➥ CASE SUMMARY OF:
Dr. Solomon Kehinde Olowookere v. University of Ilorin (NICN/ABJ/291/2019, 3rd November 2022)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Defective statement on oath;
Disciplinary action.
➥ CASE FACT/HISTORY
The Claimant via a an Amended General Form of Complaint, Statement of Facts and other frontloaded process dated and filed 11 February 2020 instituted a suit against the Defendant seeking the Honorable Court for the following reliefs:
a. A DECLARATION setting aside the constitution, composition, and findings of the Disciplinary Committee which tried the Claimant upon which his letter of dismissal was founded for lack of competence to try a criminal allegation of rape or sexual assault.
b. A DECLARATION that the purported dismissal of the Claimant from the service of the Defendant by a letter dated June 27, 2019, did not follow due process of law and procedure.
c. A DECLARATION that the purported dismissal of the Claimant from the service of the first Defendant by a letter dated June 27, 2019 is null, void and of no effect, having being in breach of the right to fair hearing as guaranteed by the 1999 constitution.
d. A DECLARATION that the employment of the Claimant with the first Defendant is showered with statutory flavour, and regulated by law.
e. A DECLARATION that the Claimant is still in the employment of the first Defendant.
f. AN ORDER re-instating the Claimant back to his employment and in his position prior to the purported dismissal.
g. AN ORDER directing payment of the Claimant unpaid salaries and other benefits including promotion from June 27, 2019 till his re-instatement as follows:
h. Salary at the rate of N134.141.09 (One hundred thirty-four thousand, one hundred forty-one naira, nine kobo) (Net salary) per month from July 2019 till reinstatement.
i. Earned allowances from years 2015, 2016, 2017, 2018, and 2019 till judgement and reinstatement.
j. Payment to the Claimant by the Defendant, of a sum N150,000,000.00 (One Hundred and Fifty Million Naira) as damages for the suffering, trauma, injury and other inconveniences suffered by the Claimant as a result of his purported and wrongful dismissal by the first Defendant. k. N500, 000.00 (Five Hundred Thousand Naira) as the cost of this proceeding.
The Claimant, an employee of the Defendant was appointed as an Assistant Lecturer by the Defendant, vide a letter dated 12 day of November, 2014. His appointment with the Defendant was confirmed vide a letter dated 25 September, 2017. His duties as an academic Staff of the Defendant include, teaching of students, Staff Adviser for the Department of Arts Education and level Adviser to the students in the Department of Arts Education. And these duties brought him into constant relationship with the students, especially in the Department. On the 29 day of June, 2019, he was served with a letter of dismissal by the Defendant dated 27 day of June, 2019 effective same day. Prior to the service of the letter of the dismissal he was served with query dated March 12, 2019. The query alleged him to have forcefully and sexually assaulted a female student in Department of Arts Education. He made a response sequel to the said query dated 14 March, 2019 which was subsequently followed by the initiation of Disciplinary proceedings. In his responses to query and at the Disciplinary Committee proceedings, he denied the alleged rape or other act of sexual assault. He stated that he was denied fair hearing during the sitting at the Disciplinary Committee. As he was not allowed to listen and hear the evidence given against him by the witnesses called by the Committee, neither was he allowed to cross-examine the said witnesses. He was not given access to the document used against him and he was not allowed to see any of such document neither was he given access to the report of the disciplinary committee; nor did he sign any such report which would enable him to know the findings of the committee.
➥ ISSUE(S) & RESOLUTION(S)
[CASE DISMISSED]
↪️ I. Whether the Claimant is entitled to succeed?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[AN EMPLOYEE NEED NOT FIRST BE PROSECUTED FOR AN OFFENCE BEFORE EMPLOYER CAN DISH OUT DISCIPLINARY ACTION
‘Now to the two misconceptions: Firstly, to the claimant that, considering the nature of the allegations against which according to the Claimant, rises to the level of criminality, the claimant maintains that unless and until criminal charges were brought and successfully proved against him that he could not be disciplined, while the Defendants argue that they were well within their rights to act as they did in terminating the Claimant as they did. Well A similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court or criminal tribunal before disciplinary issues or action can be raised, was advanced inIke Edward Chukwuemeka v. Enterprise Bank unreported Suit No. NICN/LA/181/2011 the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 to 17 – The claimant was invariably relying on the old dispensation as evinced by case law authorities such as Biishi v. The Judicial Service Commission** to argue employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as Arinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 SC affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. That it is, therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA reiterated and applied this principle. In the instant case, therefore, the argument of the claimant in that regard accordingly goes to no issue; and I so find and hold.’]
.
.
↪️ II. Whether having regard to the incurable defective Amended witness’s written statement on oath of the Claimant adopted before this Honourable Court, the Claimant could be said to have led any evidence to support his claim to have warranted the grant of the Claimant’s claim by this Honourable Court?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE STATEMENT ON OATH IS DEFECTIVE
‘In the circumstances of this case and considering the provisions of Order 3, I am inclined to rely on the pronouncement of the Court of Appeal in OYEKANMI & ANOR v. MTN (2020) LPELR-50168(CA). I find for the Defendants that the claimant witness statement on oath falls short of the requirement of a written statement on oath and it fails to anchor the claimants case, this means that the claimant has nothing before this court in furtherance of his Claims.’]
.
.
.
✓ DECISION:
‘The judgement of this court is therefore that the claimants case is hereby struck out.’
➥ FURTHER DICTA:
⦿ DIFFERENCE BETWEEN STATEMENT ON OATH AND AFFIDAVIT
The position of the law with regard to the Defendants witness statement on oath in such a situation is as was stated in the case of MAJEKODUNMI & ORS V. OGUNSEYE (2017) LPELR- 42547(CA) (PP. 40-45 PARAS. D) “To determine this issue, I find it necessary to state the legal status of a Written Statement on Oath. It should be noted that, unlike an affidavit per se, a Written Statement on Oath filed in Court is not evidence, unless it has been duly adopted by the witness at the trial. In other words, a Written Statement on Oath will only be evidence to be used by the Court in the determination of the Plaintiff ‘s Claim, if it has been adopted by the person who deposed to it as his testimony during the trial. If it is not so adopted, it is deemed abandoned and therefore cannot be examined by the trial Judge. An Affidavit on the other hand is the evidence of the witness made in writing. Thus, whether or not the deponent appears in Court, such depositions are capable of being evaluated by the Court as evidence. See Splinsters (Nig.) Ltd & Anor v. Oasis Finance Ltd (2013) 18 NWLR (pt.1385) p.188 at 227 per Izoba, JCA; Agagu v. Mimiko & Ors (2009) 7 NWLR (pt.1140) p.34; Oraekwe v. Chukwuka (2012) NWLR (pt.1280) p.87 at 201. — E.N. Agbakoba J.
➥ LEAD JUDGEMENT DELIVERED BY:
Honourable Justice E.N. Agbakoba
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
