polytechnic whatever; that upon receipt of the various letters from the claimant for the release of his promotion, requisite administrative actions were taken on same and eventually, by a letter dated 28th August 2014, claimant was notified of his placement as Senior Instructor on CONTEDISS 8 and CONPCASS 3 with effect from 1st January 2009. See Exhibit DW2/27.
79. Abenga v. Benue Judicial Service Commission (2006) 14 NWLR (pt. 1000) 610 held that promotion of an employee is neither automatic nor as of right as such the Court will not grant such a relief. What this signifies is that promotion is a priveledge, not a right. See The Shell Petroleum Development & 5 ors v. E.N. Nwawka & anor (2001) 10 NWLR pt. 720 64 at 84, Abenga v. Benue State Judicial Service Commission (supra) and Mr. Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency unreported Suit No. NICN/LA/303/2014, the judgment of which was delivered on July 10, 2017. However, in Mrs. Abdulrahman Yotunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor (2013) 35 NWLR (pt. 103) 40 NIC, this Court reviewed the authorities and held that while promotion is neither automatic nor as of right, once an employee can show an entitlement to promotion and that the denial of the promotion by the employer was vindictive and/or mala fide, then the rule in The Shell Petroleum Development & 5 ors v. E.N. Nwawka & anor against a Court interfering in the internal administration of employers would get a verdict in that regard especially on the ground of unfair labour practice, something over which this Court now has jurisdiction under section 254 (1) of the 1999 Constitution. Other than the mere submission of requests for the release of claimant’s 2011 promotion vide Exhibits CW13, CW14, CW15 and CW16, there is nothing to show that claimant’s promotion was due and same was deliberately withheld as a result of claimant’s suspension. So this Court cannot ascertain whether the claimant would have been qualified and so entitled to any promotion had he remained in actual employment of the defendants. Relief (iv) is accordingly not proved and is not grantable. I so hold.
80. By non-proof and grant of relief (iv), reliefs (vi), (vii), (viii), (x), (xi), (xiii) and (xiv) consequently fail. In the circumstance, reliefs (vi), (vii), (viii), (x), (xi), (xiii) and (xiv) are accordingly dismissed.
81. The claimant’s relief (ix) praying for an order of Court directing the defendants to produce the claimant’s original staff file and all documents therein which has been in the custody of the defendants since the year 2015 does not rest on any declaratory relief which must be first sought for and obtained. In Awoniyi & ors v. The Registered Trustees of The Rosicrucian Order, AMORC (Nigeria) (2000) LPELR - 655 (SC), the Apex Court held, per Iguh, JSC thus:
The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give a party an entitlement to a relief he has not established in his favour. See Akinbobola v. Plisson Fisko Nigeria Ltd & ors (1991) NWLR (pt. 167) 270 at 288; Obayagbona v. Obazee (1972) 5 SC 247; Liman v. Alhaji Mohammed (1999) 9 NWLR (pt. 617) 116, etc.
82. It is plain that this Court has not declared any rights in the claimant over original staff file and all documents therein capable of enforcement. No mandatory or executory order was made by this Court in favour of the claimant on the original staff file and all documents. Relief (ix), not standing on any foundation, must fall. Same is dismissed.
83. The claimant in relief (xii) seeks an order of Court to declare that the backdated, purported illegal, concocted dismissal letter is null and void and of no effect. In paragraphs 57, 58, 59 and 60 of the claimant’s amended statement of claim, he stated that the purported dismissal letter dated 5th November, 2015 was brought to his attention while in Court; that the said dismissal letter was backdated and served for the purpose of this suit. That assuming though not conceding that the said letter was legally made, the procedure for such dismissal was not followed as provided in the Civil Service Rules; that the Disciplinary Committee did not sit on this issue nor come up with any recommendation for the dismissal or suspension of the claimant therefore any purported letter to that effect is null and void.
84. In reaction, the defendants admitted paragraph 57 of the claimant’s amended statement of facts only to the extent that the claimant was dismissed from service by a letter dated 5th November, 2015; that consequently he was removed from the payroll with effect from that date; that the dismissal of the claimant complied with due process as prescribed by law. See paragraphs 36, 37 and 38 of the defendants’ amended statement of defence.
85. In reply to the defendants’ amended statement of defence, the claimant stated in paragraph 30 that he was paid November 2015 salary by the defendant vide a pay slip already filed and served in Court dated 8th December 2015- which defendants maintained was a fake. That a letter from Federal Polytechnic Multipurpose Cooperative Society Ltd Oko attested that claimant’s November 15 salary was paid and was accordingly remitted to them on 15th May 2017 and duly endorsed by the Chairman, Secretary and Treasurer respectively; that First Guarantee Pension Limited and First Bank Plc both confirmed that it was only December 2015 salary that did not pass through the claimant’s account.
86. The defendants’ letter of dismissal of claimant from service on ground of gross misconduct signed by the Registrar, Njaka, S.N. dated 5th November 2015, Exhibit DW2/1 reads thus:
Management is worried about your unethical behavior in the discharge of your official duties, which put the image of the polytechnic in bad light.
