SALIMAN V. KWARAPOLY

Sometime in 2004, Saliman, the appellant, had been employed in the Kwara State Polytechnic, Ilorin. He claimed to be a hardworking, responsible and result oriented employee.

Apparently, he had worked so hard and diligently that for the 21 years he had served in the polytechnic, he had never been queried in his capacity as an office holder.

This ethical and professional background was enough to shock anyone into silence when his employment with the polytechnic was terminated through a letter dated 15^th April, 2004. A day before, he had received a letter of suspension, which basically said that he had to stop work for a while so the college would aggregate its findings and decide on the next course of action. So, imagine the shock when the next day, he was slammed with a termination letter. As expected, he was annoyed and aggrieved and they joined issues.

NOTE:

HISTORY OF THE CASE

Name of High Court: High Court of Kwara State, Ilorin.

Name of Judge: Gbadeyan, J.

Date of Judgement: Tuesday, 13^th July, 2004.

We already know what happened that made Saliman, the plaintiff, initiate legal action [ he was sacked before he could blink an eye] but we should also look at exactly what transpired between the parties when they got to court. To start this process, On the 13^th July, 2004, the plaintiff originated summons in accordance to what was prescribed in Order 6 Rule 2 of the High Court [Civil Procedure] Rules.

The summons put the constitutionality and legality of the actions of the defendants to question, and sought a full reinstatement to his office, and the defendants publicly acknowledging that they had done wrong by illegally terminating his employment on fraud charges, without giving him a chance to prepare a defence.

The 1st and 2nd defendants co-signed an affidavit denouncing all the allegations of the plaintiff. They disclosed that the 1st Defendant, Kwara State Polytechnic, had set up an adhoc committee to perform a forensic audit of the Bursary Unit of the polytechnic and that Saliman, amongst others, had been shortlisted and found wanting. The 1st and 2nd defendants submitted that all the individuals whom had allegations labelled against them had been invited by the investigation Committee, set up for that sole purpose, and had presented their defences.

The Trial Judge dismissed the claims of the plaintiff after proper consideration of the assertions put to the court by the defendant and the plaintiff. The plaintiff was aggrieved and went forward on Appeal.

Division of Court of Appeal: Court of Appeal, Ilorin

Names of Justices that sat on the appeal: Muhammad Saifullahi   Muntaka-Coomassie [reading the leading judgement]; Aboyi John Ikongbeh, J.C.A.; Tijjani Abdullahi, J.C.A.

Appeal No: CA/IL/12/2005

Date of Judgement: Wednesday, 19^th October, 2005

On the 14th December, 2004, the aggrieved appellant filed a notice of appeal stating six grounds of appeal. Pursuant to the Court of Appeal rules [civil procedure] Order 6 Rule 2, before the commencement of the hearing before the court, the parties involved exchanged briefs of argument. In furtherance, the appellant filed a reply brief.

The issues originated for determination by in the appellant’s brief were as follows;

1. Whether the trial judge was not wrong for holding that the dismissal of the appellant was legal and constitutional despite the affidavits and evidential material presented before the court
2. Whether the learned trial judge was not wrong to have held that there is no more requirement for court to pronounce on allegations bordering on criminality before dismissal knowing fully well the contractual employment in place.

The First and Second respondents designed two issues for the consideration of the appeal as follows;

1. Whether with all circumstantial evidence surrounding the dismissal of the appellant, the act had been carried out lawfully
2. Whether it is an all-round-rule that before an employee’s employment can be terminated on allegations of ‘gross misconduct, the employee had to be tried in a court of law.

The issues formulated by the 3rd defendant for formulation were thus;

1. Whether the learned trial judge was right for holding that the dismissal of the appellant was constitutional and legal
2. Whether the trial judge was right to have held that there is no statutory requirement for a court to adjudicate an allegation bordering on criminality before the dismissal of the employee. 

Muntaka-Coomassie J.C.A, in reading the leading judgements stated that, since all issues raised by parties to the case bordered on the constitutionality of the dismissal and the necessity of a conviction in a court of law before dismissal, his judgement would be read jointly.

In stating his argument, Counsel for the appellant communicated that the appellant had been denied the right to fair hearing; a right which had been duly provided for in not only Section 36 of the Nigerian Constitution 1999[as amended], but also by the Section 33 of the State Polytechnic Law Cap. 20, Laws of Kwara State 1994.

He contended that the suspension letter which had been delivered, and stated by the respondents to be a notice, was invalid as it did not originate from the 2nd respondent, whom was authorised to deliver such notices. He also argued that the right to properly prepare and state one’s defence, which is part and parcel of the right to fair hearing, constitutionally guaranteed in Section 33[1][c] of the constitution, had been denied the appellant.

NOTE

To be fair to my lecturers [because lessons are crap], if there is one thing that has managed to be drummed into my head through countless exercises and sermons, it is that the law would always give consideration to whosever’s human rights have been abused. In this case, it is fair hearing, in another, it might be the right to life. It’s fair to say that, whenever the court tries to hack a case, extreme attention is paid to the party with an issue bordering on rights and personal liberties.

Moving Forward…

To buttress the argument on the denial of the Right to Fair hearing, the dates of the suspension and termination letters were considered. Only a day apart. If the defendants, for some reason, claim that they had indeed summoned the appellant to make his defence, when was it done? In the night? Or??

SIDENOTE: This is what I call a comical moment in law. This is when a party in a bid to make a defence can concoct any and everything, but it still flops. When I read this earlier, I imagined the appellant facing the tribunal that evening and laughing at all their allegations. In my mind, that must have been the reason he was fired.

According to the respondents, the suspension and subsequent termination letters had not flown out of thin air [ like a fair Godmother], they were as a result of a probe that had been carried out earlier that year, In January, to be precise. Going by the respondent’s account of the incident, the appellant had been well aware of the allegations and had been invited to present his defence, together with some other individuals.

 However, with all the counter-claims the defendants made, they were yet to produce the place the committee had holden; the member constitution of the committee, in fact one Pastor M. O. Salami that had been presented as one of the members of the committee backtracked and said he had never participated in the proceedings; the accurate number of people that had appeared before the committee; the allegations[proper] against the other persons; and the findings of the committee.

SIDENOTE:

Right now, we can see the parties are at a headlock. The defendants insist that they had actually summoned this man, and this man had presented his defence but still lost. To the defendants, they are justified for terminating his employment. Meanwhile, the counsel for the appellant is NOT taking any casualties, everything must be burnt to the ground!

The absence of key elements that could prove the defendants did actually organise a committee to look into the bursary department, and the lack of a notice letter! Things are getting freaky. So, actually, there is a little chance the defendants actually invited the appellant to a committee, but what if it is not the expected committee, and so they are not ready to mention that in court? What if they met at night, naked with a huge fire in their middle, that counts for something yeah?

Moving Forward [pardon me, my talent is digressing]

Basically, the argument the counsel for the appellant is pitching [and quite successfully] is that the appellant had already been condemned without a fair trial. The Government publication [White paper in this instance] which had already been circulated in January 2004 of that year had done its findings and without even summoning the affected person for submission of defence, had condemned them.

SIDE NOTE: To sound more ‘legal-lish’, it is very important to use the right terms. Don’t be like me and be spinning grammar. The right term is “Condemnation without Trial”

The counsel for the defendant, in making his case [ aka trying to rubbish the work his learned brother had made] stated that the whole case could not ne hinged solely on Section 33 of the Polytechnic law. It had to be applied and read jointly with Sections 14 and 15 which vested on whatever bodies comprising the 1st respondent, Kwara State Polytechnic, to give force to instructions by a visiting body [ such as a body charged with doing a forensic audit]. Accordingly, the suspension and subsequent termination letters had been dispersed based on directives received from the 3rd respondent, The Executive Governor, Kwara State.

The defendant’s counsel also said, regarding the instalment of the appellant, that it had already been established that the appointment of the appellant could be terminated by the defendant with a one month’s notice in writing, or in its stead, an advance payment of one month’s salary could pass. He posited that the appellant had, in his capacity, stolen more than N177,000 and as such could not be reinstated.

SIDE NOTE: Okay, this far the counsel for the defendants has vehemently, fervently, vigorously [insert other synonyms] refused to ever reinstate the appellant. Remember this was the second relief he sought in his brief? To be honest, this makes sense, would you want to rehire someone you suspect of stealing from you? They clearly did not want to be burdened by someone with sticky fingers.

The counsel for the 1st and 2nd respondents also stated that an administrative panel could not be equated, nor expected to perform the duties of the traditional court in handling of criminal and civil affairs. However, in a Master-Servant relationship where a certain right or privilege had been endowed on the servant by the master, the master has a right to preside over its affairs.

This just means that an administrative tribunal, such as the committee in the instant case the defendants are adamant was constituted to investigate the affairs of the accused persons, the employer reserved the right to dismiss and terminate the employee without necessary settlement in the court. For this system to be practically functional, two things must be proving;

The administrative panel acted fairly and justly, not necessarily judicially and/or

The employee involved had admitted his guilt, not under pressure or anything.

SIDE NOTE: The Master-Servant relationship being referenced here does not necessarily refer to the system of servitude or colonial feudalism. This is a metaphorical statement of power dynamics in society, and in the workplace as in the instant case. It just goes to say that some particular people wield a certain degree of power or influence over others, and the relationship can be likened to that of a Master and his Slave.

HELD (Drumroll, please)

1. On Procedure for dismissal of a Rector, Deputy Rector, or a confirmed member of the Academic or Senior Administrative or Technical Staff of Kwara State Polytechnic – Section 33[1] of the State Polytechnic Law of Kwara State, 1994 provides that before any of the persons aforementioned can be disciplined or removed from office, the council has to ensure that; the concerned individual has bee given notice; an Investigation Committee had to be created to fairly investigate the issue; the person in question is invited to adequately state his defence.
2. On When accused employee can be dismissed summarily without recourse to the court – This can only take place when the individual in question is given an opportunity to state his defence.
3. On When accused employee can be dismissed summarily without recourse to court for criminal prosecution – In such a situation where rights have been granted to one party by the other, the employee can only be dismissed when; the tribunal constituted to investigate have acted fairly and justly, and not necessarily judicially and/or; the individual in question has admitted guilt to the alleged crime.
4. On When court can order re-instalment of dismissed employee – When it is sufficiently proven that an employee has been slighted by his employers, the next step is to order an instalment. The court does not take into consideration if the employers feel burdened by the employee
5. On Construction of clear and unambiguous words in a statute – When the provisions of a statute and clear and straight to the point, they should be interpreted in their ordinary firm. The only exception would be if an interpretation in their ordinary form would result in an absurdity in law.