IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP, HON. JUSTICE R.B.HAASTRUP
DATE: MAY 27, 2021 SUIT NO. NICN/ABJ/126/2018
Mrs. Onipe Theresa Zainab…………………….C laimant
Nigerian Educational Research and Development Council…………………. Defendant
Musa Yahaya Esq., appeared for claimant
Wuraola Obiegbu, with Henrietta Ekeng and Gloria Apeh appeared for defendant.
The claimant’s complaint against defendant was filed along with other originating processes, dated and filed 2nd day of May, 2018, and the following reliefs are being sought:
a.) A declaration by the Honourable Court that the continuous suspension of employment of the claimant by the defendant since the 3rd of July, 2017 till date even after the criminal charge against her was terminated by the Federal High Court, Abuja is not in compliance with the Civil Service Rules and the defendant’s condition of service and same is ultra vires, unconstitutional, wrongful, unlawful and of no effect whatsoever.
b.) An order of the Honourable Court setting aside the indefinite suspension of the claimant’s employment by the defendant and granting the immediate reinstatement of the claimant to work with all rights, benefits, privileges, promotions and entitlement duly applicable.
c.) An order of the Honourable Court directing the defendant to pay the claimant her outstanding salary for 81 months (July 2011 to April, 2018) at the rate of N30, 548.60 per month and currently amounting to the sum of N2, 474, 436.6 (Two Million Four Hundred and Seventy Four Thousand, Four Hundred and Thirty Six Naira).
d.) An order of the Honourable Court directing the defendant to pay the claimant the sum of N30, 548.60 per month from the month of May, 2018 till judgment is delivered.
e.) The sum of N300, 000, 000.00 as general and special damages.
f.) 10% as interest on the judgment sum per annum till liquidation.
ALTERNATIVE CLAIM TO RELIEFS (B), (C) AND (D)
a.) An order of the Honourable Court directing the defendant to pay the claimant the sum of N10, 630, 912.8 being the claimant’s total pay off salary at the rate of N30, 548,60 per month from July 2011 to September 2040 (348 months) when the claimant would have retired from the defendant on attaining 35 years of service.
b.) An order of the Honourable Court directing the defendant to immediately pay the claimant all pensions and gratuities due and payable to the claimant.
c.) The sum of N300, 000, 000.00 as general and special damages.
The commencement date of trial was on 10th day of July, 2019, when claimant testified on her behalf as CW, and adopted her written statements on oath dated 02/05/2018 and 09/05/2019, with documents tendered admitted in evidence as Exhibits CWT1 – CWT13. The case of claimant was closed on 10/07/2009 at the conclusion of evidence of CW.
In response to claimant’s statement of claim, defendant filed an amended statement of defence on 8th day of October, 2019, which was deemed proper on 22nd day of November, 2019. The defendant opened her case on 2nd day of March, 2020, and two witnesses testified on behalf of defendant as DW1 (Anande Peter- Director, Human Resources Management Officer) and DW2 (Emeana Sylvester Emeka, of the Nigerian Copyright Commission). DW1 adopted his written statement on oath dated 08/10/2019, and documents tendered were admitted and marked as Exhibits DWA1 – DWA3. In the same vein, DW2 adopted his written statement on oath also dated 02/03/2020, and documents tendered were marked as Exhibits DWE1 – DWE3. The defendant was however foreclosed in accordance with Order 38 Rules 9 & 10 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the matter having being adjourned more than twice at the instance of defendant. The Court then deemed case of defendant closed on 5th day of November, 2020, and adjourned accordingly for the adoption of final written addresses, which were adopted by respective counsel on 4th day of March, 2021.
CASE OF CLAIMANT
It is the case of the claimant that before her indefinite suspension on 3rd day of July, 2011, she was a clerical officer GL.03 (HATIS 03 Step 1) with defendant, and that her employment is subjected to defendant and the Federal Civil service condition of service and the Civil Service Rules. That she served at defendant’s Area 3, Garki-Abuja Liaison office, and promoted to Clerical Officer GL.04 Step 1, on 11th February, 2011, when defendant suspended her on 3rd day of July, 2011 with her last salary pay as N30, 548.60.
The claimant averred that the defendant filed charges against her at the Federal High Court, Abuja, following information given by her former husband to one Prof. Obioma Godswill, the then Executive Secretary to defendant, that defendant’s curriculum were being produced by some persons without authorization, and that he suspected his former wife. That upon police investigation, one Tajudden Ibrahim was arrested and handed over to the Nigerian Copy Right Commission for prosecution, who later died in the course of trial and the case, was struck out amongst others, for want of diligent prosecution. The claimant averred that the defendant has not sued her on any offence alleged whatsoever, but mischievously suspended her indefinitely against the law establishing defendant; hence her reliefs as claimed against defendant in this suit.
CASE OF DEFENDANT
It is the case of defendant that a report was received in March, 2011 by its Executive Secretary from one Mr. Mohammed Jibrin, the claimant’s husband, that some persons were unlawfully reproducing the 9 year Basic Education Curriculum at Commerce Plaza, Area 1, Garki-Abuja without authorization. That one Mr. Tajudden Ibrahim (now allegedly deceased) was arrested at the scene of the crime and handed over to the Nigerian Copyright Commission for investigation and prosecution.