That facts before the Management revealed that you illegally conducted examination/continuous assessment on principles of selling and extorted various sums of money from NDII students of Business Administration and Management.
Consequently, Management has directed that you be informed that your services are no longer required by the Polytechnic and that you be dismissed from service.
By this letter you are hereby dismissed from the services of the Federal Polytechnic, Oko. Your dismissal is with immediate effect.
You are directed to hand over all Polytechnic property in your possession to your Head of Department.
87. In paragraph 4.24 of their final written address, the defendants submitted that the claimant neither pleaded nor led any evidence to prove that he ever requested that the matter be referred to a Joint Committee of the Governing Council and Academic Board, i.e. Disciplinary Committee for investigation; that claimant did not plead nor produce any evidence to show that any three members of the Governing Council made such a request concerning the matter. That nevertheless, DW2 testified during cross-examination on same on 5/11/2019 that the matter was considered by the Disciplinary Committee i.e. Joint Committee of the Governing Council and Academic Board; that in the circumstances, it is clear that the dismissal of the claimant complied with the statutory procedure as prescribed by section 17 of the Federal Polytechnics Act.
88. In the circumstances of the instant suit, are the defendants right in the submissions in paragraph 4.24 of their final written address referred to above? I do not think so. Section 17 (c) of the Federal Polytechnics Act states that “If the said staff, or any three members of the Governing Council so request within a month from the date of the query…” The word “or” as defined by Oxford Advanced Learners Dictionary, 7th Edition, page 1027 is “used to introduce another possibility”. That means that if the said staff does not request the Joint Committee of the Governing Council and Academic Board to investigate and report to the Governing Council, any three members of the Governing Council should so request. It is not the duty of the said staff (claimant herein) to plead or produce any evidence to show that any three members of the Governing Council made such a request concerning the matter.
89. Again, if the said DW2 further testified during re-examination on 5/11/2019 that the matter was considered by the Disciplinary Committee; i.e. The Joint Committee of the Governing Council and Academic Board, was the Report and Recommendations of the said Disciplinary Board laid before the Governing Council or tendered in Court in this suit? There is no such indication on the records. This is very important because section 17 (c) of the Federal Polytechnics Act says that the Disciplinary Committee shall “report to the Governing Council, in which event, the said ‘joint committee’ shall give the staff an opportunity to appear before them to defend himself”. Did the claimant appear before the Disciplinary Committee? I think not. Also, there is nothing on the record to indicate that the Governing Council considered the query and reply thereto… and the report of the said ‘joint committee’ as stipulated in section 17 (d) of the Federal Polytechnics Act. In the circumstances, it is my determination that section 17 of the Federal Polytechnics Act was not complied with by the defendants before the claimant was dismissed/removed. I so hold.
90. In dismissal cases, especially where an employer gives the reason for the dismissal, it is not for the employee to show that his dismissal was wrongful. It is for the employer to justify the said dismissal. The law is that once an employer gives a reason for termination or dismissing an employee, the burden lies with him to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah (2000) 13 NWLR (Pt. 685) 551 CA. In Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip (2011) LPELR- 1517 (SC), the Supreme Court held that “although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard otherwise the termination/dismissal may constitute a wrong dismissal without more”. See also George Abomeli v. Nigerian Railway Corporation (1995) 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (WA) Co Ltd. (1961) 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc (2007) All FWLR (pt. 360) 1480 SC at 1491; (2007) 1-2 SC 317. In Exhibit DW2/1 dated 5th November 2015 (the letter of dismissal), the defendants gave the reasons for dismissing the claimant as unethical behavior in the discharge of claimant’s official duties, which put the image of the Polytechnic in bad light; that facts before the Management revealed that the claimant illegally conducted examination/continuous assessment on Principles of Selling and extorted various sums of money from NDII students of Business Administration and Management. The duty is on the defendants to justify these reasons.
91. Exhibit DW1 Ref. No. FPO/SVC/R/08/30 dated August 18, 2010 on Allegation Against Onwuchekwa K is a memo from Investigator Atta Onuma of Servicom Unit to the Rector, Federal Polytechnic, Oko. The facts of the matter, findings and suggestion are submitted to the Rector for his information. On suggestion especially, Investigator Atta Onuma suggested that the school authority should authorize the school bookshop to always open on Sundays; that this will check defaulters; that secondly, Onwuchekwa should refund without delay all the monies he collected from students for unissued textbooks; that on the issue of sorting, he is found of that. He suggested that that Mr. Onwuchekwa should be disciplines accordingly and that assistant course rep- Iroegbu Hope also be reprimanded for conspiracy. That Onwuchekwa has been having series of cases with Servicom Unit (and) he has been invited to Servicom twice and all in connection with sorting and other related offences. Exhibit DW2 is a memo from Sunday Okeke, Focal Officer, SERVICOM to the Rector. It is dated 22nd June 2015 and on a case of official corruption and illegal setting of exams by the claimant. In Exhibit DW2, the action sought by the Focal Officer is that: “From the statements of students and our staff and the security man, Onwuchekwa is not far from extorting these students and considering his past record with SERVICOM, he suggested that his case be dealt with seriously according to Civil Service rules on official corruption. This will serve as deterrent to other grave differs (sic). Now, were these narratives in Exhibits DW1 and DW2 by investigators of SERVICOM the basis of the claimant’s dismissal or was section 17 of the Federal Polytechnics Act strictly complied with in claimant’s dismissal? I do not see the report of the “Joint Committee” or SSDC in all of Exhibits DW1 and DW2. Otta Onuma Ndubuisi, Desk Service Improvement Officer at the Polytechnic testified as DW. He stated under cross-examination that he is aware that the Rector referred the claimant’s case to the Disciplinary Committee. Even granted that the claimant appeared before the Polytechnics SSDC, was a report of the Committee, if any, not produced? If the SERVICOM Investigation Reports were submitted to the Provost, the outcomes of such reports at the Management and Council levels should also be presented to the Court. Such report was not tendered in Court. I find that it does not exist. I so hold.
