Download PDF
JUDGMENT This action was initially commenced at the Federal High Court Abuja on the 14th day of February 2007. The suit was transferred to the National Industrial Court by an order of transfer made by Hon. Justice B. F. M. Nyako on the 24th day of March 2016. In a further amended statement of facts filed by the Claimant on 19th July 2018 but deemed filed on 15th October 2018, the Claimant sought the following reliefs against the Defendant: 1. A Declaration that the Defendant’s letter with Reference No. NERDC/08/VOL.1/181 dated 25th September 2006 and signed by B.I. Akinwande, Deputy Director, Administration and Supply, purporting to dismiss the Claimant from the service of the Defendant is invalid, null and void and of no legal effect whatsoever. 2. A Declaration that the Defendant’s letter with Reference No. NERDC/081/1/123 dated 25th July 2006 purporting to interdict the Claimant is null, void and of no legal effect. 3. A Declaration that the Claimant being a public officer holding a permanent and pensionable appointment is still an officer or employee or staff of the Defendant and still entitled to remain in the service of the Defendant till 2019 to receive her salaries, allowances, benefits, remunerations, privileges and/or emoluments attached to her office until her employment is lawfully determined. 4. An Order directing the Defendant by itself, its appropriate officers or Board to reinstate the Claimant forthwith to her office and status as employee or staff of the Defendant and directing the payment of the Claimant’s full salaries, allowances and entitlements from the date of the purported interdiction and dismissal till reinstatement. 5. Cost of this suit. 6. Other reliefs as the honourable court may deem fit and proper to make in the circumstance. Hearing commenced on the 11th day of December 2018. The Claimant testified for herself as CW1. One Anande Peter Terkula, the Defendant’s Director, Human Resource Department testified on behalf of the Defendant as DW1. Hearing ended on 25th June 2019 and parties were ordered to file Final Addresses. These were accordingly filed and regularised. Parties adopted their respective Final Written Addresses on the 13th day of November 2019. CLAIMANT’S CASE The Claimant testified in her case as the only witness. The case of the Claimant is that she was employed by the Defendant, which is established by statute, in a letter of appointment dated 31st August 1982 as a Senior Educational Research Officer on salary Grade 10, Step 2. Her employment was regulated by the Public Service Rules and the Defendant’s condition of service. She rose to the position of Chief Research Officer. She made a request to attend the World Forum on Early Care and Education in Montreal, Canada, but the request was refused. She became ill thereafter and went to the hospital where she was given sick off-duty for some days. During the period of the sick off duty, she decided to visit some relations in Canada. She also used the opportunity of the trip to attend the world forum on a personal basis. She was issued a query by the Defendant on 12th September 2005 and she replied same. She denied the allegations against her. She was later summoned to appear before the Senior Staff Committee to make her representation. At the committee proceedings, she was not given access to the documents used against her and she was not given fair hearing. The Defendant placed her on interdiction on the directives of the Minister of Education and directed her to appear before the Appointments and Promotion Committee of the Governing Board of the Defendant. She appeared before the committee but she was not given access to the documents relied on by the committee or given fair hearing. She received a letter dated 25th September 2006 dismissing her from the employment. The dismissal letter was signed by B.I. Akinwande, a Deputy Director, Administration and Supplies of the Defendant. This person is not the proper person to sign the dismissal letter because she was a Chief Research Officer on Grade Level 14 due to retire in 2019. She replied the dismissal letter and informed the Defendant that the dismissal and interdiction were null and void as the disciplinary procedure was not in accordance with the law. The Defendant’s action was not in accordance with laid down procedure and the law. The actions of the Defendant violated the provision of the PSR, particularly Rules 04302-04306, and the provisions of the Act establishing the Defendant in the following manner: she was not given notice of the reason for her removal by the Board, the Senior Staff Committee had no power to determine disciplinary action against her in view of her Grade Level, she was not given opportunity to see the documents relied on by the committee in dismissing her and that the dismissal letter was not signed by the Chairman of the Governing Board as required by law. The Claimant tendered some documents in evidence in support of her case. They are marked Exhibits A, B, C, D, E, F, G and H. During the Claimant’s cross examination, the Defendant’s counsel tendered Exhibits J1, J2, J3, J4, K, LI, L2, L3 and L4 through the Claimant. DEFENDANT’S CASE The Defendant filed a further amended statement of defence on 14th March 2019, but deemed filed 15th March 2019, and called one witness in defence of the suit. The Defendant’s witness is Mr. Anande Terkula Peter, Director, Human Resources Department of the Defendant. The Defendant’s case is that in 2005 the Claimant applied for permission to attend the World Forum on Early Care and Education in Montreal, Canada, on behalf of Nigeria as a representative of the Defendant from 16th to 20th May 2005. The Claimant’s application was not approved because of an outstanding disciplinary case against the Claimant, but the Claimant travelled to Canada to attend the programme without approval. While in Canada, the Claimant