The defendant averred that claimant was alleged to have made herself available to the Nigerian Copyright Commission and made statement to one Mr. Emeana Sylvester Emeka of the Nigerian Copyright Commission. That the undated report of investigators was a product of a business center, and formed the basis of claimant’s indefinite suspension, as defendant never investigated the case as provided and required by the law which established defendant. That all the investigation report relates to the criminal charges filed by the Nigerian Copyright Commission, which was struck out by the Court.
SUBMISSIONS OF DEFENDANT
The defendant’s final written address is dated and filed the 30th day of November, 2020, and deemed properly filed on 4th day of March, 2021. The following are the two (2) issues formulated for determination:
i.) Whether in view of the facts and evidence before this Honourable Court, the claimant has proven her case to be entitled to the reliefs sought.
ii.) Whether the claimant claims for reinstatement and arrears of salary can be properly entertained by this Honourable Court when she has a pending criminal case before the Federal High Court.
Defendant argued the above issues jointly, and referred to the case of Central Bank of Nigeria vs. Jacob Oladele Amao & 2 Ors (2011) Vol. 201 LRCN, on the principles governing the grant of declaratory relief, and it generally includes the following:
a.) A declaration will be granted even when the relief has been rendered unnecessary by lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law.
b.) The claim to which the declaratory relief relates must be substantial; that it is the plaintiff must be entitled to the relief in the fullest meaning of the word.
c.) A declaration will only be granted where there is a breach.
d.) The plaintiff must establish a right where there is a right in relation to which the declaration can be made hence the court will not generally decide hypothetical questions.
e.) The relief claimed must be something which would not be unconstitutional or inequitable for the court to grant.
f.) The relief should also not be contrary to the accepted principles upon which the court exercises its jurisdiction.
It is the submission of defendant that claimant herein has failed to pass the test laid down to entitle her to the grant of declaratory and order reliefs sought. That from the claimant’s statement of facts and evidence before the Court, there is nothing to substantiate the claims being sought by claimant, thus rendering the suit frivolous and also lacking in merit. Defendant then relied on Section 131(1) and (2) Evidence Act in urging the Court to dismiss the claimant’s case in its entirety.
Defendant again referred the Court to Exhibits CWT1 – CWT7, and submitted that the evidence relates to family dispute, and claimant’s suspension did not arise as a result of her marital dispute with her husband; the documents are therefore irrelevant with no correlation with claimant’s suspension for the illegal reproduction of documents belonging to the defendant. And assuming that Exhibits CWT1 – CWT7 are relevant to claimant’s case, it then goes to prove that claimant is indeed culpable.
Defendant further submit that it is not in dispute that Exhibits CWT9, CWT10 and CWT11, goes to substantiate that claimant was a staff of defendant before her suspension. What is rather in dispute is the claimant’s illegal and unlawful commission and reproduction of defendant’s publications without authorization, and the claimant has not disputed this by any evidence. More so, Exhibit DWA1 (Query) tendered by DW1 was issued to claimant, and she replied vide Exhibit DWA2, which necessitated the issuance of Exhibit DWA3 (suspension letter) to claimant. Defendant continued that even Exhibit DWA2 which claimant’s counsel attempted to discredit in the course of cross examination to the effect that it was not type written, was not disputed by the claimant; the claimant has not also disputed the signature on the document or the fact that she was questioned by DW2 at the Nigerian Copyright Commission. Defendant submitted that the claimant had disputed her written confessional statement (Exhibit DWE2), but presented no evidence to show how the statement was doctored. More so, there is no provision in the Public Service Rules 2006 that provides for a specific style an officer should write or respond to a query, relying on Chapter 3, paragraph 030302 of the Public Service Rules 2009, which defendant has reproduced thus:
“As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him/her, it shall be his/her duty so to inform the officer in writing giving details of the unsatisfactory behaviour and to call upon him/her to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action….”
It is further submitted by defendant that the fact that claimant was having marital issues and financial difficulties with her husband is substantiated by claimant’s evidence in Exhibits CWT1 – CWT7, which goes to further show that claimant was indeed in a desperate financial situation which led her to commit the alleged crime. This, according to defendant is not an excuse for claimant’s action, hence the reason for her suspension. It is trite that when a disciplinary proceeding or a criminal case has been instituted or is about to be instituted against an officer, he or she shall be suspended from office without salary pending the determination of the case. In support of its argument on this, defendant relies on the case of OLUTIDE & ORS vs. HAMZAT & ORS (2016) (CA) LPELR – 26047.
Defendant’s further submission is that there is now a pending charge against the claimant at the Federal High Court, and claimant cannot be reinstated until the matter at the Federal High Court is determined on its merits. That although the claimant had presented Exhibit CWT13 before the Court to show that the initial criminal case against her was struck out, but then that criminal case was not decided on its merit, urging the Court to so hold and dismiss this suit.
Defendant submitted that the claimant had absconded for 5 years from her trial, and only applied for reinstatement when she learnt that the criminal case at the Federal High Court was struck out. That her reappearance has now made it possible for the criminal case against her to be reinstituted at the Federal High Court, which has been pleaded in paragraph 24 of defendant’s statement of defence. Defendant went on to reproduce claimant’s claims, including her Alternative claims, and submitting that claimant has not firmly established her case before the Court to be entitled to the award of damages as claimed in this suit. That the purpose of an award for damages is to compensate the plaintiff for the damage loss and injury suffered as a result of the act or inaction or negligence of the defendant; and the award of special or general damages is not made as a matter of course or on speculation or sentiment, but on sound and solid legal principles, relying on AJIGBOTOSHO vs. RCC (2018) LPELR – 44774; I.N.E.C. vs. ATUMA (2013) 11 NWLR (PT.1366) @ P. 494.