92. On whether the claimant has proved that the defendants unlawfully interfered with his employment as to be entitled to general exemplary damages against the defendants, the defendants submitted that having issued the claimant a letter of recall from dismissal on 10th February 2017, there is no live issue between the parties as to the illegality or otherwise of the claimant’s dismissal. See Ore v. Mimiko (No.1) (2004) 1 NWLR (Pt. 1388) 232 at 254. Oladipo v. Oyelami (supra) Ukejiamja v. Uchendu (supra); Nkwocha v. Gov. of Anambra State (supra) and Ekperokun v. University of Lagos (supra). The defendants do not realize that the damages claimed by the claimant are for financial and economic hardship, physical, mental and psychological agony, public odium, derision and obliguy (sic), and not only a letter of recall.
93. The claimant was dismissed on 5th November 2015 and his cause of action took effect on 16th November 2015. As such the claimant was dismissed prior to Exhibit DW2/37 dated 10th February 2017, recalling the claimant from dismissal from service. Notwithstanding the rights of litigants to discontinue proceedings in suits they file in Court, what is certain is that this suit was a live issue well before the emergence of Exhibit DW2/37 and same could not have been contemplated as a factor in suit. One way or the other, the discretion still rests with the litigant(s). See Ubiuweubi v. CBN (2011) LPELR- 2185 (SC) and Order 61 Rule 7 of NICN Rules 2017.
94. The claimant submitted that the invitation letters sent to him by the defendants that he should appear before the SSDC on Wednesday 18th November 2015 by 11.30 am prompt and Wednesday 2nd December 2015 by 11.30 am prompt and Exhibit DW1/3 affirm the assertion that he worked throughout the month of November 2015 and was accordingly paid for that month along with other employees of the Polytechnic on 3rd December 2015; that the salary was received by First Bank in claimant’s current account number 2005963676; while First Guarantee Pensions Ltd and Federal Polytechnic Oko Staff Multi-Purpose Cooperative Society Ltd received their respective contributions from claimant’s November 2015 salary. That his dismissal letter was backdated by the Polytechnic Registrar, Njaka S.N. (Mrs) purposely to deceive the Court that claimant’s appointment was severed before the commencement of the Court action on 18th November 2015 and thus “kill” claimant’s motion for interlocutory injunction that was pending in Court. That same action did not follow due process of law according to Civil Service Rule as there was no committee report that recommended the claimant’s dismissal. In reply on points of law, the defendants urged the Court to discountenance the pay-slip tendered by the claimant- Exhibit CW44 same as Exhibit DW1/3. I take it that the defendants concede to the other submissions of the claimant in paragraph 2.5 of his final written address. I so hold.
95. By New Nig. Bank Ltd v. Obevudiri (1986) 3 NWLR (Pt. 29) 387 CA, the effective date of the dismissal of an employee must be reckoned as the date when the letter of dismissal was written; as such, the employee is entitled to all his accrued rights up to that date. The employee’s summary dismissal cannot, therefore, be made retrospective. Underwater Eng. Co Ltd v. Dubefon (1995) 6 NWLR (Pt. 400) SC proceeded to hold that an employer cannot dismiss or terminate his employee’s employment with retrospective effect. See Mr. Basiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013, the judgment of which was delivered on July 1, 2015. From these authorities, the defendants in the instant case cannot dismiss the claimant with retrospective effect as they seem to have done vide Exhibit DW2/1. This means that the dismissal of the claimant is null and void since the claimant is a statutory employee. By paragraph 4.14 of the defendants final written address, both parties are ad idem on this. I so find. The claimant is accordingly entitled to be reinstated. I so hold. Accordingly, relief (xii) to the extent that it deals with the dismissal of the claimant is grantable. I so hold.
96. On the whole, the claimant’s case succeeds in part and only in terms of the following declaration and order:
1) It is declared that the dismissal letter dated 5th November 2015 served on the claimant by the defendants is unlawful, null and void… and of no effect; and consequently the claimant be reinstated forthwith.
97. Judgment is entered accordingly. I make no order as to costs.
Hon. Justice J.I. Targema, PhD.