procured a false sick leave certificate from Wuse General Hospital which she used to pretend that her absence from work was on ground of ill health. The conduct of the Claimant amounted to gross misconduct under the civil service rules and the Defendant’s handbook. The Claimant was issued a query to explain why she should not be disciplined for travelling outside Nigeria without approval. The Claimant’s answer to the query was not satisfactory and she later on admitted she travelled to the world forum without approval. Upon the Claimant’s answer to the query, the matter was presented to the Management Committee of the Defendant. The Management Committee referred the matter to the Senior Staff Committee to deliberate and recommend appropriate punishment. The Claimant was invited to the proceedings of the Senior Staff Committee, she was informed the reason for the disciplinary proceedings, she appeared before the committee and gave her side of the case. After appearing before the Senior Staff Committee, the Claimant wrote a letter of appeal to the Executive Secretary of the Defendant. The committee considered documents before it and after thorough deliberations, the Claimant was found to have travelled to Canada without permission and presented a forged sick leave certificate to the Defendant to found her absence from duty from 16th to 20th May 2005. The committee recommended the dismissal of the claimant from service. While the disciplinary procedure was going on, the Claimant petitioned the Minister of Education to intervene but when the Defendant explained to the Minister, the Minister recommended the interdiction of the Claimant. On 6th June 2005, the Board of the Defendant approved the interdiction of the Claimant and a letter dated 3rd July 2005 was given to the Claimant. The Defendant further averred that the Claimant was not denied access to any document. She did not request for any document and no extra-ordinary document was used in the committee proceedings. The Management Committee considered the recommendations of the Senior Staff Committee and upheld the recommendation. The Management Committee referred the case to the Governing Board through the Board’s Appointments and Promotion Committee. The Governing Board invited the Claimant to appear before it on 4/8/2006 to hear her case. The Claimant appeared and was heard. The Board considered her response and approved the dismissal of the Claimant. The Chairman of the Board directed the Executive Secretary to issue the Claimant a dismissal letter. The dismissal letter was properly signed by a Director upon instruction. The Defendant fully complied with the law and procedure relating to the dismissal of the Claimant. The Claimant was notified of the reason for the disciplinary action and she was dismissed in accordance with law and procedure set out in by the Civil Service Rules and Defendant’s hand book. DW 1 tendered the Defendant’s handbook in evidence. It is Exhibit M. DEFENDANT’S FINAL WRITTEN ADDRESS In the Defendant’s in final written address filed on 7th October 2019, learned counsel formulated the following issues for determination: 1. Whether the disciplinary procedure laid down in the Defendant Staff Condition of Service was followed in the proceedings leading to the termination of the Claimant's employment. 2. Whether the Claimant was not given fair hearing in the process leading to the termination of her appointment. 3. Whether the Claimant has proved her case on the preponderance of evidence to be entitled to the reliefs sought in this matter. On Issue One, it was the submission of learned counsel for the Defendant that the Claimant has admitted to have travelled to Montreal Canada for the Early Child Care programme; and the law is firmly settled that facts admitted need no further Proof. See the cases of MOZIE & ORS vs. MBAMALU & ORS I (2006) 12 SCM (Pt.1) 306 at 317. Counsel also submitted that from pleading and evidence adduced before the Court, the Claimant was confronted with the allegation against her, the Claimant was aware of the allegation against her, the Claimant admitted the allegations against her, but still the Claimant was given that opportunity to be heard before her appointment was terminated. Counsel referred the court to Sections 129 and 130 of the Evidence Act 2011 and to the case of JACK vs. WHITE (2001) FWLR (Pt. 43) 247. Further, counsel submitted that the Claimant was aware of the allegations against her and cannot allege that her right to fair hearing was infringed upon. Counsel placed reliance on the authorities of OSUN STATE INEC vs. AC 47 NSCQLR 178 at 256-257 and INOGHA MFA & ORS vs. MFA INONGHA (2014) LPELR-22010 (SC). See also YUSUF vs. UBN LTD (1996) LPELR-3537 (SC); 1996) 6 NWLR (Pt.457) 63. It was the submission of the Defendants counsel that once a person made presentation to a disciplinary body or an administrative body in writing and a decision is reached upon consideration of the presentation, a person is foreclosed from complaining that he was not given fair hearing. See DUKE vs. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) LPELR-19887(SC). Counsel also submitted that the Claimant admitted all the allegations against her by appealing for leniency hence it was too late for the Claimant to hide under the cloak of fair hearing to escape punishment for her established misconduct. Counsel submitted that the Claimant did not deny paragraphs 15, 16, 18, 19, 20, 21, 22, 23 and 24 of the Defendant’s statement of defence which explains how the Claimant's matter was handled by council and same are deemed admitted. Counsel added that even under cross-examination, the Defendant's witness was not contradicted; he stood his ground that the Claimant was given fair hearing. See the case of MICHAEL ACHILU & 8 ORS vs. EZEKIEL ANYATONWU (2013) Vol 220 LRCN 215 @ 224; (2013) 12 NWLR (Pt. 1368). Counsel urged the court to hold that the Claimant was not denied fair hearing. On Issue Two, the Defendant’s counsel submitted that the Claimant's case which is hinged on staff condition of service and the Public Service Rules that were not in existence at the time the disciplinary proceeding which led to the termination of the Claimant's appointment with the Defendant already has a bad foundation. Counsel argued that the Claimant had failed to establish her case that her disciplinary procedure was not in accordance with the law as the applicable law to a cause of action is the law in force at the time the cause of action accrued and not the one when the case was instituted in court. See ISAAC OBIWEUBI vs. CENTRAL BANK OF NIGERIA (2011) 11 NWLR (Pt. 1247) 465 and JESSICA TRADING CO LTD vs. BENDEL INS. CO. LTD (1996) 10 NWLR (Pt. 476) 7 at P 12. Counsel argued that the consequence of the Claimant's actions in this case is that she has ab initio failed to establish her case and that her disciplinary procedure was not in accordance with the law. Counsel submitted that the law states that it is the person who alleges a fact that has the duty to prove it. See the case of CPC vs. INEC & ORS (2011) LPELR - 8257 (SC) where the Supreme Court considered and interpreted the provisions of Sections 131, and 132 of the Evidence Act 2011. Counsel emphasized that the Claimant has failed woefully to prove her claims that her appointment was terminated without due process of law. Counsel argued that the duty on the Claimant to establish that he is entitled to the declarations sought is very high. See AG RIVERS STATE vs. AG BAYELSA STATE [2013] 3 NWLR (Pt. 1340) @ 123 particularly at 160-161 Paras G-B and NEXT INT. LTD. vs. OBATOYINBO (2013) All FWLR (Pt. 701) @ p. 1549 p. 1570, paras A-B, p 1574, paras C-D). See also NWAOGU vs. ATUMA (2013) Vol. 221 LRCN (Pt. 2) and I.N.E.C vs. ATUMA [2013) 11 NWLR (Pt. 1366) @ P.494. The Defendant’s Counsel submitted that that the Claimant in her letter to the Executive Secretary appealed for leniency, thereby admitting the commission of the misconduct alleged against her. Counsel further argued that even though the Claimant has failed to prove that the disciplinary proceedings leading to the termination of her appointment were not in accordance with the disciplinary procedure in force at the time her appointment was terminated, the Defendant has pleaded and proved that the disciplinary procedure was complied with in line with the extant Staff Condition of Service of the Defendant in force as at September, 2006. Counsel referred the court to Chapter Nine of the Staff Condition of Service of the Defendant tendered by the Defendant, particularly, paragraph 9.01 and 9.09. Counsel notified the court that the Claimant has not challenged the pleadings and the evidence adduced by the Defendant’s witness as it relates to the procedure followed by the Defendant. Counsel urged the court to hold that the disciplinary action taken against the Claimant followed due process of law and dismiss the Claimant's case against the Defendant with substantial cost. On Issue Three, it was the submission of the Defendant’s counsel that the law is trite that he who alleges must prove, and the burden of proof in civil matters is on the party who will fail if there is no evidence to prove the allegation made in a suit. See ODOM vs. PDP (2015) 61 NSCQR 986 @ 1035. Counsel relied on the submissions canvassed in the preceding issues for determination and submitted that the Evidence placed before this Court by the Claimant is grossly insufficient to warrant this court to enter judgment in the Claimant's favour. In other words, it is the submission of the Defendant that the Claimant has failed woefully to prove this case to be entitled to judgment in her favour. Counsel referred the court to the case of CHIEF EDMUND I. AKANIWO & ORS vs. CHIEF O. N. NSIRM & ORS (2008) LPELR 321 and submitted that parties to a suit are enjoined to be consistent in their cases. Counsel also submitted that the Claimant has failed to give evidence on the right procedure to be followed in disciplining a staff of her rank and the Claimant has failed to prove how she was denied fair hearing. Counsel urged the Court to hold that the Claimant failed to prove her case and must therefore be dismissed. Also, according to Counsel, the failure of the Claimant to have filed her reply to the Defendant's further amended Statement of Defence is an admission of the facts alleged therein. Counsel urged the court to hold that the Claimant failed to discharge the burden on her to prove that her appointment was wrongfully terminated; especially after admitting the allegations against her in writing and appealing to the Council for leniency. CLAIMANT’S FINAL WRITTEN ADDRESS In the Claimant’s final written address filed on 23rd October 2019, learned counsel formulated the following issues for determination: 1. Whether or not the Claimant was absent from duty against the extant law of the Defendant. 2. Whether or not the Claimant was denied fair hearing before her dismissal. 3. Whether or not the Claimant was validly dismissed as allowed by law. On Issue One, Counsel argued that in matters of discipline or termination or dismissal in employment with statutory flavour, the procedure laid down in the statute or regulations must be strictly complied with. Counsel referred the court to the case of ILOBACHIE vs. PHILIPS (2002) 14 NWLR (Pt. 787) 264. Counsel further submitted that the Claimant’s appointment is with statutory flavour and this has not been disputed by the Defendant. Counsel made reference to Chapter 9, rule 9.01 of the NIGERIAN EDUCATIONAL RESEARCH AND DEV COUNCIL (NERDC) staff condition of service. Counsel submitted that the Defendant cannot go outside the Public Service Rules and NERDC staff conditions of service which regulate the relationship between the Claimant and the Defendant. Counsel further argued that the Defendant was wrong to begin to fish for evidence to nail the Claimant. See the case of A.B.U vs. MOLOKWU (2003) 9 NWLR (Pt. 825) 265 at 284. Counsel reiterated that the Claimants dismissal was uncalled for as the Claimant did not absent herself from work without leave as provided under Rule 030413 of the NERDC, and urged the court to allow the claims of the Claimant. On Issue Two, counsel submitted that the Claimant was denied fair hearing per chapter 9, paragraph 9.05- 9.10 of the NERDC, and argued that the necessary procedures were not followed by the Defendant in dismissing the Claimant. Counsel argued that aside the fact that the reason given for the dismissal was not tenable, the senior staff committee had no power in determining disciplinary action against the Claimant having regard to her Grade Level 10 as Senior Staff of the Defendant. Counsel added that the Claimant was not afforded the opportunity of seeing the documents relied upon by the said Committee in trying her. Counsel submitted that all the actions of the Defendant are not only against the NERDC and Public Service Rules particularly 030413 and therefore invalid null and void and of no effect whatsoever. The committee set up was not Senior Staff Committee and was not in a position to investigate the Claimant. Counsel urged the court to take judicial notice of the authority of HOPE UZODINMA vs. SENATOR OSITA IZUNASO (2011) 9 EPR 757 and the Public Service Rules and the staff conditions of service of the Nigerian Educational Research Development Council listed and exhibited by the Defendant as applicable to this suit. It was the contention of counsel that an amended Public Service Rules is unheard of as it is always the same. Counsel urged the court to grant the Claimant's claims. In Conclusion counsel contended that fair hearing denotes hearing all parties See the case of EGBUCHU vs. CBM (2016) 65 NSCQR 901 at 920. Counsel added that the totality of the above has denied the Claimant fair hearing. See EPEROKUN vs. EKUNDAYO (2016) 7 NILRC 236 at 255. On Issue Three, counsel Counsel referred the court to the case of MICHAEL NZEKWE vs. EFCC Suit No NICN/ABJ/112/14 reported in page 442 of the Book in honour of Hon Justice B.A. Adejumo, OFR, - An Uncommon Jurist, edited by Funmilayo A. Quadri (Mrs.) Esq, and argued against the validity of the Claimant’s dismissal, submitting that it was a staff below Level 10, a Deputy Director, Mrs. Akinwade, a junior colleague of the Claimant that dismissed the Claimant, which is against Civil Service Rules 030413. Counsel urged the court to take judicial notice of Rule 030413 and argued that even where neither of the two parties tendered the Public Service Rules, the court can take judicial notice of it by virtue of the case of INAKOJU vs. ADELEKE (2007) 29 NSCQR 958. See the case of A.B.U. vs. MOLOKWU (2003) 9 NWLR (Pt. 825) 265 at 284. Counsel urged the defendant to prove that the Claimant’s medical certificate is forged, arguing that the Defendant had all the opportunity to go to FCT Medical Centre to investigate Exhibit H but failed to do so. Counsel referred the court to the case of AGBI vs. OGBEH (2006) 26 NSCQR 7257. In line with Counsel’s earlier arguments, the Claimant counsel submitted that the Claimant was not given fair hearing as all documents used against her by the Defendant's committee were not brought to her attention to enable her prepare adequately for her defence. Counsel emphasized that the Claimant was not validly dismissed as it was not an appropriate body that sat and dismissed/ terminate her appointment. Counsel urged the Court to allow the case of the Claimant. COURT’S DECISION The Claimant was a staff of the Defendant until she was dismissed from the employment by the Defendant in a letter dated 25th September 2006. This letter is Exhibit E. The Claimant said she received the dismissal letter on 20th November 2006. In the dismissal letter, the Claimant was dismissed for the misconduct of absence from duty without approval. Dissatisfied with the dismissal, the Claimant brought this suit where she asserts that her dismissal is of no effect and she sought orders to set aside the dismissal. In the evidence adduced by the Claimant, she made the following complaints against her dismissal: She was not given fair hearing and the documents used against her before the disciplinary committees were not shown to her; the dismissal letter was not signed by the proper person, that is, it was not signed by the Chairman of the Board; the disciplinary action against her was not in accordance with procedure and law and it was contrary to the provisions of the Public Service Rules; she was not given notice of her removal and that the Senior Staff Committee has no power to discipline her in view of her grade level. In defence of the allegations of the Claimant, the Defendant averred that the Claimant was dismissed in accordance with the law and procedure set out in the civil service rules and in the Defendant’s hand book. Before the Claimant’s dismissal, she was issued a query, invited to appear before Senior Staff Committee and she was given fair by the committee. The Claimant was also notified of the reason for the disciplinary action. Besides the fact that no extra-ordinary document was used in the committee proceedings, the Claimant did not request for any document neither was she denied access to any document. The Chairman of the Board directed the Executive Secretary to issue the Claimant a dismissal letter. The dismissal letter was properly signed by a Director upon the instruction of the Board Chairman. From the facts of the case, it is clear to me that the Claimant did apply to the Defendant for permission to attend the World Forum on Early Care and Education in Montreal, Canada, which held from 16th to 20th May 2005. The Defendant did not approve the application. The Claimant, nonetheless, travelled to Canada at the period and attended the World Forum. Her case is that she was ill at the time and she was given sick off-duty by the hospital for some days. During the period of the sick off duty, she decided to visit some relations in Canada and also used the opportunity of the trip to attend the World Forum. The off-duty certificate referred to by the Claimant is Exhibit H. It was issued by the FCT Health Services and stamped by the Wuse General Hospital, Abuja. The date on the certificate shows that it was issued on 23rd May 2005. The Claimant’s excuse for travelling to Canada to attend the world forum which held from 16th to 20th May 2005 was that she was sick and she was given six days sick-off duty. The off-duty certificate was issued on 23rd May 2005. I observe that the Claimant had travelled to Canada and attended the world forum before the sick off duty certificate was issued. The implication is that she did not attend the world forum on the basis any sick off duty given to her. Furthermore, I find her story that she was sick at the time of her trip to Canada to be implausible. If she was sick and given off duty, it is expected that the period was to be used to treat herself, rest and recuperate from the illness and not to junket on the strenuous journey to visit relations in far away Canada. Even in Canada, the Claimant did not rest or attend hospital for medical treatment. She rather used her time to attend the world forum. I do not think she was sick at all. Her sick story does not add up. The world forum was even over before the sick off-duty was issued. Clearly, the sick off-duty was not her basis for travelling to Canada. I do not also think the Claimant’s visit to Canada at the same time the world forum held was a coincidence. The Claimant embarked on the trip to attend the world forum despite the fact that the Defendant refused to grant her permission. The Claimant abandoned her work within the period. As a consequence, the Defendant issued her a query and she appeared before the Senior Staff Committee. The Claimant was found guilty of the misconduct of absence from duty without permission and she was dismissed. The issue to consider at this point is whether the dismissal of the Claimant followed the laid down procedure for dismissal in the Defendant’s employment. In paragraph 2 of the further amended statement of facts, the Claimant pleaded that the Defendant is established under the Nigerian Educational Research and Development Council Act, CAP 105, LFN 1990. In paragraph 3, the Claimant further averred that her appointment was regulated by the public service rules and the Defendant’s condition of service. The Defendant admitted these averments and further stated in paragraph 33 of the further amended statement of defence that the Claimant was dismissed in accordance with the requirements of the civil service rules and staff condition of service. In effect, it is not in dispute in this case that the Claimant’s employment was regulated by the PSR and the Defendant’s condition of service. The Defendant is established in Section 1 of the Nigerian Educational Research and Development Council Act, LFN 2004. In Section 12 and 13 of the Act, the procedure for the removal of senior and junior staff of the Defendant from the employment was set out. Section 12 [6] of the Nigerian Educational Research and Development Council Act also empowered the Board to make regulations for the discipline of staff and workers of the Defendant as it may think fit. Two different conditions of service of the Defendant were tendered in evidence in this case. The Claimant tendered one admitted as Exhibit G while the Defendant’s witness tendered the other admitted as Exhibit M. These conditions of service were applicable at different times in the Defendant’s employment, Exhibit G being more recent. The question however is which one of them was applicable to the Claimant’s employment as at the time of her dismissal from the employment. Exhibit M was the condition of service effective from 1st January 1989. It seems it was replaced by Exhibit G but the date Exhibit G became effective is not expressly stated. However, it contains some dates which are, in themselves, conflicting. The front page of Exhibit G contains that it is a Second Edition of November 2007 but the next pages [pages i and ii] contain that it is a Second Edition of November 2006. The foreword and preface of the document were signed by the Chairman of the Board and the Executive Secretary respectively. The date these parts of the document were signed is said to be May 2007. In view of the dates the preface and foreword of the condition of service were made, it raises a presumption that the condition of service was made in 2007. The Claimant was dismissed in September 2006. She said she received the dismissal letter on 20th November 2006. The Claimant had been dismissed before Exhibit G was made. Exhibit G was not the condition of service which regulated the Claimant’s employment. It was Exhibit M. Therefore, the Defendant’s conditions of service to be examined in determining the Claimant’s allegation of unlawful dismissal in this case, in addition to other statutory provisions, is Exhibit M. From the facts of the case of the parties and the provisions of the Nigerian Educational Research and Development Council Act, it is without any doubt that the Claimant’s employment was one protected by statute. It is trite that where the terms and conditions of a contract of employment are specifically provided for by statute, it is said to be an employment with statutory flavour or contract protected by statute. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; OKWUSIDI vs. LADOKE AKINTOLA UNIVERSITY (2012) All FWLR (Pt. 632) 1774 at 1786. She cannot be validly removed from the employment by dismissal without strictly complying with the procedure set out in the Act, the Defendant’s condition of service and the PSR. See ADENIYI vs. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (Pt. 300) 426; OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 42. The Claimant said she was in Grade Level 14 at the time of her dismissal. In paragraph 1.01 [ix] of Exhibit M, senior staff is defined as a staff on grade Level 7 to 15. Thus, the Claimant was a senior staff at the time of her dismissal. The provision of the Nigerian Educational Research and Development Council Act for removal of senior staff from the employment on disciplinary grounds is contained in Section 12 [1] of the Act. It provides as follows- “(1) If it appears to the Board that there are reasons for believing that any person employed as a member of the senior staff of the Council other than the executive secretary should be removed from office on grounds of misconduct or inability to perform the functions of his office, the Board shall- (a) give notice of those reasons to the person concerned; (b) afford him an opportunity of making representations on the matter to the Board in person; (c) if the person concerned or any three members of the Board so request within the period of one month beginning with the date of the notice, make arrangements- (i) for a committee of the Board to investigate the matter and to report on it to the Board; and (ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee on the matter; and (iii) if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may remove the person concerned by an instrument in writing signed by the chairman of the Board. Paragraph 9.09 of the condition of service, Exhibit M, provides as follows: “If the nature of an alleged misconduct is such as to warrant dismissal, the following procedure shall be followed: a. The employee shall be notified in writing of the grounds upon which it is intended to dismiss him and he shall be given opportunity to defend himself. b. The investigation shall be initiated by the executive secretary. c. If any witnesses are called to give evidence, the employee shall be entitled to be present and to put questions to them. d. No documentary evidence shall normally be used against the employee unless he has previously been supplied with a copy thereof or given access thereto.” From the above provisions of the Act and the condition of service, before the Claimant can be dismissed, the following procedure must be followed: 1. She must be given notice of the reasons or grounds upon which she is sought to be dismissed. 2. She must be afforded an opportunity of appearing before and being heard by the investigating committee. 3. If witnesses were called to testify before the committee, the Claimant is entitled to be present during the evidence of the witnesses and to put questions to the witnesses. 4. The Claimant is also entitled to be given copies or access to documents to be used against her by the committee 5. She must also be given the opportunity of making representations on the matter to the Board in person. 6. If the Board, after considering the report of the investigating committee, is satisfied that the Claimant should be dismissed, the Board may dismiss the Claimant by an instrument in writing signed by the Chairman of the Board. The first allegation of the Claimant against the dismissal is that she was not given fair hearing by both the Senior Staff Committee and the Appointments and Promotion Committee of the Governing Board. Similarly, she alleged that she was not given opportunity to see the documents relied on by the committees in recommending her dismissal and that she was not given notice of the reason for her removal by the Board. She said however that she was given a query which she answered and she appeared before the Senior Staff Committee and the Appointments and Promotion Committee of the Governing Board of the defendant to make her representation. The Defendant’s witness told the court that the Claimant was issued a query to explain why she should not be disciplined for travelling outside Nigeria without approval. The Claimant answered the query but her response was not satisfactory prompting the Management Committee of the Defendant to refer the matter to the Senior Staff Committee to deliberate and recommend appropriate punishment. The Claimant was invited to the proceedings of the Senior Staff Committee and she was informed the reason for the disciplinary proceedings. She appeared before the committee and gave her side of the case. The committee recommended the dismissal of the Claimant from service after which management committee further referred the case to the Governing Board. The Governing Board invited the Claimant to appear before it on 4/8/2006 to hear her case. The Claimant appeared and was heard. The Board considered her response and approved the dismissal of the Claimant. The query issued to the Claimant is Exhibit D dated 12th September 2005. The Claimant was alleged to have been absent from the office from 16/5/2005 to 20/5/2005 despite the refusal of her application for permission to attend the world forum. She was requested to explain why disciplinary action should not be taken against her for travelling out of the country to attend the world forum without the approval of the Executive Secretary. The Claimant said she replied this query where she clearly denied the allegations. However, she did not tender a copy of her reply in evidence. The evidence of DW1 shows that the Claimant responded to the query. The Claimant further said that after the reply to the query, she was invited to appear before the senior staff committee. Under cross examination, the Claimant was confronted with the invitation letters and she identified them. The invitation letters were admitted in evidence as Exhibits J1, J2 and J3. The first of the invitation letters is Exhibit J1 dated 16th January 2006. The heading and content of the letter show that the committee’s proceeding was in respect of the query issued to the Claimant for attending the world forum. This was the same allegation for which the Claimant was dismissed. The Claimant was given notice of the ground or reason for her dismissal. The Claimant said she honoured the invitation and appeared before the committee to make her representation. Under cross examination, she told the court she was invited three times but she attended twice. On the third invitation, she wrote the committee a letter to excuse her absence on ground of ill health. The letter, dated 31/1/2006, is Exhibit K. The Claimant also said she appeared before the Appointments and Promotion Committee of the Governing Board. Having attended the committees’ proceedings, the Claimant alleges she was not given fair hearing by these committees. She did not state the manner in which she was not given fair hearing. It is not sufficient for a Claimant to merely allege that she was not given fair hearing. She must go further to explain the manner in which fair hearing was denied. It is not the duty of the court either to assume, from the mere allegation of denial of fair hearing, that the Claimant was denied fair hearing by the committees. The fact that she appeared before the committees is indicative of the fact that she went there to defend herself as she was invited to do. If anything happed otherwise in the proceedings of the committees, it is for the Claimant to say so. In this case, she did not give any particulars of the manner she was denied fair hearing. The Claimant, in view of Section 12 [1] of the Nigerian Educational Research and Development Council Act and paragraph 9.09 of the Defendant’s condition of service, is entitled to make representations in defence of the allegations against her before the committees and entitled to be present when witnesses testify against her. The Claimant did not say any of these did not happen. The Defendant did aver that the Claimant was given fair hearing by both the Senior Staff Committee and the Governing Board. DW1 said in his evidence that the Claimant appeared before the Senior Staff Committee and she gave her side of the case. She also appeared before the Governing Board on 4/8/2006 and she was heard. It was after the Board considered the Claimant’s response that it approved her dismissal. The Claimant did not traverse these facts. The Claimant also alleged that she was not given access to the documents used against her or relied on by the committees. The question arising from this allegation of the Claimant is this: What are these documents used against her or relied on by the committees? DW1 has explained that the Claimant was not denied access to any document neither did she request for any document. DW1 also stated that there was no extra-ordinary document that was used in the committees’ proceedings. By these averments, the burden is placed on the Claimant to show that documents were used in the committee proceedings which she ought to be given access to but she was not given. The Claimant has not mentioned any document in her pleading or evidence which was used against her but which was not made available to her. How can this court believe that documents were used against her before the committees without the Claimant having to first draw the court’s attention to such documents? It is only after the Claimant has done so that the Defendant will be required to explain whether or not the Claimant was given access to such documents before the committee proceedings. The Claimant also complained that the Senior Staff Committee has no power to discipline her in view of her grade level. By the provisions of the Nigerian Educational Research and Development Council Act, the Claimant was right to say the Senior Staff Committee has no power to discipline her. The power to discipline the Claimant is with the Board of the Defendant. I must say however that the SSC did not discipline the Claimant. From the facts of the case and content of the dismissal letter, the decision for the Claimant’s dismissal was taken by the Board. The SSC only recommended the Claimant’s dismissal after investigating the allegation against the Claimant. I have considered the Claimant’s allegation that she was denied fair hearing and access to the documents used by the committees against her but I find no merits in the allegations. The Claimant is unable to prove these allegations. In her evidence, the Claimant stated that her dismissal letter was signed by one B.I. Akinwande, who was a Deputy Director, Administration and Supplies of the Defendant. She said the dismissal letter was a ruse because the person who signed it is not the proper person to sign the dismissal letter as she was a Chief Research Officer in Grade level 14 due to retire in 2019. She further said the dismissal letter was not signed by the Chairman of the Governing Board as required by law. In response to this allegation, the Defendant averred that the dismissal letter was properly signed by a Director upon the instruction of the Chairman of the Board to the Executive Secretary to issue the Claimant a dismissal letter. Section 12 [1] c] iii of the Nigerian Educational Research and Development Council Act provides that where the Board decides to dismiss a staff, the Board may dismiss the staff by an instrument in writing signed by the Chairman of the Board. What this means is that where a staff of the Defendant is dismissed by the Board of the Defendant, the dismissal letter is to be signed by the Chairman of the Board. The dismissal letter of the Claimant, Exhibit E, was signed by B.I. Akinwande [Mrs], Deputy Director, Admin and Supplies for Executive Secretary. The letter was not signed by the Chairman of the Board and the officer who signed it did not indicate that it was signed for or on behalf of the Chairman of the Board. The Executive Secretary on whose behalf the officer signed the letter is not the Chairman of the Board. I have also read the content of the letter but I didn’t find any where it is indicated that the Chairman of the Board delegated the function to the Executive Secretary or to B.I. Akinwande or anybody else. Let me mention that there is no provision in the Act empowering the Chairman to delegate the function to anybody. Even if there is a chance the Chairman can delegate the function, the delegation cannot be implied. There must be evidence of actual or express delegation of the authority to sign the dismissal letter. See BAMGBOYE vs. UNIVERSITY OF ILORIN (2001) FWLR (Pt.32) 12 at 51. There is no such evidence of delegation of authority from the Chairman of the Board to B.I. Akinwande who signed the letter. The Claimant’s dismissal letter was not signed in the manner prescribed by the Nigerian Educational Research and Development Council Act. In relief 2, the Claimant sought a declaration that the Defendant’s letter with reference no. NERDC/081/1/123 dated 25th July 2006 purporting to interdict the Claimant is null, void and of no legal effect. The few words she said about this claim in her evidence are that the Defendant placed her on interdiction on the directives of the Minister of Education. That is all she said. No reference was made in the pleading or evidence to the letter of interdiction. She did not also tell the court the reason or reasons why the interdiction should be declared null and void. The Claimant did not give sufficient facts or adduce enough evidence to support this claim. I have considered all the issues raised by the Claimant with respect to her dismissal from the Defendant’s employment and I find merit only in her allegation that the dismissal letter was not signed by the Chairman of the Board. Where statute prescribes a way to do a thing, that thing cannot be done in any other way. The fact that the dismissal letter was not signed in the manner prescribed by statute nullifies and voids the dismissal letter. Consequently, the dismissal letter is hereby set aside. The effect is that the Claimant has not been dismissed from the employment. The purported dismissal is equally hereby voided. In OKEME vs. CIVIL SERVICE COMMISSION, EDO STATE (2001) FWLR (Pt. 36) 873 at 884, it was held that where a civil servant is removed from office without recourse to or in the manner not in line with the applicable rules, the termination will be null and void. In relief 4 of the further amended statement of facts, the Claimant sought an order of re-instatement and payment of her salaries, allowances and entitlement from the date of her interdiction and dismissal to the date of her reinstatement. The Claimant didn’t mention anywhere in her pleading or evidence that her salary was stopped pursuant to the interdiction. This court cannot therefore consider the claim for payment of her outstanding salaries from the date of the interdiction. It is the law that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once a dismissal of employment is declared null and void, there is nothing legally standing in the way of the employee from having his or her job back with its attendant rights, benefits and privileges. See KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 199. In such a situation, the court has the power to order the reinstatement of the employee. The right to be reinstated is a right that follows a declaration that termination was unlawful, null and void. In the circumstance of this case where it has been found that the contract of employment is guided by statute, the Claimant is entitled to a consequential relief of reinstatement and payment of her outstanding salaries, allowances and entitlements from the time she was unlawfully dismissed from employment. See OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807; OKEME vs. CIVIL SERVICE COMMISSION, EDO STATE (supra) at 884 The Claimant has stated in her evidence that she was due to retire from service of the Defendant in 2019. She did not mention the exact date she was due to retire. By this time of this judgment, the Claimant ought to have retired from the employment. It may become impossible for her to continue in the employment on grounds of retirement. In that case, she is entitled to her unpaid salaries and allowances from the date of dismissal to date of retirement and her retirement benefits. In the result, the Claimant’s claims in reliefs 1, 3 and 4 succeed. I make the following orders: 1. It is declared that the Defendant’s letter with Reference No. NERDC/08/VOL.1/181 dated 25th September 2006 and signed by B.I. Akinwande, Deputy Director, Administration and Supply, purporting to dismiss the Claimant from the service of the defendant is invalid, null and void and of no legal effect whatsoever. 2. It is further declared that the Claimant being a public officer holding a permanent and pensionable appointment is still an officer or employee or staff of the Defendant and still entitled to remain in the service of the Defendant till 2019 to receive her salaries, allowances, benefits, remunerations, privileges and/or emoluments attached to her office until her employment is lawfully determined. 3. The Defendant is ordered to reinstate the Claimant to the employment forthwith. However, if she has attained retirement age in the employment as at the date of this judgement, she is to be retired accordingly and paid all her retirement benefits. 4. The Defendant is ordered to pay the Claimant all her salaries, allowances and other entitlements she is entitled to from the date of her dismissal, being 25th September 2006, to the date of her due retirement. 5. The Defendant must comply with the orders in 3 and 4 above within 30 days from the date of this judgement. 6. The cost of N200,000 is also awarded to the Claimant against the Defendant. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge