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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA DATE: 28 JULY 2021 SUIT NO. NICN/ABJ/240/2018 BETWEEN Mr Ayodele A. Opaleye - Claimant AND Nigeria National Petroleum Corporation - Defendant REPRESENTATION C. Ogalagu, for the claimant. Miss Chioma Nwankwo, for the defendant. JUDGMENT INTRODUCTION 1. The claimant took out this action vide a complaint filed on 19 September 2018. The complaint is accompanied by the statement of facts, list of witnesses, list of documents and copies of the documents. By his statement of facts, the claimant is asking from the Court, against the defendant, the following reliefs: (1) A declaration that the dismissal of the claimant by the defendant in utter disregard of the recommendation of the Investigative Panel was done in bad fate (sic), malicious and against the clear provisions of extant laws. (2) A declaration that the selective recommendation by the defendant to the President of the Federal Republic of Nigeria the dismissal of the claimant whilst absolving several other members of the defendant’s staff in the loading operation in question was done in bad fate (sic), maliciously, capriciously and against the law. (3) An order setting aside the dismissal of the claimant by the defendant having been done maliciously and in bad fate (sic). (4) An order compelling the defendant to re-instate or properly retire the claimant. (5) An order compelling the defendant to pay to the claimant all his accrued salaries, remuneration, allowances, benefits, gratuities, pension all such other entitlement accruable to the claimant by virtue of his office or employment from the date of the malicious dismissal, being the 25th day of October, 2005 till date. (6) 10% post judgment interest monthly from the date of delivery of this judgment till the judgment sum is liquidated. (7) The cost of filing this suit. 2. The defendant entered formal appearance and then filed its defence processes: the statement of defence, list of documents, copies of the documents, list of witnesses and witness statement under oath. 3. To the defence processes, the claimant filed his reply to the defendant’s statement of defence and a written statement on oath in support of the reply to the statement of defence. 4. At the trial, the claimant testified on his own behalf as CW and tendered the following exhibits: Letter of Appointment (Exhibit C1), Letter of Transfer (Exhibit C2), 2 Letters of Promotion (Exhibits C3 and C3a), Letter of Dismissal (Exhibit C4), Notice of investigation hearing of the House of Representative’s Committee on Public Petition (Exhibit C5), Pre-action notice (Exhibit C6) and letter from the Ministry of Communication (Exhibit C7). For the defendant, Tunde Abidoye, the Supervisor Consequence Management, formerly the Policy and Compliance Officer, testified as DW and tendered Exhibits D1, D2 and D3. 5. At the close of trial, the defendant filed on 4 March 2021 its final written address; and on 15 June 2021, its reply on points of law. The claimant on his part filed his final written address on 22 March 2021. All these processes were respectively adopted by the parties on 6 July 2021. THE CASE BEFORE THE COURT 6. To the claimant, he was employed as a member of staff of the defendant on 1 June 1987. He rose through the ranks and after working with the defendant for several years, was promoted to the position of a Superintendent of Oil Movement (Operations) Department of Pipeline and Product Marketing Company (PPMC) of the defendant. That the duty of his Department includes raising of meter tickets based on nominated figures for loading of approved petroleum products including AGO on cargoes. The nomination ticket raised by the claimant’s Department is then transmitted to the Jetty Operation Department of the defendant who have the sole responsibility of communication of Cargo Order/notice to the cargoes’ vessel captains/masters for onward loading. 7. His case is that on 3 August 2005, the defendant nominated a cargo vessel (MT TUTUMA) to load 4000 metric tons of AGO product from Warri Refinery and Petrochemical Company (WRPC) Jetty. Upon receipt of the said nominated figure, which was transmitted to the claimant’s Department from the Supply and Distribution Department of the defendant in Lagos, the claimant’s Department in tandem with their responsibility (through the claimant’s subordinate, Mr F. I. Olofu) raised a meter ticket covering the said 4000 metric tons of AGO product as nominated by the defendant for subsequent issuance of the Cargo Order by WRPC Jetty Operators. Upon completion of the loading, the “PPQC/WRPC” in the course of preparing the shipping documents discovered conflicting figure of 4000 metric tons (the nominated figure) from the Jetty as opposed to the 5000 metric tons programmed. Upon this discovery of the conflicting figures, the WRPC commenced back pumping of the excess product. However, the back pumping was stopped by the office of the GMD who instructed that there should be no back pumping since the marketer (OBAT OIL) had paid for 6000 metric tons since January 2005. 8. Following the discovery of the said conflicting figures (the nominated figure and the figure programmed to the loaded) on MT Tutuma, the defendant set up a 6-man investigative panel, which after its enquiries recommended several disciplinary measures to be meted out to the claimant and 11 other members of staff of the defendant. The 6-member panel, despite the overwhelming evidence that the claimant’s Department performed its own responsibility by raising the appropriate meter ticket covering the nominated figure of 4000 metric tons, relied on a vague purported minute of meeting to hold that in view of the fact that the claimant attended meetings wherein the conflicting figures appeared, the claimant was complicit in the alleged top-up of petroleum products. 9. To the claimant, notwithstanding the criminal nature of the allegation against him (bothering on fraud), the said panel without recourse to the police for investigation, charge of the claimant to court and subsequent pronouncement of guilt, recommended the compulsory retirement of the claimant from the service of the defendant. That the defendant on its own part, totally went outside the recommendation of the investigative panel and obtained the approval of the President of the Federal Republic of Nigeria to dismiss him from the employment of the defendant. That he protested the unlawful dismissal through different fora without success and eventually filed this suit before this Court. 10. To the defendant, the claimant was properly dismissed in line with the law. That the claimant, as a superintendent or departmental head, attended series of meetings wherein they unlawfully altered loading figure of 5000 MT of AGO instead of the approved/nominated figure of 4000 MT featured prominently and the claimant negligently and/or acquiesced to the unlawful figure alteration conspiracy by not raising the issue and/or speaking against the alteration since he and the department that he headed prepared the ticket for loading and had the approved document. The defendant accordingly posits that the 5000 MT of AGO nominated for the vessel MT Tutuma was introduced surreptitiously by the claimant and his colleagues of the Oil Movement Department of the PPMC Warri refinery. It is thus the case of the defendant that the Oil Movement unit of the PPMC Warri refinery of which the claimant was the superintendent failed to confirm the nominated quantity of 4000 MT to their shore counterpart before the loading of the vessel MT Tutuma. Rather, the claimant and his team misled their shore counterpart into the loading of 5,000 MT of AGO on the vessel MT Tutuma. That the claimant and his colleagues never at any of the coordination meeting held raise the issue of the illegal loading of the vessel MT Tutuma with other teams at the coordination meeting of the PPMC. The illegal loading of the 5,000 MT of the vessel MT Tutuma was found out by the surveillance team of the defendant. The defendant went on that it did not act maliciously or in bad faith in dismissing the claimant as his dismissal would serve as a deterrent to other staff of the defendant who were in the habit of unlawfully altering and inflating approved figures of petroleum products for loading in the designated vessels thereby shortchanging the Federal Government of Nigeria and its citizens. THE SUBMISSIONS OF THE DEFENDANT 12. The defendant submitted two issues for determination, namely: (1) Whether the defendant is bound by the disciplinary measures recommended against the claimant and the other staff by the investigative panel as to make the dismissal of the claimant illegal if not adhered to strictly. (2) Whether the claimant has proved his case on the preponderance of evidence before the Court as to entitle him to the declaratory and other reliefs sought. 13. On issue (1), the defendant submitted that the investigation panel it raised acted as its agent for the purpose of the said investigation. That being its agent, the defendant is allowed by law to go beyond the powers given to the panel to investigate and make necessary recommendations, citing Mr Ibrahim Jubril v. Military Administrator, Kwara State [2006] 3 NWLR (Pt. 1021) 357 and Nigerian Gas Company Ltd v. Mr G. O. Dudusola [2005] 18 NWLR (Pt. 957) — the page was not given. 14. The defendant submitted further that the Public Service Rules (2009) allow the employer being the defendant in this case to use the findings and recommendations of the panel to reach a decision for the interest of the defendant. That this position the panel also acknowledged in its conclusion thus: “In view of the foregoing panel’s findings and recommendations thereto, NNPC management is hereby requested to kindly consider and approve the recommendations for implementation”. That from this it is clear that the panel acknowledged that it’s recommendations are subject to the final approval of the defendant and not sacrosanct as being canvassed by the claimant. That the Public Service Rules (PSR) of 2009 particularly Rule 030401, defined “serious misconduct” as a specific act of very serious wrongdoing and improper behavior which is inimical to the image of the service and which can be investigated and if proven may lead to dismissal. That the investigation panel of the defendant of “Warri September,2005”, found the claimant alongside other members of his team liable for the illegal loading of 5,000 MT of AGO of product on the vessel MT Tutuma rather than the approved nominated figures of the 4,000 MT of AGO product. 15. To the defendant, the panel found the claimant and members of his Department liable for the excess loading of the vessel MT Tutuma, which constitutes a “serious misconduct” within the provision of the Public Service Rules (2009), and which also allows the employer to dismiss the employee as part of it’s disciplinary measures. Thus the dismissal, and not retirement of the claimant, is in accordance with the provisions of the Public Service Rules (2009), which regulates the conduct and practice of public servants. The defendant then urged the Court to so hold on this issue that the dismissal of the claimant upon being proven liable by the investigative panel for the excess loading of the vessel MT Tutuma along with other staff is within the powers of the defendant as part of its disciplinary measures against “serious misconduct” of its employee(s) is not illegal. 16. For issue (2), the defendant submitted that the claimant has failed to prove his case as encapsulated in his claims before the Court as to entitle him to the declaratory and other reliefs sought from this Court. Furthermore, that it is a settled principle of law that where a party seeks a declaratory relief, the burden is on him to prove his claim and he must succeed on the strength of his own case and not on the weakness of the defense (if any). Such relief will not be granted even upon the admission of the defendant, citing Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 297 and Ucha v. Elechi [2012] 13 NWLR (Pt. 1317) 330. That in the instant case, the evidence, particularly Exhibits C6 and D1 to D3, is clear that the claimant and his other colleagues committed a serious misconduct by loading the vessel MT Tutuma with 5,000 MT of AGO as against 4,000 MT of AGO nominated for loading and that the claimant neglected in his duty to raise in the various meetings that he attended in Exhibits D1 to D3 the issue of altered figure to 5000 MT of AGO as against the approved figure of 4000 MT which he and his department were aware of having featured prominently in the said meetings. That the claimant did not tender any document to show that the conclusion drawn from Exhibits C6, D1 to D3 were false, as nothing from his testimony (both oral and written) showed that it would be impossible for the claimant to have known of the existence of extra loading on the vessel MT Tutuma or that he only heard of the surpassed loading as he claimed during cross-examination. That he did not lead evidence as to the time of his purported hearing of the overloaded vessel beyond the approved figure of 4000 MT of AGO as to assist this Court in determining the veracity of his claim and its potency on the defendant’s position that he was aware of the altered figure to 5000 MT of AGO before and during the meetings he attended, deliberately refusing to correct the altered figure and allowing same altered figure to be used in loading the vessel until the fraud was detected by the defendant’s surveillance team. To the defendant, the refusal and/or failure of the claimant to lead evidence on the time of his purported hearing of the altered figure to 5000 MT of AGO as against the approved 4000 MT is obviously because he knew that the disclosure of the time would have exposed his lies to the Court and dismantle his case, urging the Court to rely on section 167(D) of the Evidence Act and so hold. 17. The defendant continued that the claimant in his evidence claimed that the nomination of the approved figure of 4000 MT of AGO was sent to his Department, which he heads, when he was on an official assignment and that his subordinate, Mr. Olofu F. I, handled the ticket preparation and was not armed with the said approved document containing the 4000 MT of AGO; and yet admitted in another breath in his evidence that he as the head of his Department attended the meetings with other departmental heads where the loading of the vessel MT Tutuma was discussed. To the defendant, if he was diligent and not negligent as the head he should have kept him abreast and armed with the approved document to nip in the bud the fraudulent act of overloading the vessel with unapproved AGO. His evidence, therefore, gives credence to the findings of the investigative panel and case of the defendant that the claimant was either part of the fraudulent conspiracy or was negligent in his duties. 18. The defendant proceeded that the claimant did not lead any evidence to show that the approved figure of 4000 MT of AGO was sent and handled by his subordinate, Mr Olofu F. I, and did not call the said Mr Olofu F. I. to confirm his claim. Accordingly, that the suppression of such vital evidence to support his claim was because the disclosure would have worked against his case where the truth would have been exposed, urging the Court to so hold in reliance on section 167(d) of the Evidence Act. 19. That from the findings of the investigation panel, as contained in Exhibit C6, the claimant was found liable owing to the fact the panel from it’s findings discovered that the claimant had a copy of the nomination paper, attended both the PPMC operations meetings and the joint WRPC/PPMC daily coordination meetings (referring to Exhibits D1 to D3) where the MT Tutuma vessel loading was discussed. That the panel further discovered that he was also the Secretary to the PPMC in-house operations meeting where the Tutuma was also discussed prior to loading. Thus it was impossible for the claimant not to know or claim not to know that the actual figure nominated for loading was 4,000 MT of AGO as against the 5,000 MT of AGO which was loaded on the Tutuma vessel. That the claimant never tendered any document to contradict the above findings of the panel before this Court; and it is a settled principle of law that the burden of proof is on the party who would lose if no evidence or further evidence were adduced, citing Bala & anor v. Hassan [2014] LPELR-23997(CA) and Akinwe Victor Adesule v. Akinfolarin Mayowa & ors [2011] LPELR-3691(CA). 20. To the defendant, the gravamen and trust of the claimant’s case is that his dismissal was malicious and done in bad faith. In answer, the defendant submitted that there is no evidence before the Court by the claimant seeking any specific relief from the Court or relying on the pleaded reliefs in his statement of facts; whereas the defendant expressly denied the claimant’s reliefs in his statement of facts and same was not addressed in the claimant’s further reply statement on oath. That it is trite law that pleadings not supported by evidence goes to no issue and since there is no evidence before the Court on the specific reliefs sought by the claimant from the Court, the Court not to grant reliefs not supported by evidence. 21. In conclusion, the defendant urged the Court to dismiss the claims of the claimant as same has not been proved before this Court. THE SUBMISSIONS OF THE CLAIMANT 22. The claimant on his part submitted three issues for determination, namely: (a) Whether from the evidence led before this Honorable Court and the panel, the recommendation of the investigative panel set up by the defendant against the claimant was not wrongful. (b) Whether by virtue of the criminal allegation leveled against the claimant, the defendant can lawfully dismiss the claimant from its employment without the verdict/pronouncement of a court of law. (c) Whether the claimant has not proved his case and entitled to the reliefs sought. 23. On issue (a), the claimant submitted that the defendant had set up a 6-man investigative panel to make enquiries on the allegation of top up/theft of AGO products against 12 members of staff of the defendant. That the report of the said investigative panel was exhibited in the claimant's Pre-action Notice (Exhibit C6) and marked as Annexure B. To the claimant, since the report of the investigative panel was reduced into writing, the best evidence of the enquiry made by the said investigative panel is the report of the panel itself and no oral evidence will be admissible to add, subtract from or contradict the contents of the document, citing Ojoh v. Kamalu [2005] 18 NWLR (Pt. 958) 523 at 580. 24. That a calm perusal of the said Annexure B (the panel’s report) to Exhibit C6 clearly reveals that there was no scintilla of any evidence whatsoever indicting the claimant whatsoever as complicit in the alleged theft of AGO product. The findings of the investigative Panel are contained in pages 18 to 22 of the Panel’s Report. The Panel’s Report in page 19/20 paragraphs 3, 4, and 5 states as follows: (3) THE METER TICKET FIGURE OF 4,000 MT The meter ticket for the loading of MT TUTUMA was issues (sic) by the PPMC (Programming Unit) to the operators (WRPC Oil Movement) at the Jetty with the actual nomination figure of 4,000MT on the 20th July, 2005 in favour of OBAT Oil & Gas Petroleum Limited. The meter ticket was dispatched and delivered to the Warri Jetty, and was signed for on 23rd July, 2005. (4) CARGO ORDER/NOTICE OF READINESS ADVICE: The cargo order/notice of readiness advice for the loading of MT Tutuma with 4,000MT of AGO was issued by the Jetty operators (Oil movement department) of WRPC and tendered to the ship captain, who accepted same, on 2nd August, 2005. (5) LACK OF COMMUNICATION BETWEEN WRPC OPERATIONS The WRPC Oil movement’s Jetty operators failed, refused and/or neglected to communicate the cargo order/notice of readiness advice accepted by the ship captain to their shore counterparts prior to the commencement of the loading. There was no confirmation of the nominated quantity, the pumping flow rate, estimated time of loading and the agreed quantity to be loaded on board M.T Tutuma by both the Jetty and Shore Operators. This is an act of negligence on the part of the shore operators who knew the laid down procedure considering their years of experience and yet chose to do otherwise. 25. The claimant went on that it is quite interesting that the investigative Panel in its findings specifically noted that the claimant’s department raised the appropriate meter ticket covering the nominated 4000 metric tons and that same was transmitted to the Jetty Operators. The panel further noted with particularity that the jetty operators failed, refused and/or neglected to communicate the cargo order/notice of readiness advice accepted by the ship captain to their shore counterparts prior to the commencement of the loading. 26. That in reiteration of the findings of the investigative panel as stated above, the defendant in their statement of defence at paragraph 7 thereof, stated as follows: “…the vessel, M.T Tutuma was loaded with 5000 MT by PPQC/WRPC as opposed to the 4000MT raised by the claimant’s Department”. That this was corroborated in the evidence of DW in paragraph 6(a) thereof where he stated as follows: That the meter ticket for the loading of the said vessel - TUTUMA was issued by the Programming Unit of the PPMC arm of the defendant of which the claimant was part of to the operators - WRPC, Oil movement Unit at the Jetty with the actual nomination figure of 4000 metric tones on 20/07/2005 in favour of OBAT OIL & GAS PETROLEUM LTD. 27. That it was, therefore, appalling when the same DW under cross-examination and upon realization of the import of the above admission turned around and deliberately lied as follows: No, the oil movement department raised 5000 metric tones, instead of 4000, for loading… No I did not lie in respect of the nominated figure as per paragraph 6(a)of my deposition. What was nominated was 4000 metric tons. It was the Claimant who raised it to 5000 metric tons. 28. Furthermore, that the Panel’s Report in pages 13 and 14, paragraphs 24 to 26 stated as follows: 24. Following enquiry on the loading of M.T Tutuma from the GMD’s office, the latter was informed by MTD, Warri Area office that Tutuma had completed loading but that it was overloaded and decision was being taken to pump back the excess cargo. 25. Consequently, the GMD’s office instructed that there should be no back-pumping as the marketer had paid for 6,000 mt since January. 29. The claimant continued that the only evidence relied heavily upon by the defendant to justify his dismissal are three vague purported minutes of meetings dated 1 August 2005, 2 August 2005 and 3 August 2005 (Exhibits D1, D2 and D3) in a futile effort to demonstrate that the claimant was present in the said meetings and that the 5000 mt figure was introduced in the said meetings. 30. To the claimant, DW under cross-examination admitted that members of staff usually convene two different meetings: The PPMC/WRPC daily coordinating meeting and the PPMC/OPERATIONS/TQM moving meeting attended by key operational officers of the defendant including the Area Manager, DM Operations, Superintendent MTD and Superintendent Oil Movement (the claimant). That DW also admitted under cross-examinations that Exhibits D1 to D3 are minutes for only the PPMC/WRPC daily coordinating meetings and not for the PPMC/OPERATIONS/TQM moving meetings. Thus, the defendant never tendered any minutes of meeting with respect to the PPMC/OPERATIONS/TQM moving meeting attended by the key operational officers of the defendant. That the question is whether this Court can ascribe any probative value or weight to Exhibits D1, D2 and D3. That the Court has held in a plethora of authorities that the admissibility of document is one thing and its probative value, quite another thing and this two aspects cannot be combined. Thus a document may be admissible but yet may not carry any conviction and weight — its probative value may be nil. 31. That should the Court take a calm perusal of Exhibits D1 to D3, it will find out that the said documents sought to be relied upon as minutes of meetings cannot by any stretch of the imagination be said to be minutes of meetings in the proper sense of the word. That the said purported minutes of meetings contained highlights of several statements. There is nothing in any of the documents to suggest what was discussed, who raised such discussion and deliberations made. To the claimant, he was therefore right when in paragraph 22 of his statement of facts, he described the purported minutes of meetings as “A computer print out of a purported minutes of meeting not signed by the Claimant”. That the Court should not ascribe any probative value to Exhibits D1 to D3 as they are vague, illusory and sketchy and cannot be relied upon by any reasonable tribunal to hold that the defendant was involved in a deliberation to introduce 5000 Metric tons of AGO as opposed to the nominated figure of 4000 MT. To the claimant, courts are courts of law and facts, and so cannot speculate, citing ANPP v. R. O. A.S.S.D [2005] 6 NWLR (Pt. 920) 140 at 178. 32. The claimant proceeded that during cross-examination, upon being confronted with the contradictory statement as to the meter ticket raised by the claimant, DW quickly introduced a new sphere into the case by stating that the claimant introduced the figure of 5000 Metric tons through a radio message. To the claimant, this is a futile and infantile attempt by DW in covering an obvious lie. In the first place, that DW had omitted that the Panel’s report and the totality of the evidence before the Court is that once the claimant’s Department (PPMC Oil Movement) raises a meter ticket in respect of a nominated figure, the ticket is transmitted to the Jetty Operators who will then communicate to the Captain of the cargo vessel (shore operators). The question then is how can the claimant whose duty stopped at raising meter ticket and transmitting same to the Jetty operators send a radio message introducing a new figure to the shore operators. 33. Secondly, the introduction of radio message was not contained in any of the pleadings filed by the defendant before this Court; neither is it contained in the statement on oath filed by the DW. Thus, the said statement is an unpleaded fact and also not covered by any evidence before the Court. That parties are bound by their pleadings and evidence fed on unpleaded matters goes to no issue. Similarly, unpleaded facts elicited under cross-examination go to no issue, citing Ojoh v. Kamalu [2005] 18 NWIR (Pt. 958) 523 at 548 to 549. That this case is also authority for the proposition that a party is not allowed to change his case at will. 34. In concluding this issue, the claimant submitted that based on the findings made by the Investigative Panel set up by the defendant to investigate the allegation of the fraudulent top-up or theft of AGO products, there was no basis for the recommendation made by the said Panel that the claimant should be compulsorily retired, urging the Court to so hold. 35. For issue (b), the claimant submitted that it is not in dispute that the allegation of deliberate overloading of MT Tutuma with 5000 metric tons of AGO product leveled against him borders on fraud and is, therefore, a criminal allegation. That DW admitted under cross-examination that, apart from the findings made by the investigation panel, the defendant did not refer the allegation against the claimant to the Police for investigation neither was it charged to court. That section 36(5) of the 1999 Constitution provides as follows: “Every person who is charged with criminal offence shall be presumed to be innocent until he is proved guilty”. The claimant then referred to Jibril v. Military Administrator, Kwara State [2007] 3 NWLR (Pt. 1021) 357 at 376 to 977, where it was held thus: The Supreme Court in Dongtoe v. C.S.C Plateau State decided that where there is allegation of the commission of a criminal offence against the employee by an employer which has been denied by the accused employee, the employer making the accusation of the commission of a criminal offence as a basis of dismissal of the employee from services must first satisfy the constitutional requirement of establishing the guilt of the employee according to the law. A domestic tribunal is competent to take action against an official accused in respect of his conduct where the officer admits the commission of the misconduct or crime on which the allegation is founded — if otherwise, the officer may not be disciplined until he has been tried before a regular court… In this case the appellant has been dismissed on allegation of fraud which when given the opportunity, he has denied. The finding of the investigation panel recommended to the Disciplinary Committee can be the basis of criminal action, but cannot be the basis of the dismissal of an officer who has not admitted a criminal allegation. It is my humble view that the first issue is resolved in favour of the appellant (the underlining is the claimant’s). 36. That it is not in dispute that the claimant had consistently denied the allegation of fraud leveled against him by the defendant and duly defended himself before the Investigative Panel. That the findings of the Panel, therefore, ought to have been a basis for the defendant to proceed with the prosecution of the claimant, establish his guilt before taking the disciplinary measures of dismissal, citing Unilorin v. Oluwadare [2003] 3 NWLR (Pt. 808) 557 at 577 to 579, which held: The disciplinary Committee before which the respondent appeared is only an administrative tribunal. It is certainly not a court. Once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and he would be sure of getting a fair hearing. It is because of the foregoing that the Supreme Court in the case of Yesufu Amudu Garba and others v. The University of Maiduguri…held that where the misconduct alleged involves crimes against the State, it is no longer a matter of internal discipline but a matter for a court or tribunal vested with judicial powers to try such offences. It is only after conviction by a proper court for these offences that the Vice Chancellor can proceed to exercise his disciplinary powers and expel the student if he so wishes. It follows in the present case that the purported exercise by the disciplinary Committee of judicial powers which are vested only in the courts or tribunal established for that purpose by law, the respondent by such exercise of judicial powers is denied the right of fair hearing. The purported trial is a nullity. 37. The claimant then urged the Court to hold that by not referring the allegation of fraud leveled against him to the Police for investigation and subsequent charge to court before taking disciplinary measures against him, the defendant jumped the gun, infringed on the provisions of the 1999 Constitution and accordingly, the recommendation made by the Investigative Panel and the consequential dismissal of the claimant by the defendant is a nullity. 38. Regarding issue (c), the claimant submitted that from all that has been canvassed in this address, the claimant has abundantly proved his claims and so is entitled to the reliefs sought. That in the course of this proceeding, the claimant successfully proved the following: (i) That the claimant’s Department performed their own responsibility of raising meter ticket covering 4000 metric tons of AGO Product which was the nominated figure for onward loading of MT Tutuma. (ii) That the claimant’s Department properly transmitted the meter ticket raised to the Jetty Operators. (iii) That the Panel in its report particularly pointed out that the excess loading of the AGO product was due to the negligence on the part of Jetty Operators who did not appropriately communicate to the shore operators. (iv) That the minutes of meeting relied upon by the defendant to conclude that the claimant was involved in a discussion to introduce 5000 MT as opposed to the nominated figure of 4000 MT is vague and without any form of probative value. (v) That in view of the fact that the allegation of fraud leveled against the claimant bordered on criminality, it was unconstitutional for the defendant to have gone ahead to dismiss the claimant when the claimant had not been given fair hearing before any court of law. 39. It is the contention of the claimant that his dismissal by the defendant is not just wrongful but clearly unlawful; and by virtue of the fact that the claimant’s employment is an employment laced with statutory flavor, the Court can properly order the re-instatement of the claimant. The claimant referred to Shell Petroleum Dev. Co. v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249 at 270 to 271, Savanah Bank (Nig) Plc v. Fakokun [2002] 1 NWLR (Pt. 749) 544 at 562, and Isievwore v. NEPA [2002] 13 NWLR (Pt. 784) at 436 SC. 40. In conclusion, the claimant submitted that having proved all the claims against the defendant, the Court should so hold. THE DEFENDANT’S REPLY ON POINTS OF LAW 41. The defendant’s reply on points of law follows the claimant’s formulated issues. On the claimant’s issue (a) i.e. whether the Panel set up by the defendant against the claimant was not wrongful, the defendant submitted that this issue as formulated by the claimant is grossly at variance with the claims of the claimant in this suit. 42. Referring to the claimant’s relief (1), the defendant submitted that the relief as couched was clearly and unambiguously on the defendant’s non-compliance with the recommendation of the Investigative Panel wherein he claimed his dismissal by the defendant was contrary to the recommendations of the Investigative Panel and done in bad faith, malice and against the extant laws, and upon this claim the defendant joined issues with the claimant and defended this suit as distinct from the claimant’s issue (a) now formulated by the claimant in his written address that is totally novel and thereby springing a surprise on the defendant which is abhorred by the law. 43. That the claimant from his claim in his complaint of facts and originating processes supported by his evidence under oath did not have any issue with the constitution, proceedings and recommendations of the Investigative Panel but only quarreled with the defendant’s disregard of the said Panel’s recommendations which he alleged was done in bad faith, out of malice amongst others and he failed to prove by evidence the said disregard of the recommendations of the panel by the defendant and/or how the purported disregard of the Panel’s recommendations, which resulted in his dismissal, was borne out of bad faith, malice or against the provisions of any extant laws as claimed by him in his originating processes and statement on oath thereon. 44. Referring to the claimant’s relief (2), the defendant submitted that the claimant once again under this claim did not raise any issue against the constitution or propriety of the defendant’s Investigative Panel and its recommendations, and did not claim that the recommendations of the Panel should be set aside as to now formulate his first and second issues far determination by this Court. 45. That the claimant’s claims and statement of facts in support of his claims/originating processes hinged on his clear and unequivocal acceptance of the defendant’s constituted Investigative Panel and the recommendations of the Investigative Panel and was only asking the Court to hold that the recommendations, though right, were not complied with by the defendant out of bad faith, malice amongst others and not as he is now contending in his written address under his issue one formulated in his written address. 46. Furthermore, that the claimant’s reliefs (3) and (4) from his originating processes/complaint of facts flowed from his reliefs (1) and (2). The defendant then urged the Court to hold that the claims of the claimant as expressly and unambiguously contained in his originating processes and upon which the defendant joined issues with him and defended this suit cannot at this stage be unilaterally amended by the claimant who has waived any right of amendment that may have accrued to him from the evidence before the Court, that is if any was elicited and that issue (a) in the claimant’s written address contradicts his claims and should be discountenanced. That it is trite that a written address no matter how brilliantly couched cannot take the place of the originating processes and evidence thereon, urging the Court to discountenance the said claimant’s written address, citing Nigerian Army v. Philip Abayomi [2020] All FWLR (Pt. 1028) 894 at 902. 47. The defendant went on that the Court is bound by the case of the claimant as set out in his originating processes and cannot unilaterally go on a voyage of alteration of his case through his written address as the claimant cannot reprobate and approbate at the same time, citing Nigerian Army v. Philip Abayomi (supra) at 902 and 903 and Matthew Iyeke & ors v. Petroleum Training Institute & anor [2A20] All FWLR (Pt. 1028) 1009 at 1015. 48. The defendant further submitted that it is trite law that the claimant and the Court are bound by the claimant’s originating processes/pleadings in support of the case and the claimant in the instant case is bound by the originating processes/pleadings on his declaratory reliefs and claims and his evidence on oath thereon upon which the parties joined issues, citing Onibudo v. Akibu [1982] 13 NCC 299 and Ezechukwu v. Onwuka [2016] All FWLR (Pt. 82) — the page is not given. 