It is the submission of defendant that claimant has failed to show in her pleading or by any evidence the alleged wrong or inaction of the defendant which led to her suspension, and that she has also suffered damages. Furthermore, her alternative relief for special and general damages was neither pleaded nor proved to justify being awarded by this Court. That the claimant must prove that she is entitled to the damages claimed no matter how weak or poor the defence of the defendant. It is premised on these submissions that defendant now urges the Court to hold in its favour and dismiss the suit in its entirety, as claimant has failed woefully in law to prove her entitlement to the reliefs sought in this suit.
SUBMISSIONS OF CLAIMANT
In reply to defendant’s final written address, the claimant filed her final written address on 13th day of January, 2021, and dated 11th day of January, 2021. The claimant’s final written address was deemed properly filed on 4th day of March, 2021, and a sole issue is formulated for determination thus:
“Whether from the state of pleadings and evidence before the court, the claimant is entitled to the reliefs claimed.”
Claimant herein relied on the case of F.M.C., IDO-EKITI vs. ALABI (2012) 2 NWLR (PT.1285) 411 @ 417, submitting that the defendant in this case is an establishment of statute and claimant’s employment is also regulated by statute. That the claimant’s letter of appointment dated 11th day of July, 2005, stipulated that claimant’s employment was subject to terms and conditions laid down by the Federal Civil Service of Nigeria and the Federal Republic of Nigeria.
Claimant then reproduced Section 13 of Nigerian Educational Research and Development Council Act, and that same provides for the procedure in the discipline of a junior staff accused of inefficiency or misconduct, and that such a staff may be suspended for not more than three (3) months, after which the matter shall be referred to the Junior Staff Appointment and Promotion Committee. That the claimant was queried on acts tantamount to serious misconduct under Section 030401 and 030402 of the Public Service Rules, and that defendant by virtue of Sections 8, 12 and 13 of its Act, is vested with power to appoint, dismiss and exercise disciplinary control over its staff and also enjoys permanence with its duties, powers and functions as specified under Section 1 of the Council Act, urging the Court to so hold.
Claimant submits that by K.S.J.S.C. vs. Tolani (2019) 7 NWLR (PT.1671) 382 @ 387 ratio 9, where the procedure for employment and discipline is clearly spelt out by statute, the employer must comply strictly with provision of the statute in dismissing its employee or terminating his employment. It is the submission of claimant that at the time of her indefinite suspension, she was a junior staff of CONTISS 04 Step 1 by letter dated 11th February, 2009. That she was also a public officer in accordance with Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended); and by that, her suspension or disciplinary action could only be done in strict compliance with Section 13 of the Nigerian Research and Development Council Act which the claimant has reproduced in her address.
Claimant continued that from the evidence on oath of DW1, P.T.Anande, the claimant was only suspended to enable her attend trial and no more. The claimant then submitted that there was no wrong established by defendant against her as required by law, and defendant witnesses also failed to comply with disciplinary procedure provided for junior staff accused of misconduct or inefficiency as provided in Section 13 of defendant’s Act. The claimant relied on the case of B.L.L.S vs. Co. LTD M.V. WESTERN STAR (2019) 9 NWLR (PT.1678) 489 SC, to the effect that judgment can only be pronounced by a Court in the light of evidence presented and proved before it; just as averments in pleadings unless admitted by the opposite party, must be established by evidence. More so, there is no evidence before the Court to prove the acknowledgement of query served on claimant. She opined that by the Act establishing the defendant, it is the Executive Secretary that is legally recognized and empowered to suspend, and the suspension shall not last more than a period of three (3) months wherein he shall direct the matter forthwith to the Junior Staff Appointment and Promotion Committee to consider the case, and make recommendations as to the appropriate actions to be taken. This procedure is what the law requires which the defendant failed to comply with.
It is trite law that where a disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with them or any of them as required, before such disciplinary action can be properly justified. See UNITED BANK OF NIGERIA vs. OGBOH (1995) 2 NWLR (PT.380) 647 @669; K.S.J.S.C. vs. TOLANI (SUPRA).
According to claimant, she was suspended indefinitely against the mandatory stipulation of the Act regulating and governing her contract of employment with defendant, which renders the entire disciplinary measure, particularly the indefinite suspension a nullity. It is trite law that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation or in this case to refer the allegation to a committee established for such purpose, citing RAJI vs. UNILORIN (2012) 2 NILR P. 101 @ 106 ratio 4. It is also elementary principle of law that statutory disciplinary power cannot be delegated even though it was a committee created by the Act, the Council of the defendant could not delegate its powers of discipline to it. See BAMBGOYE vs. UNILORIN (1999) 10 NWLR (PT.622) 290; IDERIMA vs. RIVERS STATE C.S.C (2005) 16 NWLR (PT.951) 378.
It is the submission of claimant that Exhibit DWA1 (Query) was based on the investigation report of the Nigerian Copyright Commission, (sister agency) with delegated powers by the defendant, and not as required by the governing or Council Act. The claimant reiterates that there is no evidence of service of query on her to warrant her respond as required by the Council Act and ensuring fair hearing. Again, the investigation carried out by DW2 is by delegated powers of the defendant to investigate the allegation of misconduct against the claimant, and the report is undated and has no value whatsoever in law. That the defendant’s assertion is apparently not only in contravention of statutory mandatory provision but also misleading, and in the circumstance, the claimant can take advantage of evidence by the defence where it supports claimant’s case. See OTANMA vs. YOUDUBAGHA (Incomplete Citation).
It is the contention of claimant that most of the facts reproduced by defendant in their final written address were barren and not supported by law, as it is the law that no matter how beautiful the submissions of counsel could be, it cannot take the place of evidence on record, urging the Court to discountenance submissions of defendant which is lacking in merit, and hold in favour of claimant.
In her response on the allegation of crime against her in the civil suit, claimant submits that it is settled law that where the commission of a crime is alleged in a civil case, the party alleging must prove it beyond reasonable doubt. See AKINKUGBE vs. E.H. (NIG) LTD (2008) 12 NWLR (PT.1098) 375 @ P.395 PARA. F, RATIO 3. It is claimant’s submission that the defendant in the instant case failed to prove beyond reasonable doubt the criminal allegation against the claimant. That none of the Exhibits shows the commission of any offence by the claimant and no witnesses presented to the Court in prove of same. Also, DW1 who is the author of the Exhibits testified under cross-examination that claimant was indefinitely suspended to attend her trial, and DW1 who suspended claimant was signatory to same and not the Executive Secretary as required by the Act establishing the defendant. The claimant further submitted that the parties herein are bound by their pleadings which must be supported by evidence, without which the facts averred goes to no issue and must be disregarded. And the fact that issues are joined in pleadings and not in evidence is ignored at the parties’ peril, relying on ORLU vs. ONYEKA (2018) 3 NWLR (PT.1607) P. 467 @ 474 RATIO 9 SC.
The claimant in concluding her argument on the issue, relies further on the case of C.B.N. vs. IGWILLO (2012) 1 NILR PG. 1 SC, and submit that, it is settled law that where an employee’s service is protected by statute and employment is wrongfully terminated, he would be reinstated in his office and in addition entitled to damages representing his salaries during the period of the purported removal. That the claimant’s suspension in the instant case was for about 120 months instead of 3 months prescribed by the Act regulating the defendant, and the suspension was also imposed without any reference to a court or Investigation Committee. Since the defendant acted in breach of the provisions of the Act establishing, regulating and governing the claimant’s employment with defendant, the entire exercise leading to indefinite suspension of the claimant is a nullity. See EDET vs. CHIEF OF AIR STAFF (1994) 2 NWLR (PT.324) 41 @ 45.
The claimant reiterates that she has in this case, statutorily and judicially satisfied the requirements of the law upon her pleadings and evidence adduced, and therefore entitled to the reliefs sought; urging the Court to grant her reliefs in its entirety as prayed.
DEFENDANT’S REPLY ON POINT OF LAW
The defendant filed their reply on point of law on 7th day of February, 2021 in response to claimant’s final written address, and a sole issue was submitted by defendant for determination of the Court, to wit; “whether from the state of the pleadings and evidence before the Court, the claimant is entitled to the reliefs claimed.”
Responding to the above question in the negative, defendant relied on Section 13 (1 -4) of the Nigerian Educational Research and Development Council Act, which defendant reproduced in their address, submitting that from the above section, certain things are clear. Firstly, the defendant carries out their functions and responsibilities subject to its discretionary powers vested on them by the above section referred to. Secondly, the operative word “may” and “shall” used in the Act connotes discretion, and by law when words used in a document, the ordinary and literal meaning of that word would be used in the interpretation of the document, urging the Court to so hold. See MKPA vs. MKPA (2010) 14 NWLR (PT.1214) 612 @ 621.
It is the submission of defendant that the Act of the defendant (NERDC) has left no doubt as to whether the words “may” and “shall” as used in this case should be construed in a mandatory or discretionary manner. That the opening phrase in Section 13(1) “If any junior staff is accused of misconduct or inefficiency, the executive secretary may suspend him for not more than three months and forthwith shall……” leaves no doubt that the exercise of that power is discretionary; urging the Court to so hold. And assuming without conceding that the Court holds otherwise, the question which now arises, is “whether by the terms of contract of employment entered between the claimant and the defendant, the claimant’s employment is governed by the Public Service Rules.”
Defendant answered the above question in the affirmative, and submitted that it is trite law that parties are bound by the contract of agreement, referring the Court to paragraph 2 of Exhibit CWT10 (Offer of Appointment Letter), which defendant reproduced thus:
“Your appointment is at the pleasure of the Council and subject to the terms and conditions laid down by the Federal Civil Service of Nigeria and the Federal Republic of Nigeria.” (Emphasis by defendant).
According to defendant, from the above, parties herein have agreed to be governed by the terms and conditions laid down by the Federal Civil Service of Nigeria, and the statute regulating the Federal Civil Service of Nigeria is the Public Service Rules (PSR), which clearly spelt out remuneration, duties of all public servants, condition of service, discipline and the process of bringing the contract to an end. That claimant in the course of her cross examination never discredited Exhibit DWA1 (Query) served on her and informing her of the act of serious misconduct alleged against her; she was also given a reasonable time to respond in her explanation letter (Exhibit DWA2). It is a general principle of law that where there is a fair and valid reason for suspending an employee for an act of serious or gross misconduct, notice of suspension should be given to the employee in writing before issuing the notice to suspend. To further support their argument on this point, defendant reproduced and relied on Rule 030406 of the Public Service Rules, which provides thus:
“Suspension…..it shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument.”
It is the submission of defendant that by the above provision, a prima facie case was established against the claimant by the investigation report (Exhibit DWE3) which led to her suspension pending the determination of the criminal charge at the Federal High Court. More so, defendant has the power to delegate to the Nigerian Copyright Commission since defendant has no prosecuting power, urging the Court to so hold.
The defendant then further urged the Court to hold in their favour and dismiss the claimant’s suit in its entirety for being frivolous and lacking in merit.
I read the processes filed by the parties and the submissions made by them in their addresses before this Court. I have equally considered the evidence adduced, documentary and oral by parties, and evaluated them accordingly. Having considered the issues formulated in the respective addresses of the parties, this Court will adopt the sole issue submitted by claimant for determination, as follows:
“Whether from the pleadings and totality of evidence adduced before this Court, the claimant has proved her case to be entitled to the reliefs sought against defendant in this suit.”
Before dealing with the above issue, it is pertinent to address some preliminary issues which had arisen in the course of the proceedings. Defendant counsel had in course of proceedings challenged the admissibility in evidence of Exhibit CWT13 (Record of proceedings at the Federal High Court, Abuja Judicial Division). The argument of defendant counsel is that the document in issue was not completely frontloaded, but only the last page was frontloaded. I have looked at the document (Exhibit CWT13) and the pleadings of the claimant, particularly paragraphs 20 – 23 of claimant’s statement of facts and 22-24 of her written statement on oath, wherein the claimant referred to the record of proceedings at the Federal High Court Abuja, regarding the charges against her and one Tajudeen Ibrahim. The defendant have in paragraphs 12 – 15 of their statement of defence, joined issues with the claimant to the effect that claimant was charged at the Federal High Court, Abuja Judicial Division in respect of the offence of reproducing the Educational curriculum of the defendant, without the consent of the defendant. Exhibit CWT13 is the record of proceedings showing what had transpired at the Court on the allegations against the claimant, and how it was determined.
Exhibit CWT13 is a certified true copy of the record of proceedings of the Court, and on which parties have joined issues. The failure to frontload totality of Exhibit CWT13 or even not to have frontloaded same at all, could not be used technically to shut out claimant from exercising her constitutional right of access to justice and fair hearing. The Court has held severally that failure to frontload is an irregularity which should not vitiate the suit so filed. See Sylvester vs. Ohiakwe (2014) 5 NWLR (Pt. 1401) 467 CA. Consequently, the argument of defendant regarding Exhibit CWT13 is rejected, as I hold that Exhibit CWT13 was properly admitted in evidence.
Regarding Exhibits CWT1 – CWT7; facts regarding these documents were duly pleaded by claimant in her reply to statement of defence, filed 9th day of May, 2019, and also in her oral evidence on oath. It is the evidence of CW that she had issues with her ex-husband and was before the Area and Sharia Court of Appeal of the Federal Capital Territory, Abuja. That her ex-husband promised and indicted her along with one Mr.Tajudden, an unknown or fictitious person; that her ex-husband had petitioned to her place of work in such a way that claimant will avoid prosecuting her case against her ex-husband.
The Defendant has not on this point, and in the course of proceedings in this suit, challenged the admissibility of Exhibits CWT1-CWT7 in evidence. Claimant has established that the petition against her by her ex-husband at her place of work was meant to cause her to avoid prosecuting the suit against her ex-husband at the Sharia Court of Appeal and the Area Court of the Federal Capital Territory, Abuja, hence Exhibits CWT1 – CWT7 tendered by claimant and admitted in evidence. It is the evidence of CW in paragraphs 10 and 14 of her statement on oath adopted before this Court, that her ex-husband had informed the then Executive Secretary of defendant that he suspected the claimant was involved in the unauthorized production of defendant’s curriculum. This led to the claimant being investigated, detained and charged to Court. The defendant counsel did not challenge Exhibits CWT1 – CWT7, neither the evidence of the claimant in the above paragraphs. I hold in the circumstance, that the arguments of defendant to the effect that Exhibits CWT1 – CWT7 have no nexus with claimant’s suspension, is untenable. What is more, the address of defendant no matter how strikingly presented cannot take the place of evidence, and this is settled law. See ADEGBITE & ANOR. V. AMOSU (2019) 4 NWLR (PT. 1663) 457.
Again, it is settled law that when the evidence of the plaintiff is unchallenged or discredited, it should be relied on if such evidence is adduced to establish a relevant fact. The case of CBN vs. OKOJIE (2015) 14 NWLR (PT.1479) PAGE 231 @ 258 PARA C-D, is applicable in this case. Consequently, the submissions of defendant regarding Exhibits CWT1 – CWT7 are hereby discountenanced.
The crux of the claimant’s case is that her indefinite suspension by defendant, even after the criminal charge against her was terminated at the Federal High Court Abuja Division, is ultra vires, unconstitutional, wrongful and unlawful. The claimant relies on Section 13 of Nigerian Educational Research and Development Council Act, and that defendant is in breach of the above provision, having suspended her indefinitely instead of the 3 months suspension period as prescribed by the Act establishing defendant. Section 13 of the Nigerian Educational Research and Development Council Act, is reproduced thus:
Discipline of junior staff
(1) If any junior staff is accused of misconduct or inefficiency, the executive secretary may suspend him for not more than three months and forthwith shall direct the matter to the Junior Staff Appointment and Promotion Committee—
(a) to consider the case; and
(b) to make recommendations as to the appropriate action to be taken by the executive secretary.
(2) In all cases under this section, the junior officer shall be informed in writing of the charges against him and be given reasonable opportunity to defend himself.
(3) The executive secretary may, after considering the recommendation made pursuant to subsection (1) (b) of this section, dismiss, terminate, retire or downgrade the junior officer concerned.
(4) Any person aggrieved by the executive secretary’s decision under subsection (3) of this section, may within a period of 21 days from the date of the receipt of the letter communicating the decision to him, address a petition to the Board to reconsider his case and the Board’s decision thereon shall be final.
It is not in dispute that the employment of the claimant is one regulated by statute, and that claimant was a junior staff before her indefinite suspension by defendant. The allegation against the claimant by Exhibit DWA1(Query) dated 16/8/2011 is for act of Serious Misconduct under Sections 030401 and 030402 of the Public Service Rules(PSR). Serious Misconduct is defined under Section 4 of the PSR as follows:
“……..is a specific act of serious wrongdoing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.”
The PSR equally provides that Disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306. The claimant herein was investigated on the allegation against her, she was queried, and responded to the query vide Exhibit DWA2, and then suspended vide Exhibit DWA3, and subsequently charged to court. The oral evidence of DW1, Anandi Peter further confirms this; and DW2, Emeana Sylvester Emeka further testified that he was the investigating officer with Nigerian Copyright Commission, and the claimant’s case was referred to him to handle, and that Exhibit DWE3 is an official document from Nigerian Copyright Commission. The claimant’s counsel had challenged admissibility of Exhibit DWE3, to the effect that it was not signed and not on the letter head paper of the Nigerian Copyright Commission, and has no nexus with the defendant in this case.
Having perused Exhibit DWE3, I observed that it is signed by DW2, and it is dated 17/6/2011 and also forwarded to the Director General of the Nigerian Copyright Commission for onward submission to the prosecution department. Exhibit DWE3 is also certified as true copy by the Nigerian Copyright Commission. The maker of the document has been disclosed as DW2, and DW2 answered questions relating to Exhibit DWE3. Even then, it is at discretion of the Court to admit the document in evidence even where the maker is not called, once the document is relevant. The position of the law is clear to the effect that a document can be tendered by a party to it or by one who has proper custody of it. Thus, a witness as in this case who signs Exhibit DWE3 and has custody of same and tenders it at trial does satisfy the legal requirement of admissibility of the document in evidence. See UDO vs. ESHIET (1994) 8 NWLR (Pt.363) PAGE 483 @ 500, PARA E.
It is against the above backdrop, that I find Exhibit DWE3 proper before the Court. Consequently, all arguments of claimant’s counsel regarding Exhibit DWE3 are all hereby discountenanced.
The next issue to be dealt with, is whether the defendant can suspend the claimant indefinitely? I have read Rules 030401 and 030402 of the PSR which defendant applied in suspending the claimant on allegation premised on serious misconduct. By Rule 030403 of the PSR, disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306 of the PSR. See also Rule 030405 on disciplinary procedure for misconduct and serious misconduct. The word “shall” in ordinary meaning in a statute is mandatory and not permissive; which could be interpreted also depending on the context in which it is used, such that “shall” could also mean “may”. See BPS CONSTRUCTION & ENGINEERING COMPANY LIMITED vs. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2017) 10 NWLR (PART 1572) P1 @ 35 PARA D-E.
Notwithstanding the above, there is nowhere in Rules 030401, 030402 or even 030302 to 030306 of the PSR where defendant in this case is permitted to suspend the claimant indefinitely. More so, by Section 13 of the Nigerian Educational Research and Development Council Act, reproduced earlier on in this judgment, a junior staff as in the instant case accused of misconduct or inefficiency, may be suspended by the Executive Secretary for not more than three months and forthwith shall direct the matter to the Junior Staff Appointment and Promotion Committee to consider the case; and to make recommendations as to the appropriate action to be taken by the Executive Secretary. The Executive Secretary may after considering the recommendation made pursuant to subsection (1) (b) of section 13, dismiss, terminate, retire or downgrade the junior officer concerned.
In this case, the claimant was suspended indefinitely and effective from 23rd day of August 2011 vide Exhibit DWA3. The defendant also, failed to refer claimant’s case to the Junior Staff Appointment and Promotion Committee in accordance with Section 13(1) (a) of NERDC Act. It must not be forgotten that the claimant’s appointment is regulated by statute and the defendant can only suspend her in accordance with the Public Service Rules and the Regulations which governed the appointment. It is well settled law that, when a statute directs that certain procedures be followed before a person can be deprived of his right, whether in respect of his person or office, such procedure must be strictly followed. See U.N.T.H.M.B. vs. NNOLI (1994) 8 NWLR (PT.363) 376.
The word “suspension” means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. Suspension conveys a temporary or transient disciplinary procedure, and it keeps the person disciplined away from his regular occupation, and the initiator of the discipline during the period of suspension makes up his mind as to what should be done to the person facing disciplinary measure. A suspension of an employee is a normal procedure taken in order to facilitate investigation of an alleged impropriety; but then the suspension must not be in breach with the terms and conditions of service with the claimant. See BENUE CEMENT COMPANY PLC vs. PETER ASOM AGER & ANOR (2010) 9 NWLR (PT.1199) 292; UNIVERSITY OF CALABAR vs. ESIAGA (1997) 4 NWLR (PT.582) 719 CA.
In the instant case, claimant was suspended indefinitely exceeding the maximum period of three (3) months provided by Exhibit DWA3. There is no provision in Exhibit DWA3 providing for indefinite suspension in the relationship between the parties in this suit. The defendant ought not to have exceeded the maximum of three (3) months, and having exceeded this period, has clearly breached the terms of claimant’s conditions of service with defendant. The fact that Exhibit DWA3 not only suspended the claimant indefinitely without pay from the services of the defendant but also restricted her presence at the premises of the defendant by dispensing with the services of the claimant, the intention to terminate the services of the claimant can rightly be read into the contents of the suspension letter (Exhibit DWA3) and no more. It could also be rightly said that the indefinite suspension here as per Exhibit DWA3 by defendant amounted to constructive dismissal from service.
The Court of Appeal has affirmed on the issue of suspension, that where it was irregularly done, as it seems in the present case, and where it is not shown that the suspension was a step in disciplinary proceedings, then the claimant will be entitled to have the suspension set aside, and will be entitled to wages she has lost in the period of her suspension. The claimant in the instant case, by her suspension did not cease to be a staff of the defendant since her appointment was never terminated. More so, the accuser (defendant) must prove to the satisfaction of the Court, and even beyond reasonable doubt that the claimant committed acts of serious misconduct after hearing the case. The law is that the employee’s appointment cannot be terminated in any manner as defendant seems to have done in this case, particularly where it is based on allegation of the commission of a criminal offence; the employer must first establish the criminal culpability or otherwise of the employee, which has not been done in this case. See Dr.TUNDE BAMGBOYE vs. UNIVERSITY OF ILORIN & ANOR (1999) 10 NWLR (PT.622) 290; UNIVERSITY OF CALABAR vs. ESIAGA (1997) 4 NWLR (PT.502) 719; HON.JUSTICE KAYODE BAMISILE vs. NATIONAL JUDICIAL COUNCIL & ORS (2013) FWLR (PT.678) 911; SAPARA vs. U.C.H. BOARD OF MANAGEMENT (1988) 4
NWLR (PT.86) 58.
It should not be forgotten that the claimant in the instant case was accused of committing an offence premised on serious misconduct in the course of her official duties. The matter was investigated and she was arraigned before the Federal High Court, Abuja Division. The defendant has failed to adduce any evidence of claimant’s conviction before any Court of law on the allegation against her. Meanwhile, by Exhibit CWT13 dated 3rd day of July, 2017, the complainant (Nigerian Copyright Commission) withdrew the charge against the defendant (claimant) in the instant suit, and this led to the case being struck out by the court. The implication here is that there is presently no criminal charge against the claimant at the Federal High Court, and I so hold.
The argument of defendant counsel in her oral submission before the Court is that the claimant has not been discharged of the criminal allegations against her, as defendant has refilled the suit. I reiterate that defendant has not presented any evidence that the claimant has again been arraigned before any court of law, or even presented any evidence to contradict Exhibit CWT13 which struck out the criminal suit against the claimant. It is the evidence of defendant witness, P.T.Anande (DW1) in paragraph 14 of his written statement on oath that the defendant had withdrawn the pending suit against the claimant. There is no further evidence presented by defendant to the effect that there is a pending charge against claimant after the initial suit was struck out. It is the position of the law that evidence that is neither challenged nor debunked remains good and credible evidence which should be relied upon by the Court, and the Court would in turn ascribe probative value to it. Parties herein have joined issues in relation to Exhibit CWT13, and the defendant have failed to convince the Court that there is a pending charge against the claimant before any court of law; this Court ought to accept Exhibit CWT13 which struck out the charge against the claimant, and in support of the claimant’s case.
It is against this backdrop that I find Exhibit CWT13 as credible and reliable. See ODIBA vs. AZEGE (1991) 7 NWLR (PT.206) 724.
Furthermore, Defendant relied on paragraph 2 of Exhibit CWT10 (Offer of Appointment Letter), to the effect that claimant’s appointment is at the pleasure of the Council and subject to the terms and conditions laid down by the Federal Civil Service of Nigeria and the Federal Republic of Nigeria. According to defendant, they had a fair and valid reason for suspending the claimant for an act of serious or gross misconduct. I reiterate here that defendant did not follow the proper procedures laid down in Section 13(a) of NERDC Act or even the sections of the Public Service Rules relied upon by defendant in suspending the claimant.
Obviously, the claimant is a civil servant, and cannot be suspended at the pleasure of the Council or without compliance of the Public Service Rules and Regulations which governed the claimant’s appointment. It is well settled law, that when a statute directs that certain procedures be followed before a person can be deprived of his right, whether in respect of his person or office, such procedure must be strictly followed. See U.N.T.H.B. vs. NNOLI (1994) 8 NWLR (PT.363) 376.
The defendant’s failure to follow due process in this case, renders the claimant’s suspension wrongful, and I so hold. More so, suspension of an employee from work means suspension from ordinary duties assigned to him by virtue of his/her office. Defendant in this case, had no right in law to suspend the claimant without pay or even indefinitely, unless it was expressly contained in the terms and condition of her employment. By OLAFIMIHAN VS. NOVA LAY-TECH LTD (1998) 4 NWLR PART 547 P. 518, the suspension in this case will not deny the claimant of payment of her monthly and yearly remunerations/allowances, right from the date of issuance of the said letter of suspension (Exhibit DWA3) on 23rd day of August, 2011 till the date of judgment of this Court, and I so hold. See also, case of UNIVERSITY OF CALABAR vs. ESIAGA (SUPRA).
Arising from the above, I hereby grant relief (a) in full, to the effect that the continuous suspension of employment of claimant is unlawful, wrongful and of no effect. I also grant relief (b), to the effect that the indefinite suspension of the claimant is wrongful, unlawful and it is hereby set aside.
Consequently, claimant’s immediate reinstatement into service of defendant is hereby ordered, with all rights, benefits, and entitlements as duly applicable.
The relief relating to promotion is not granted, since promotion is not automatic and the claimant has not proved that she would have willy-nilly been promoted but for the indefinite suspension. Again, Relief (c) relating to the payment of outstanding salaries, is hereby also granted with a caveat that the outstanding salaries is effective from the date of suspension, i.e. 23rd day of August, 2011 until date of this judgement, and at the rate of (N30, 548.60 (Thirty Thousand, Five Hundred and Forty Eight Naira, and Sixty Kobo) per month. See (Exhibit CWT9), which is claimant’s last pay slip for July 2011.
It is observed that in paragraph 8 of claimant’s Statement of Facts, claimant averred that her last salary was N30, 548.60(Thirty Thousand, Five Hundred and Forty Eight Naira, and Sixty Kobo), which was paid in July, 2011. The claimant claims outstanding salary effective from July 2011, when it is obvious by Exhibit CWT9 that she was paid salary for the month of July 2011. Thus, this discrepancy shall only be fought on the documentary evidence before the Court, i.e. Exhibit CWT9, as there is no further evidence by claimant to show that she was not paid salary for the month of July 2011 or that her suspension took effect from the month of April 2011.
It is the law that pleadings cannot translate into evidence, and where there is no evidence to back up the pleadings, such averments are deemed abandoned. See NEPA vs. AUWAL (2010) LPELR – 4577 (CA). Consequently, the claim therefore for outstanding salaries from month of April is not sustainable in view of Exhibits CWT9 and DWA3 which states that last salary of claimant was in July 2011, and suspension effective 23rd August, 2011. The claimant has therefore, partially succeeded in her relief(c).
Relief (d) is granted in the following manner: the claimant shall be paid all her outstanding salaries outstanding in the period of her indefinite suspension, in the sum of N30, 548.60(Thirty Thousand, Five Hundred and Forty Eight Naira, and Sixty Kobo), per month from the month of August 2011, till date of this judgment.
Claimant’s relief (e), is for the sum of 300, 000.00(Three Hundred Thousand Naira) as General and Special Damages. It must be noted that general damages is not the same as special damages where one has to itemise and prove all issues being claimed. But whether general or special damages, it must be noted that double
compensation should be avoided. See MOBIL PRODUCING NIG. UNLT & ANOR vs. UDO (2008) LPELR – 8440 (CA).
It need be emphasised here that, the principles governing the grant of general damages in torts cannot be interchangeable with the principle governing the grant of damages in actions based on contracts. It is clear that the assessment of damages for breach of contract, which is applied by the Courts, is restitution in
integrum. See ADEKUNLE vs. ROCK VIEW HOTEL (2004) 1 NWLR (PART 853) P.161. The law is that where an employee is not paid for a period of employment
in respect of which he is entitled by the contract to be paid a fixed amount, his claim is not one for damages but a debt, namely, payment for an agreed sum, since he is entitled to be paid according to the agreed rate. The employee cannot claim in addition to the sum due, damages for delay in paying the salary. Also, a Plaintiff who has been adequately compensated under one head of damages as in the instant case cannot claim damages under another head in respect of the same claim.
The award of general damages in this case in the sum of N300, 000.00, is improper as this would amount to double compensation, particularly as the quantum of loss is ascertainable. The law, therefore, will not allow a litigant who
made a claim for specific performance or specific losses suffered by him to add another figure under the head of general damages. The claimant herein has succeeded in her reliefs for salaries and allowances from the date of her suspension till the date of judgment, and not entitled to award of general damages. Again, the circumstances in this case do not warrant the award of general damages in respect of emotional trauma, stigma and financial hardship. Therefore, the award of outstanding salaries, allowances and other entitlements of claimant from the period of her suspension to date of this judgment, are enough to take care of whatever injury the claimant has suffered as a result of her indefinite suspension. I so hold.
Regarding the Alternative reliefs of the claimant; the Court having granted the claimant’s main reliefs, the Alternative reliefs are not sustainable. It is the law that a court will proceed to make an order in respect of an alternative claim where the main or previous claim did not succeed. However, where a court grants the main claim of a successful party to a suit, there will be no need to consider any alternative claim. See GOLDMARK (NIG.) LTD vs. IBAFON Co. LTD (2012) 10 NWLR (PT.1308) P.291. Consequently, the alternative reliefs of the claimant in this suit are all hereby rejected.
Accordingly, the sole issue is resolved against the defendant.
For the avoidance of doubt, this Court finds and also holds that the indefinite suspension of the claimant in this case is wrongful, unlawful and of no effect whatsoever and same is hereby set aside. It is the order of this Court, that the claimant shall be reinstated immediately in the services of the defendant and paid all her outstanding salaries, allowances, benefits, and other entitlements as applicable to her from the date of her suspension on 23rd August 2011, until the date of this judgment.
In the end, the case of the claimant succeeds on its merit. I make no order as to cost.
Judgment is entered accordingly.
Hon. Justice R.B.Haastrup