49. To the defendant, it is trite law that in a declaratory relief the claimant must prove same as required by law and cannot rely on the weakness of the defendant's defence, referring to Ayanru v. Mandilas Ltd [2007] 10 NWLR (Pt. 1043) 462 SC at 477 to 478. That in the instant case, there is no evidence before the Court of malice, caprice, bad faith or contravention of any extant laws by the defendant in purportedly disregarding the recommendations of the Investigative Panel as claimed in the claimant’s declaratory reliefs and same should be dismissed consequently as enjoined by Ayanru v. Mandilas Ltd (supra) and Francis O. Oguntade v. Joseph O. Oyelakan & ors [2020] All FWLR (Pt. 1035) 19 at 21 and 23. 50. The defendant proceeded that the dismissal of the claimant was not wrongful or in disregard of the recommendations of the Investigative Panel; relying on Exhibit C6, wherein the Investigative Panel detailed its findings and proceeded to find the claimant and other members of his team liable for the extra loading of the MT Tutuma with 5,000 MT of AGO products. That the Public Service Rules (2009) governing the conditions and disciplinary actions against public servants under which the parties before the court are bound provides for the dismissal of an employee as a disciplinary action for a serious misconduct. The Rules also went ahead to define serious misconduct as, “a specific act of very serious wrong doing and improper behavior which is inimical to the image of the service and which can be investigated and if proven may lead to dismissal”. 51. That the Investigation Panel from Exhibit C6 found that the claimant was present both in the PPMC operations meeting and the joint WRPC/PPMC daily coordination meetings where the loading of the said 5,000 MT of AGO product was loaded against the 4,000 MT of AGO product originally nominated. Thus, the claimant could not have denied the knowledge of the fraudulent loading. Accordingly, that the panel after its investigation gave recommendations based on its findings and the defendant went ahead upon the said findings of the panel to dismiss the claimant. That this is provided for under the Public Service Rules (2009). Besides, the issue of the propriety of the defendant Investigative Panel’s proceedings, findings and recommendations as contained in Exhibit C6 were not contested or challenged by the claimant and that was not his case as put forward by him before the court for determination in his originating processes. 52. Regarding the claimant’s issue (b) i.e. whether the defendant can dismiss the claimant without the pronouncement of a court of law, the defendant submitted that this issue formulated by the claimant in his written address was not part of the case of the claimant before the Court as contained in his originating processes. That the issue, apart from not being part of the claim before the Court in his originating processes, was not pleaded; and issues were not joined thereon and so should be jettisoned by the Court. 53. Furthermore, that the position of the law relied upon by the claimant’s counsel on this issue is no longer the position of the law. That a more recent case, Zeabor v. Bayero University, Kano [2009] 17 NWLR (Pt. 1169) 96, held that “It is not in every case that an employee must be arraigned before a court before disciplinary action can be taken against him”. The case further held that “once the offense committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge”. To the defendant, the extra loading of the MT Tutuma by the claimant and his colleagues with 5,000 MT of AGO instead of 4000 MT of AGO is a misconduct within the domestic jurisdiction of the defendant for which the defendant can take appropriate disciplinary actions against the claimant and his team without recourse to a court of law. 54. Additionally, the case also held that the employer must not dismiss the employee without according the employee his/her right to be fairly heard before an impartial administrative panel before sanctioning the employee, in keeping with the provisions of section 36 of the 1999 Constitution, which provides for fair hearing. That the claimant did not by oral or written evidence show that the Investigative Panel infringed on his right to fair hearing during the Panel’s investigation upon which the Panel gave its recommendations after finding the claimant and his team liable. That the defendant on its part did not contravene or infringe on the claimant’s right to fair hearing as a six-man panel was set up to investigate the alleged extra loading of the MT Tutuma vessel and it was on the basis of the Panel’s finding of the claimant and his colleagues liable that the defendant proceeded to dismiss the claimant. Accordingly, that where an employer gives an erring employee a chance to appear before an administrative panel of inquiry, and such an employer is found liable, the employer will not be deem to have infringed on the employee’s right to fair hearing, citing Stephen Izonebi v. Federal Civil Service Commission & 2 ors (unreported Suit No. NICN/ABJ/240/2013, judgment delivered on 11 February 2013. 55. The defendant went on that from the plethora of decision of the courts, an employer who dismisses its employee without resource to the court is not in contraventions of any extant law(s). That an employer has the power to discipline an employee for an infraction on its code of conduct irrespective of any other action that may be taken by the public prosecutorial agencies or authorities against an employee or even in the absence of such prosecutorial actions, citing Folami v. Union Bank of Nigeria (unreported NICN/LA/627/2013, delivered on 29 September 2015), Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc (unreported Suit No. NICN/LA/308/2013, judgment delivered on 15 April 2015 and Raymond S. Dongtoe v. Civil Service Commission Plateau State [2001] LPELR-959(SC). Thus, that the defendant in the instant case can dismiss its employee (the claimant) without the verdict of a court finding the claimant guilty of fraud, urging the Court to so hold. 56. For the claimant’s issue (c) i.e.whether the claimant proved his case as to be entitled to the reliefs he seeks, the defendant referred to Jubril v. Military Administrator, Kwara State [2007] 3 NWLR (Pt. 2021) 357 and Unilorin v. Oluwadare [2003] 3 NWLR (Pt. 808) 557 in urging the Court graciously to hold that the claimant from his evidence failed to prove that this dismissal by the defendant was in disregard of the recommendations of the Investigative Panel borne out of bad faith, malice amongst others as claimed or that his dismissal was not within the powers of the defendant and thus unlawful. 57. Furthermore, that there is no evidence before the Court of the claimant’s salaries, remuneration, allowances, benefits, gratuities, pension all such other entitlement accruable to the claimant by virtue of his office as special damages upon which the Court can decide after admission, denial or contest by the defendant of such. That it is trite that special damages must be strictly proved for the Court to grant same. In the same vein there is no evidence before the Court of the cost of filing this suit as claimed by the claimant. Accordingly, the claimant has not proved his case as to entitle him to the reliefs sought in this suit. 58. In conclusion, the defendant urged the Court to dismiss the claimant’s suit as same is lacking in merit and vexatious. COURT’S DECISION 59. I have given due consideration to all the processes and submissions of the parties. The claimant had raised issues as to the weight or probative value to be ascribed to Exhibits D1, D2 and D3. These exhibits are respectively the “Minutes of WRPC/PPMC Cordination Meeting” held on 01/08/05, 02/08/05 and 03/08/05. They are each headed as “Internal Memorandum”. They each have the list of attendance; after which, they have the statement: “The meeting commenced at 1045 hrs”. Incidentally, the three meetings all commenced at “1045 hrs”. After this, we have “Highlights” and what “Action” is to be taken — all of which are in box form. The minutes then end with the statement: “The meeting ended by…” For the meetings of 01/08/05 and 02/08/05, the meeting on the two days ended at exactly “1125 hrs”. For that of 03/08/05, it ended at “1150 hrs”. Otti F. (described in the attendance as reporting) signed all the three minutes. Atarie S. O was described as Chairman of the meeting of 01/08/05, while Odumah P. L was described as Chairperson of the two meetings of 02/08/05 and 03/08/05. 60. The grouse of the claimant is that Exhibits D1, D2 and D3 sought to be relied upon as minutes of meetings cannot by any stretch of imagination be said to be minutes of meetings in the proper sense of the word. That the said purported minutes of meetings contained highlights of several statements. There is nothing in any of the documents to suggest what was discussed, who raised such discussion and deliberations made. Accordingly, that the Court should not ascribe any probative value to them as they are vague, illusory and sketchy. The New Oxford American Dictionary defines minutes as: “a summarized record of the proceedings at a meeting”; and “an official memorandum authorizing or recommending a course of action”. Exhibits D1, D2 and D3 meet this definition. And so the argument of the claimant that no probative value should be ascribed to Exhibits D1, D2 and D3 holds no ground. The said argument is hereby discountenanced and so rejected. I so hold. 61. What exactly is the claimant’s case? This question is necessary given the stance of the defendant that the claimant went outside his case in the manner his final written address was presented. Before answering this question, however, I intend to make an assessment of some of the pleadings/evidence of especially the claimant. 62. In paragraph 7 of his statement of facts (as supported by paragraph 7 of the claimant’s deposition of 19 September 2018), the claimant pleaded that it was his subordinate (Olofu F. I.) who, in the absence of the claimant, raised the 4,000 metric tons ticket to WRPC Jetty to load. The claimant repeated this in paragraph 2(i) of his reply to the statement of defence dated 10 May 2019. I must note that Mr F. I. Olotu was, however, not called in evidence. 63. In paragraph 14 of the statement of facts (as supported by paragraph 14 of the claimant’s deposition of 19 September 2018), the claimant pleaded that by the practice approved by the GMD’s office, its is acceptable standard to bill a customer for excess quantity of product loaded if an error as in the instant case occurred. This is a pleading as to customary practice. The evidence for this must be corroborated. In other words, it must go beyond the claimant’s ipse dixit. In any event, in paragraph 8(c), (d) and (e) of the defendant’s statement of defence of 21 January 2019, the defendant specifically denied this, thus putting the claimant to the strictest proof. 64. In Miss Funke Adesina-Lawal v. St. Nicholas Hospital unreported Suit No. NICN/LA/389/2014, the judgment of which was delivered on 27 May 2020, this Court held thus in paragraphs 46 and 47: [46] To prove her case, the claimant gave evidence on her behalf. She did not call any other witness. This naturally calls to question some of the pieces of evidence she offered. First is her evidence that it is the practice of the defendant to schedule only one nurse to attend to a particular floor during night shifts. Under cross-examination, she also testified that in bed-bathing a patient, it is standard practice to have one registered nurse with 2 auxiliary nurses, or at least one auxiliary nurse. In law, this is evidence of common or customary practice. And in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016, I put the law in these words: …The rule is that evidence of customary practice (and customary procedure) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in Queen v. Chief Ozogula [1962] WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors [1968] 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt.388) 142 at 165 and Orlu v. Gogo-Abite [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify. [47] In the instant case, the evidence of the claimant as to the practice of the defendant to schedule only one nurse to attend to a particular floor during night shifts as well as that of having one registered nurse and 2 auxiliary nurses (or at least one) bed-bath a patient is one that is not corroborated by any other piece of evidence. It is thus unsafe for me to accept just her testimony in that regard. I so hold. 65. What this means is that in present case, it is unsafe to accept just paragraph 14 of the claimant’s deposition as the evidence proving paragraph 14 of the statement of facts. I so hold. 66. The pleading of the claimant in paragraph 15 of his statement of facts (as supported by paragraph 15 of the claimant’s deposition of 19 September 2018) as to the lapses in loading being due largely to “general communication gaps inherent in the system that was being operated then” approximates to customary practice and yields to the same standard of proof i.e. corroboration required for customary practice, which corroboration was not supplied by the claimant. And so it is equally unsafe to just accept paragraph 15 of the deposition as proving the pleading in paragraph 15 of the statement of facts. I so hold. 67. The concluding words of paragraph 20 and the whole of paragraph 21, both of the claimant’s deposition of 19 September 2018, are not supported by the claimant’s pleadings. These two paragraphs state thus: 20. …I…did not attend the PPMC operations meeting and the joint WRPC/PPMC daily coordination meeting wherein the loading of the tutuma was discussed let alone introduced any figure apart from the figure contained in the ticket raised by my department in my absence. 21. That i was not in the said meeting because i was outside Warri on official duty. 68. The law is that evidence without pleading goes to no issue. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129, which held that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. Accordingly, the concluding part of paragraph 20 as well as paragraph 21 of the claimant’s deposition of 19 September 2018 are depositions (and hence evidence) without pleadings. They go to no issue. I so hold. 69. The defendant’s pleading in paragraph 12(b) of the statement of defence of 21 January 2019 to the effect that “the Claimant in the meetings preceding the loading of the said product in the said vessel did not correct the fictitious nomination figure in excess raised in the meetings and their minutes there from”, in suggesting that the claimant attended “the meetings” does not cure the requirement of pleadings on the part of the claimant since the key reliefs (1 and 2) of the claimant pray for declarations, and declarations must be proved on the strength of the claimant’s evidence, not the weakness of the defendant’s or even its admission. Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, states that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. See also Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4 December 2018. 70. Talking about evidence without pleading, I must state here and at once that DW’s evidence under cross-examination to the effect that “when loading is due, it is a radio message that is sent as to the quantity to be loaded” and “at the point of loading, the Jetty operators work with the radio message, not the meter tickets”, in talking about radio message, is evidence without pleading. The evidence of DW also under cross-examination to the effect that in his “deposition, there is no where that I mentioned radio message” attests to this. Accordingly, this piece of evidence goes to no issue. I so hold. 71. In paragraph 5 of the reply to the statement of defence dated 10 May 2019, the claimant averring as to the defendant’s bad faith stated thus: …the defendant acted maliciously and in a bad faith in its selective dismissal of the claimant because several others recommended for disciplinary measures remained on their seats whilst one was transferred with promotion. Also the oil marketer was not in any way sanctioned. 72. This pleading is general and sweeping. The “several others recommended for disciplinary measures” who “remained on their seats” are not disclosed to this Court. The one who “was transferred with promotion” is not disclosed either. I note here that the claimant’s case is not one of unfair labour practice where comparison would be needed. In Mr Gabriel Aghuno v. John Holt Plc unreported Suit No. NICN/LA/349/2013, the judgment of which was delivered on 15 May 2018 at paragraph 41, this Court held thus: …in labour relations, a claimant must found his action on his own right and entitlement, not on the right or entitlement of another. See Stephen Ayaogu & ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/NICN/38/2010, the judgment of which was delivered on 27th October 2017, which held thus: “…save for a case of unfair labour practice…a claimant can only found his case on the strength of his right and entitlement, not on that of another person”. Even in cases of unfair labour practice, the claimant must first plead and show/prove his own entitlement and the instrument that bestows the entitlement before making comparison with another’s entitlement. See also Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20 March 2018. 73. In paragraph 8 of his reply to the statement of defence dated 10 May 2019, the claimant in the last sentence pleaded thus: The selective and malicious punishment meted out to the claimant and some members of his team was eventually investigated by the former Petroleum minister, Engr. R. Lukeman and the two colleagues of the claimant that wrote to the then minister, namely: Nakande I. S and Odumah P. L had their cases reviewed, but unfortunately they are all dead now and would have been called as witnesses in this matter. 74. This is new pleading introduced for the first time in the reply to the statement of defence. By Ughutevbe v. Shonowo & anor [2004] LPELR-3317(SC); [2004] 16 NWLR (Pt. 899) 300; [2004] 18 NSCQR 741, “...a plaintiff may file a reply to the statement of defence but such a pleading, not being a petition or summons, shall except by way of amendment, raise no new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same”. See also Oscar Concord Finance and Securities Ltd v. Ogunleye [2007] LPELR-8719(CA), which quoted and applied Prof N. O. Adeniji v. Prof B. I. A. Fetuga [1990] 6 NWLR (Pt. 150) 375. Accordingly, the above quoted part of paragraph 8 of the reply to the statement of defence is not sustainable and so must be struck out and hence discountenanced for purposes of this suit. I so hold. 75. Now I go back to the question I asked earlier: what exactly is the claimant’s case? We must look at the claimant’s reliefs, and of course his pleadings, in other to distill his case. The golden rule by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, is: A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same… In other words, since a claim is circumscribed by the reliefs claimed, it is the reliefs that predominate in determining the case of the claimant. 76. In Exhibit C6, the Pre-Action Notice of 26 July 2018, the claimant’s counsel made out the case of the claimant. Under “Specific Cause of Action”, he indicated two specific causes of action, which are: 1. The dismissal of our client having not been done in accordance with the recommendation of the investigating panel was done in bad fate (sic), malicious and against the clear provision of extant laws (Assuming without conceding that the panel’s recommendation is sustainable). 2. The selective recommendation of our client for dismissal against the recommendation of the investigation whilst absolving several other members of staff who were involved in the same loading operation was done in bad fate (sic), maliciously and capriciously (Assuming without conceding that the panel’s recommendation is sustainable). 77. Despite the reservation in both causes of action typified by the words “Assuming without conceding that the panel’s recommendation is sustainable”, the claimant was more certain in his statement of facts as to what his case is. In paragraph 32 of his statement of facts (as supported by paragraph 33 of his deposition of 19 September 2018), and in capital letters, he put his case thus: The claimant shall at the trial of this suit contend that his dismissal by the defendant was done maliciously, in bad fate (sic) and outside the recommendation of the Investigative Panel whereof the plaintiff has suffered loss and damages. Note the absence of the words, “Assuming without conceding that the panel’s recommendation is sustainable” in the claimant’s pleadings and depoistion. 78. The claimant did not mince words that this is his case i.e. the defendant going outside of the recommendation of the Investigative Panel. Impliedly, the claimant accepts the recommendation of the Investigative Panel. His only grouse is that the defendant went beyond the said recommendation. It is because the defendant went outside of the recommendation of the Investigative Panel that the claimant prays for the other reliefs: an order setting aside the dismissal (relief 3); in which event he should be reinstated or properly retired (relief 4) and paid his accrued salaries from 25 October 2005 till date (relief 5). In this sense, I agree with the defendant that, in the main, the claimant went outside of his case in the manner he framed and discussed the issues discussed in his final written address. 79. So, what exactly did the Investigative Panel recommend? This can be found in the Reports of the Investigation Panel on Product Top-Up MT Tutuma Overloading Warri—September 2005 annexed to Exhibit C6 (the Pre-Action Notice). In this report, despite finding (as per paragraph 11 at page 21) that “there were lapses, especially communication gaps, between coordinating SBUs, Departments and Sections/Units in the handling of nomination, programming, tank farm and jetty operations generally”, which “lapses from the events leading to programming of the vessel without sighting the authentic nomination paper confirmed deliberate act of negligence with the intent to overload”, the Panel at pages 23 to 24 recommended as follows in respect of the claimant: EXTENT OF INVOLVEMENT He had a copy of the nomination paper, attended both the PPMC operations meetings and the joint WRPC/PPMC daily coordination meetings where the TUTUMA loading of 3rd August 2005 was discussed. He was among the party that introduced the 5,000mt figure of the coordination meeting. He was also the Secretary to the PPMC in-house operations meetings where the TUTUMA was discussed prior to loading. RECOMMENDATION Acted without due diligence on the job. He is also recommended for retirement. 80. The defendant did not accept this recommendation. In the letter to Mr President asking for approval to dismiss the claimant, also attached to Exhibit C6, the defendant first stated that it is because the claimant and six others acted without due diligence, negligence and/or deliberate oversight and being directly associated with the malpractice that they were recommended for retirement. However, that because of the seriousness of the situation and in order to deter others from getting involved in such malpractice in the future, the defendant is instead recommending the claimant and six others for dismissal. Mr President approved the recommendation for dismissal on 19 October 2005. A letter of dismissal dated 25 October 2005 (Exhibit C4) was then issued to the claimant effective same 25 October 2005. 81. Now, like I pointed out earlier, I read the claimant as having accepted the recommendation of the Investigating Panel given the manner paragraph 32 of his statement of facts (and supported by paragraph 33 of his deposition of 19 September 2018) and reliefs (1) and (2) are couched. I also read the defendant as accepting the findings of the Investigative Panel — the defendant’s grouse being the recommendation as to retirement; preferring instead the dismissal of the claimant. 82. The fact of the claimant’s case being his quarrel with the defendant going outside of the recommendation of the Investigative Panel is encapsulated in the claimant’s reliefs (1) and (2), which are also declaratory. The legal question arising, therefore, is whether the defendant has the right to act beyond the recommendation of the Investigative Panel. In other words, can an employer (such as the defendant in this case) reject the recommendation (as to sanction) of the investigation panel it set up and substitute it with a harsher sanction? The law, by Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC, is that an employer has the discretion to give a lesser punishment to an employee but he has no discretion to give a higher punishment than that prescribed. This rule, however, works in terms of the contract of employment and/or conditions of service. In other words, while within the contract/conditions of service an employer can give a lesser punishment, it cannot substitute a higher punishment than that prescribed by the contract/conditions of service. But this is not exactly the issue before the Court. 83. The issue presently before the Court is whether the employer can reject the recommended sanction of the investigative panel and substitute it with a higher sanction, which higher sanction is provided for in the contract/conditions of service. In other words, the employer did not go beyond or outside of the contract/conditions of service. The defendant in the instant case said it acted under the Public Service Rules (PSR) — and the claimant did not counter this. Even when in relief (1) the claimant talked of his dismissal by the defendant being “in utter disregard of the recommendation of the Investigative Panel” and “was done in bad fate (sic), malicious and against the clear provisions of extant laws”, the claimant did not refer this Court to the extant laws he talks of. If the extant laws included the PSR, the claimant did not say so. 84. I must state categorically that even when the defendant said it acted under the PSR, other than the reference to Rule 030401 of the PSR, which defined “serious misconduct”, the defendant did not refer this Court to any specific rule that authorizes it to jettison the recommendation as to sanction of the Investigative Panel in favor of a higher sanction. 85. So, since the defendant referred to the PSR and the claimant did not counter it, I took time to go through the rules dealing with disciplinary procedure in the PSR. In particular, the disciplinary procedure for misconduct and serious misconduct is governed by Rules 030305, 030306 and 030307 of the PSR. Of course, other rules cover other aspects of discipline such as query as can be found generally in Chapter 3 of the PSR. For present purposes, I am more concerned with whether the rules of the disciplinary procedure allow an employer to jettison the recommendation as to sanction of a panel for a higher sanction. 86. The procedure I talk of can be found in Rule 030307 of the PSR. A careful reading of this rule will show that the setting up of a board of inquiry (analogous to our Investigative Panel in the instant case) to look into a disciplinary case is allowed. This is what the sub-rules of Rule 030307 say regarding the report of the said board of inquiry: (x) If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken. (xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended. (xii) If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him/her to retire, the Commission shall, without further proceedings, direct accordingly. 87. As can be seen, Rule 030307 is silent on the specific issue whether the Commission can jettison the sanction recommended for a higher sanction. Even when Rule 030307(x) talks of the Commission considering the report of the board and dismissing the employee, it is silent on whether this should be over and above what is recommended by the board. I am not unmindful of the possibility that Rule 030307(x) can be read as authorizing the Commission to override the report of the board including its recommendation. This interpretation is possible only if so implied. It will not be the product of specific and direct words of Rule 030307(x). A standard rule in labour law is that ambiguity must be resolved in favour of the employee. See Mr M. A. Chiroma v. Forte Oil Plc unreported Suit No. NICN/ABJ/165/2018, the judgment of which was delivered on 2 May 2019 and James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12 July 2016. 88. Is there case law authorities on the subject? In Oloruntoba-Oju & ors v. Abdul-Raheem & ors [2009] LPELR-2596(SC); [2009] 13 NWLR (Pt. 1157) 83, the Supreme Court quoted University of Nigeria Teaching Hospital Management Board v. Nnoli [1994] 8 NWLR (Pt. 363) 376 at 404 thus: In the observance of the principles of natural justice and the essential requirement of fair hearing there is a distinction between the recommendation of an investigative panel which has no statutory powers and the action on the recommendation by statutory body with requisite statutory powers, whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated like the appellants in this case, the acting upon such recommendation does. Hence implementation of the recommendation by a statutory body must comply strictly with rules of natural justice. This case acknowledged that there is a distinction between the recommendation of an investigative panel and the action on the recommendation. 89. A similar question arose before my colleague Hon, Justice Z. M. Bashir of the Port Harcourt Division of the Court. The question was put thus in Mrs Priscilia Kio Ojei v. Central Bank of Nigeria unreported Suit No. NICN/PHC/66/2019, the judgment of which was delivered on 3 February 2021 (the judgment is, however, available at https://judgement.nicnadr.gov.ng/details.php?id=5687 as accessed on 24 July 2021): The only bone of contention is whether the Defendant should have been dismissed despite the recommendation of the CDC and whether she was found guilty of grave misconduct, which is the reason for the dismissal. 90. The claimant in Mrs Priscilia Kio Ojei v. CBN had been queried and investigated for an infraction. At the end of the investigation, the investigation panel recommended that she be issued “a warning letter with full effect”. The defendant jettisoned this recommendation and instead dismissed the claimant. Her Ladyship Bashir J first found thus: …this court is convinced beyond doubt that the Claimant was not punished under the appropriate provision of the Human Resource Policy and Procedure Manual as she was charged under Chapter 6.3.1.2. (ii) which provides for termination but punished under Chapter 6.3.1.2.(i) which provides for dismissal. And then for present purposes held thus: …I find it apposite to state that the Claimant’s dismissal is also a far cry from the recommendation of the Committee which was set up by the Defendant as the Committee merely recommended that the Claimant should be issued a warning letter with full effect and the reason for the recommendation is not farfetched as the Committee stated to the effect that her failure to comply with the established rule and regulation in the posting of the cheque without number is due to skill gap and not with an ulterior motive. The witnesses called by the Defendant i.e. DW1 and DW2 in their testimonies under cross examination also confirmed that the recommended sanction was to issue warning letter to the Claimant. One would then wonder on what basis the Claimant was Dismissed in the face of the overwhelming evidence before this court. I should also add that the testimony of DW1 who stated that the recommendation of the CDC is subject to a higher authority is of no moment as that higher authority is not known before this court and the reason why the higher authority jettisoned the recommendation is also not before this court. 91. In the instant case, the Investigative Panel actually found the claimant to have “acted without due diligence on the job”, hence the recommendation for claimant’s retirement. It was the defendant in the later to Mr President who extended this to read that the claimant and six others acted without due diligence, negligence and/or deliberate oversight and being directly associated with the malpractice that they were recommended for retirement. Acting without due diligence is actually another name for negligence. And under Rule 030301(h) of the PSR, negligence qualifies only as misconduct, not serious misconduct as the defendant seems to assume. 92. The said Rule 030301 defines misconduct as: “a specific act of wrongdoing or improper behaviour which is inimical to the image of the service and which can be investigated and proved. It can also lead to termination or retirement”. In other words, the punishment for negligence is termination or retirement. It should be noted that I pointed out earlier that the defendant accepted the findings of the Investigative Panel. So, the defendant, in substituting the recommendation for retirement with dismissal, must be read to have acted, certainly not within the appropriate rule of PSR as it argued. This in itself is wrong of the defendant. I so hold. So, in colouring the claimant’s infraction as serious enough to warrant dismissal in the letter to Mr President, the defendant went outside of the appropriate rule of the PSR and so acted wrongly. I so hold. 93. I am persuaded by the reasoning in Mrs Priscilia Kio Ojei v. CBN to, therefore, hold that the defendant not only got the claimant to be punished under an inappropriate rule of the PSR but that in recommending a punishment higher than that recommended, the defendant went beyond its powers, and so acted wrongly. For this reason, relief (1) and hence relief (3) are grantable; and are hereby granted. 94. It is the further case of the claimant that notwithstanding the criminal nature of the allegation against him (bothering on fraud), the said Panel without recourse to the police for investigation, charge of the claimant to court and subsequent pronouncement of guilt, recommended the compulsory retirement of the claimant from the service of the defendant. As argued by the defendant, I do not agree with the claimant on this score. The Supreme Court in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 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 necessary nor required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In fact, AG, Kwara State v. Ojulari [2007] 1 NWLR (Pt. 1016) 551 CA held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case. The argument of the claimant here, accordingly holds no ground and so is hereby discountenanced. 95. Relief (2) as claimed by the claimant cannot be granted given that it has not been proved. I held earlier that paragraph 5 of the reply to the statement of defence dated 10 May 2019, where the claimant averred as to “selective dismissal of the claimant because several others recommended for disciplinary measures remained on their seats whilst one was transferred with promotion” was a sweeping and general pleading. No proof of these “several others” was given to the Court. And in the context of relief (2), who are the “several other members of the defendant’s staff in the loading operation in question”? The Court was not told. Relief (2) accordingly fails and so is hereby dismissed. 96. Having set aside the dismissal, is the remedy of the claimant one of reinstatement or retirement? Rule 030301 of the PSR talks of only termination or retirement. Reinstatement is not mentioned or envisaged. Accordingly, relief (4) is grantable only in terms of retirement, not reinstatement. I so hold and grant. 97. To the extent that relief (5) is a prayer for “accrued salaries, remuneration, allowances, benefits” from 25 October 2005 (the date of the claimant’s retirement) to date, and having held that the claimant accepted the findings of the Investigative Panel and its recommendation, the talk of “accrued salaries, remuneration, allowances, benefits” does not arise at all. Relief (5) to that extent fails and so is hereby dismissed. 98. However, in holding that the claimant’s dismissal is set aside and substituted with retirement, the claimant is entitled to his gratuity (if any) and his pension. I so hold. Even here, the relief grantable is as to entitlement only, not as to the quantum since this was not proved to the Court. Relief (5) is thus grantable in terms of entitlement to gratuity and pension. I so hold and grant. 99. Relief (6) is for post judgment interest at 10%. The claimant did not prove the quantum of any of his entitlement to gratuity and pension. As such, this relief cannot be granted. It is hereby rejected. 100. Relief (7) is for cost. Although cost follows event in litigation, the award of cost is at the discretion of the court. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), Anyaegbunam v. Osaka [1993] 5 NWLR (Pt. 294) 449 and Obayagbona v. Obazee [1972] 5 SC 247. I must, however, state that beyond the usual rhetoric of having suffered untold hardship, the claimant put nothing before the Court as to the quantum of the cost he is praying for. 101. On the whole, and for the reasons given, the claimant’s case succeeds in part, in terms already stated. Accordingly, I make the following declaration and orders: (1) It is hereby declared that the dismissal of the claimant by the defendant in utter disregard of the recommendation of the Investigative Panel was done in bad faith, malicious and outside of the law. (2) The dismissal of the claimant by the defendant having been done maliciously and in bad faith is hereby set aside. (3) The defendant is hereby ordered to properly retire the claimant with effect from 25 October 2005. (4) Upon the proper retirement of the claimant, the defendant shall pay to the claimant his gratuity (if any) and pension. 102. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD